Eastern Texas R. Co. v. Railroad Commission of Texas

• Citation: 242 F. 300
• Decision Date: 20 April 1917
• Docket Number: 295.
• Parties: EASTERN TEXAS R. CO. et al. v. RAILROAD COMMISSION OF TEXAS et al. GULF, T. & W. RY. CO. et al. v. SAME.
• Court: U.S. District Court — Western District of Texas

242 F. 300

EASTERN TEXAS R. CO. et al. v. RAILROAD COMMISSION OF TEXAS et al.

GULF, T. & W. RY. CO. et al. v. SAME.

No. 295.

United States District Court, W.D. Texas, Austin Division.

April 20, 1917

J. W Terry, of Galveston, Tex., H. M. Garwood, of Houston, Tex Hiram Glass, of Austin, Tex., and A. H. McKnight, of Dallas Tex. (T. J. Freeman, of New Orleans, La., S. B. Dabney, of Houston, Tex., C. C. Huff and E. B. Perkins, both of Dallas Tex., E. B. Parker, of Houston, Tex., George Thompson, of Ft. Worth, Tex., and Frank Andrews, of Houston, Tex., of counsel), for plaintiffs.

Luther Nickels and C. M. Cureton, Asst. Attys. Gen., of Texas (B. F. Looney, Atty. Gen., of Texas, and S. C. Rowe, of Ft. Worth, Tex., of counsel), for defendants.

Blackburn Esterline, Sp. Asst. U.S. Atty. Gen., for the United States.

Joseph W. Folk, of Washington, D.C. (Charles W. Needham, of Washington, D.C., of counsel), for Interstate Commerce Commission.

Wylie M. Barrow, Asst. Atty. Gen., of Louisiana, for intervener Railroad Commission of Louisiana.

S. H. Cowan, of Ft. Worth, Tex., and N. A. Stedman, of Austin, Tex., for Dallas Freight Bureau and Ft. Worth Freight Bureau.

Paul Kayser, of Houston, Tex. (Huggins & Kayser, of Houston, Tex., of counsel), for interveners Houston Chamber of Commerce and others.

Before PARDEE, WALKER, and BATTS, Circuit Judges.

PARDEE, Circuit Judge.

This suit grows out of an order of the Interstate Commerce Commission of July 7, 1916, made and entered in five consolidated cases, entitled: Railroad Commission of Louisiana v. Aransas Harbor Terminal Railway Company et al., docket No. 8418; Railway Commission of Louisiana v. St. Louis Southwestern Railway Company et al., docket No. 3918; Railroad Commission of Louisiana v. St. Louis, San Francisco & Texas Railway Company, docket No. 8290; Eastern Class Rates Investigation and Suspension, docket No. 710; and Class Rates to Shreveport, Louisiana, Investigation and Suspension, docket No. 729.

The order in question is very lengthy and not necessary to give in full. A large part of the order relates to the discrimination then practiced between Shreveport, La., and all points in Texas, and provides for discontinuance of this discrimination, and elaborately provides for maximum rates between Shreveport and all points in Texas, and orders defendants to establish on or before November 1, 1916, on notice to the Interstate Commerce Commission and the general public by not less than 30 days of filing, rates in accordance with the orders of the commission.

The tenth, eleventh, and twelfth paragraphs of the order are particularly pertinent on this hearing. They are as follows:

(10) It is further ordered, that said defendants be, and they are hereby, notified and required to establish, on or before November 1, 1916, upon like notice, and thereafter to maintain and apply to the transportation of property between Shreveport, La., and points in the state of Texas, class rates and rates on the above-named commodities not in excess of those contemporaneously applied by them for the transportation of like property for like distances between points in the state of Texas, except in those instances in which the rates between Texas points have been depressed by reason of water competition along the Gulf of Mexico or waters contiguous thereto.

(11) It is further ordered, that said defendants be, and they are hereby, notified and required to cease and desist, on or before November 1, 1916, and thereafter to abstain, from maintaining and applying to the transportation of property between points in Texas the classification provisions at present maintained and applied to such transportation.

(12) It is further ordered, that said defendants be, and they are hereby, notified and required to establish on or before November 1, 1916, upon like notice, and thereafter to maintain and apply to the transportation of property between points in Texas, the provisions of the current western classification in effect at the time such traffic moves.

