Lewis Pub. Co. v. Wyman

• Decision Date: 03 April 1909
• Docket Number: 5,417.
• Citation: 168 F. 756
• Parties: LEWIS PUB. CO. v. WYMAN.
• Court: U.S. District Court — Eastern District of Missouri

168 F. 756

LEWIS PUB. CO. v. WYMAN.

No. 5,417.

United States Circuit Court, E.D. Missouri, Eastern Division.

April 3, 1909

Barclay & Fountelroy, for complainant.

Chester H. Krum, H. W. Blodgett, U.S. Atty., and T. P. Young, Asst U.S. Atty., for defendant.

TRIEBER District Judge (after stating the facts as above).

Equity rule 66, in force since the promulgation of the equity rules by the Supreme Court in 1842, dispenses with special replications and only requires a general replication. By reason thereof the interposition of a general replication is taken as denying every allegation in the answer or plea not responsive to the bill, and these allegations must be proved by the party making them. Humes v. Scruggs, 94 U.S 22, 24 L.Ed. 51.

The truth of the plea is fully established, not only by the production of the order of the Third Assistant Postmaster General to the defendant, the postmaster at St. Louis, but also by the testimony of Mr. Lewis, the president of complainant. This being the case, the question to be determined is whether the plea should be sustained, and thereby abate this action. The object of the bill, as shown by the allegations as well as the prayer for relief, is twofold: First, to enjoin the defendant, as postmaster of the city of St. Louis, from refusing transmission through the mails of the United States of the Journal at second-class pound rates theretofore accorded to it, and annulled by the Postmaster General without a hearing, in violation of the act of March 3, 1901, c. 851, 31 Stat. 1107 (U.S. Comp. St. 1901 p. 2655); and, second, to restrain him from limiting the number of publications to be thus transmitted to less than 600,000 copies, and--

'to that end the court ascertain and adjudge by its decree herein the amount of the legitimate subscription list of said Woman's Farm Journal as of March 1, 1907, and for prior months since September 1, 1905, to the end that there may be a close of the unseemly controversy raised by said defendant to limit and restrict unlawfully the full use and enjoyment by your orator of its rights to said second-class postal privilege under the postal laws of the United States, and that the said defendant, as postmaster, be perpetually enjoined from interfering with the full use and enjoyment of said second-class privilege by your orator according to the finding and decree of this court ascertaining the proper and just extent and limits thereof as herein explained.'

The principle is well established that courts will not proceed to adjudication where there is no subject-matter upon which the judgment of the court can operate. The reason for this rule is that the courts are not open for decisions on merely moot questions, but only for decisions of actual controversies between the parties. Marye v. Parsons, 114 U.S. 325, 330, 5 Sup.Ct. 932, 29 L.Ed. 205; In re Baez, 177 U.S. 378, 20 Sup.Ct. 673, 44 L.Ed. 813; Williams v. Hagood, 98 U.S. 72, 75, 25 L.Ed. 51; Hunnewell v. Cass County, 22 Wall. 464, 478, 22 L.Ed. 752; Meyer v. Pritchard, 131 U.S. ccix, Appx., 23 L.Ed. 961; Singer Mfg. Co. v. Wright, 141 U.S. 696, 700, 12 Sup.Ct. 103, 35 L.Ed. 906; May v. May, 167 U.S. 310, 323, 17 Sup.Ct. 824, 42 L.Ed. 179; Bonner v. Terre Haute I.R.R. Co., 151 F. 985, 81 C.C.A. 476.

