Henry Houghton v. George Cortelyou

• Decision Date: 20 January 1908
• Docket Number: No. 49,49
• Citation: 28 S.Ct. 234,208 U.S. 149,52 L.Ed. 432
• Parties: HENRY O. HOUGHTON, Trustee; George H. Mifflin, J. Murray Kay, et al., Appts., v. GEORGE B. CORTELYOU, Postmaster General
• Court: U.S. Supreme Court

208 U.S. 149

28 S.Ct. 234

52 L.Ed. 432

HENRY O. HOUGHTON, Trustee; George H. Mifflin, J. Murray Kay, et al., Appts.,

v GEORGE B. CORTELYOU, Postmaster General.

No. 49.

Argued November 12, 1907.

Decided January 20, 1908.

Messrs. William S. Hall and Holmes Conrad for appellants.

[Argument of Counsel from page 150 intentionally omitted] Mr. Henry H. Glassie for appellee.

[Argument of Counsel from page 151 intentionally omitted] Mr. Justice Day delivered the opinion of the court:

This case is here by appeal from the court of appeals of the District of Columbia. The case originated in an action brought against the then Postmaster General (Mr. Payne) to compel him to enter and transmit certain publications of the complainants, Houghton, Mifflin, & Company, as second-class matter instead of third class, as ruled by the Postmaster General; and the bill prayed an injunction restraining the Postmaster General from refusing to transmit them at second-class matter rates. A restraining order was issued upon the filing of the bill on May 31, 1902, in the following terms:

Upon the complainant filing undertaking, as required by equity rule 42, the defendant will be hereby restrained as prayed in the within-mentioned bill until further order, to be made, if at all, after a hearing, which is fixed for the 16th day of June, at 10 o'clock A. M., 1902, of which take notice.

By the court.

A. B. Hagner, Justice.

An undertaking was given in the following terms:

George H. Mifflin, one of the complainants, and the American Surety Company of New York, surety, hereby undertake to make good to the defendant all damages by him suffered or sustained by reason of wrongfully and inequitable suing out the injunction in the above-entitled cause, and stipulate that the damages may be ascertained in such manner as the justice shall direct, and that, on dissolving the injunction, he may give judgment thereon against the principal and sureties for said damages in the decree itself dissolving the injunction.

George H. Mifflin.

The American Surety

Company, New York.

By Jno. S. Loud.

Approved 4 June, 1902. A. B. Hagner.

No further hearing was had upon the application for a temporary injunction, and on March 10, 1903, the case was heard on the merits and the following injunction awarded:

'This cause, coming on to be heard upon the bill and the exhibits filed therewith, and on the papers filed in the cause and the proceedings had therein, was argued by counsel. On consideration thereof it is this 10th day of March, 1903, adjudged, ordered, and decreed——

'(1.) That the complainants are entitled to have their publications entitled 'Riverside Literature Series' received and transmitted through the mails as mailable matter of the second class, as defined by the act of Congress approved March 3, 1879. [20 Stat. at L. 355, chap. 180.¹]

'(2) That the Postmaster General be, and he is hereby, perpetually restrained from enforcing and continuing the can- celation of the certificate of entry set forth in paragraph six of said bill, and from refusing to receive said publication and transmit the same through the mails as mailable matter of the second class, in accordance with the provisions of said act of Congress approved March 3, 1879, and from denying to the complainants the receipt, entry, and transmission through the mails of their publication entitled 'Riverside Literature Series' as mailable matter of the second class, as defined by the act of Congress approved March 3, 1879.'

An appeal was taken to the court of appeals of the District of Columbia, and on June 5, 1903, the decree of the supreme court was reversed and the case remanded to the court below, with directions to dismiss the bill. 22 App. D. C. 234. From that decree an appeal was taken to this court, and the decree of the District court of appeals was affirmed on April 11, 1904. 194 U. S. 88, 48 L. ed. 888, 24 Sup. Ct. Rep. 590.