Preparatory to filing tariffs in compliance with the commission's order of July 7, 1916, the carriers representing 80 per cent. of the railroad mileage in the state of Texas and affected by the order of July 7, 1916, filed their bill in this court on September 4, 1916, for an injunction, joining as parties defendant the Railroad Commission of Texas, together with its individual members, the Attorney General of the State of Texas, and certain Texas shippers, reciting the proceedings before the Interstate Commerce Commission and the necessity they were under to comply, and their intention to comply, with the order of said commission; and then alleging, in substance, that the tariffs to be filed in accordance with the order of the Interstate Commerce Commission would necessarily conflict with the tariffs heretofore established by the Railroad Commission of Texas, which under the laws of Texas they were compelled to observe and comply with under heavy penalties, at the suit of the Attorney General of Texas or of individual shippers, that the defendants were claiming that the order of the Interstate Commerce Commission of July 7, 1916, was void, and were threatening to institute suits for damages and penalties under the Texas laws should the carriers comply with the said order of the Interstate Commerce Commission; and the complainants prayed for a temporary restraining order, an injunction pendente lite, and a perpetual injunction.

To this bill is attached the following order:

The foregoing application for a temporary injunction and temporary restraining order, to remain in force until the hearing of the said application for a temporary injunction can be heard and determined, was presented to me this 2d day of September, A.D. 1916, and it was shown that the Honorable T. S. Maxey, United States District Judge for the Western District of Texas, is absent from said district, and for that reason is unable to hear and act upon said application; and having read and considered the foregoing bill, it is ordered that the same be filed and that the application for a hearing for a temporary injunction is granted and such hearing is set down for September 28, 1916, at my chambers in the city of Atlanta, Georgia, at 10 o'clock a.m. That immediate notice of said hearing, of not less than five days shall be given to the Governor and the Attorney General of Texas and to the defendants. And I hereby call to my assistance at said hearing of said application the Honorable Richard W. Walker, Circuit Judge of this circuit, and the Honorable William T. Newman, District Judge of the Northern District of Georgia.

It being further shown, and it is my opinion, that irreparable loss and damage will result to complainants unless a temporary restraining order is granted, it is ordered that such temporary restraining order is granted, and the clerk of the District Court for the Western District of Texas is ordered and directed to issue a temporary restraining order as prayed for restraining the Railroad Commission of Texas, the Attorney General and others with notice, from filing and prosecuting suits against the plaintiffs or either of them for failure or refusal to put in effect circular No. 5060 of the Railroad Commission of Texas, dated August 28, 1916, until such time as the application for temporary injunction can be heard and determined, and the said temporary restraining order issued by said clerk shall restrain and prevent the Railroad Commission of Texas, the Attorney General of Texas and the other defendants hereto, and others with notice, from filing and prosecuting suits against the plaintiffs or either of them for damages or penalties, for charging by them, on and after November 1, 1916, the rates prescribed and authorized by the Interstate Commerce Commission in its order of July 7, 1916, on shipments moving between points in the state of Texas, and such temporary restraining order as prayed for to remain in force until the hearing and determination of the application for an interlocutory or temporary injunction upon notice as aforesaid.

This September 2, A.D. 1916, at Atlanta, Georgia.

Don A. Pardee, U.S. Circuit Judge.

The hearing on the question of an injunction pending the suit was postponed by consent from time to time until April 4, 1917, in New Orleans, La., when the matter came on for hearing before Pardee, Circuit Judge, who issued the order to show cause, and Walker and Batts, Circuit Judges, called to assist under provisions of section 266 of the Judicial Code (Act March 3, 1911, c. 231, 36 Stat. 1162 (Comp. St. 1916, Sec. 1243)).

Upon this hearing a large amount of evidence was introduced on both sides, consisting of subsequent pleadings in the case affidavits, proceedings before the Interstate Commerce Commission, all as shown by the proces verbal hereto attached. The pleadings subsequent to the entry of the temporary restraining order herein are an amendment to the original bill, a supplemental bill by the complainant showing that tariffs and rates had been filed under the order of the Interstate Commerce Commission and were in force, a very lengthy and argumentative answer, by the Railroad Commission of Texas and the Attorney General of Texas, substantially denying all the allegations of the original bill and contending that the order of the Interstate Commerce Commission of July 7, 1916, was void, and, if not void, voidable in whole or in part; and further answering in the nature of a cross-action, contending and asserting that the order of July 7, 1916, was void, and that the United States and the Interstate Commerce Commission are necessary parties; and ended with the prayer that the plaintiffs be denied all relief herein and de...