Upon receipt of a mandate of this court the District court of appeals issued its mandate, ordering the court below to dismiss the bill. The Postmaster General moved the court to enter a decree upon the mandate of the District court of appeals, to dismiss the bill, dissolving the injunction, and ascertain the damages by reason of the violation thereof. The District supreme court entered a decree setting aside its original decree, and dismissed the bill, and dissolved the injunction theretofore granted, but being of opinion that, as matter of law, the complainants and sureties on the injunction bond given in the case were not liable to damages thereon, the motion for ascertainment of damages upon such undertaking was overruled and denied, and the injunction undertaking canceled and annulled.

From the part of the decree refusing to assess damages the Postmaster General, Mr. Cortelyou having succeeded Mr. Payne, appealed to the district court of appeals, where the order of the court below was reversed, and a decree directed against the appellant and the surety on the injunction bond for the sum of $6,880.86, the amount with interest stipulated as the difference between postage due at third-class rate and that paid as second-class rate 'between the date of the filing of the injunction herein and June 16, 1904, when such mailing at the second-class rate was discontinued.' 27 App. D. C. 188. Thereupon appeal was taken to this court.

It is the contention of the appellants that the original undertaking, being entered only for a temporary purpose, had spent its force, and that there is no liability thereon, notwithstanding the fact that the original decree granting a permanent injunction was reversed by the District court of appeals, which judgment was affirmed in this court.

The contention of the appellee is that the damages sustained by the Postmaster General during the time pending this action was secured by the bond, and recovery may be had for the damages sustained, or, if not for the full amount, at least for the time from the granting of the restraining order until the final decree in the court of original jurisdiction.

The determination of the question involved depends upon the nature and character of the undertaking given. The restraining order issued in the case was authorized by § 718 of the Revised Statutes of the United States (U. S. Comp. Stat. 1901, p. 580), which is as follows:

'Whenever notice is given of a motion for an injunction out of a circuit or district court, the court or judge thereof may, if there appears to be danger of irreparable injury from delay, grant an order restraining the act sought to be enjoined until the decision upon the motion; and such order may be granted with or without security, in the discretion of the court or judge.' U. S. Rev. Stat. § 718.

Under this section, originally passed June 1, 1872 (§ 7, chapter 255, 17 Stat. at L. 196), a restraining order with features distinguishing it from an interlocutory injunction was introduced into the statutory law. In the prior act of Congress of March 2, 1793 (1 Stat. at L. 334, 335, chap. 22), it was provided in § 5: 'Nor shall a writ of injunction be granted . . . in any case without reasonable previous notice to the adverse party, or his attorney, of the time and place of moving for the same.'

By force of § 718 a judge may grant a restraining order in case it appears to him there is danger of irreparable injury, to be in force 'until the decision upon the motion' for temporary injunction. Thus, by its very terms, the section (718) does not deal with temporary injunctions, concerning which power is given in other sections of the statutes, but is intended to give power to preserve the status quo when there is danger of irreparable injury from delay in giving the notice required by equity rule 55, governing the issue of injunctions. While the statutory restraining order is a species of temporary injunction, it is only authorized, as § 718 imports by its terms, until the pending motion for a temporary injunction can be heard and decided. Yuengling v. Johnson, 1 Hughes, 607, Fed. Cas. No. 18,195; Barstow v. Becket, 110 Fed. 826, 827; North American Land & Timber Co. v. Watkins, 48 C. C. A. 254, 109 Fed. 101, 106; Worth Mfg. Co. v. Bingham, 54 C. C. A. 119, 116 Fed. 785, 789.

And the same view has been recognized in other jurisdictions having similar statutory provisions. 'A temporary restraining order is distinguished from an interlocutory injunction, in that it is ordinarily granted merely pending the hearing of a motion for a temporary injunction, and its life ceases with the disposition of that motion and without further order of the court; while, as we have seen, an interlocutory injunction is usually granted until the coming in of the answer...