The same rule also applies to cases in which the questions involved became moot questions after final decree in the trial court, and while pending on appeal in the appellate tribunal. San Mateo Co. v. Sou. Pacific R.R., 116 U.S. 138, 6 Sup.Ct. 317, 29 L.Ed. 589; Little v. Bowers, 134 U.S. 547, 10 Sup.Ct. 620, 33 L.Ed. 1016; California v. San Pablo T.R.R. Co., 149 U.S. 308, 13 Sup.Ct. 876, 37 L.Ed. 747; Mills v. Green, 159 U.S. 651, 16 Sup.Ct. 132, 40 L.Ed. 293; New Orleans Flour Inspectors v. Glover, 160 U.S. 170, 16 Sup.Ct. 321, 40 L.Ed. 382; Kimball v. Kimball, 174 U.S. 158, 19 Sup.Ct. 639, 45 L.Ed. 932; Jones v. Montague, 194 U.S. 147, 24 Sup.Ct. 611, 48 L.Ed. 913; American Book Co. v. Kansas, 193 U.S. 49, 24 Sup.Ct. 397, 48 L.Ed. 613; In re Lincoln, 202 U.S. 178, 26 Sup.Ct. 602, 50 L.Ed. 984; Fisher v. Baker, 203 U.S. 174, 27 Sup.Ct. 135, 51 L.Ed. 142; Fisher v. Cushman, 103 F. 860, 43 C.C.A. 381, 51 L.R.A. 292.

In Texas & Pacific R.R. Co. v. Interstate Transportation Co., 155 U.S. 585, 589, 15 Sup.Ct. 228, 39 L.Ed. 271, it was held, where the exigency existing at the time of the filing of the bill, which was made the principal foundation of the bill, has since passed away, an injunction will be refused.

And where a temporary injunction has been granted, but before final hearing the act enjoined has been legalized, or the grounds on which it was first granted no longer exist, the injunction will be dissolved. Pennsylvania v. Wheeling & Belmont Bridge Co., 18 How. 421, 15 L.Ed. 435; Baird v. Shore Line, 6 Blatchf. 461, Fed. Cas. No. 759; In re Jackson (D.C.) 9 Fed. 493; Fulton v. Greacen, 44 N.J.Eq. 443, 15 A. 827.

In Lockwood v. Wickes, 75 F. 118, 123, 21 C.C.A. 257, 262, it was held, Judge Thayer delivering the opinion of the court, that an appeal in a patent case from an order granting a temporary injunction must be dismissed if, pending the appeal, the patent has expired. And it has been uniformly held that an action against an official for a mandatory injunction abates by his resignation of office. United States v. Boutwell, 17 Wall. 604, 609, 21 L.Ed. 721; Warner Valley Stock Co. v. Smith, 165 U.S. 28, 17 Sup.Ct. 225, 41 L.Ed. 621; United States v. Butterworth, 169 U.S. 600, 18 Sup.Ct. 441, 42 L.Ed. 873.

An examination of these cases will show how strictly this rule is adhered to in all cases. Applying it to the first cause for which relief is prayed, it clearly must be denied. By the order of the Post Office Department made to the postmaster at St. Louis on January 7, 1908, and notice whereof was at the time telegraphed by the Post Office Department to the complainant, the Journal was admitted to the second-class mail privilege as of October 5, 1907, and, in the language of the order--

'to hereafter admit to the mails at the rate of postage established by the statutes for mail matter of the second class all copies thereof which conform to the requirement of the law governing mailable matter of the second class. See Act of March 3, 1879.'

It is conceded that ever since then, and at the present time, the defendant postmaster is admitting the Journal to the mails at second-class rates of postage. How, then, can the court enjoin him from refusing to do what it is admitted he is not now doing, refusing to admit the Journal at second-class rates? It would be a useless decree so far as the rights of complainant are affected, and to merely determine a question which, in so far as the parties to this action are concerned, is a moot one, and not an actual controversy. As stated in Spelling on Injunctions, vol. 2, Sec. 1052:

'Even when a temporary injunction has been granted, when the cause for which it has been granted has been removed, a court of equity will not continue or make it perpetual, and when the reasons for granting it have ceased to exist a temporary injunction may be vacated on motion.'

As to the second object for relief of the bill, it is claimed on behalf of complainant that the order of the Post Office Department now in force limits the number of copies to be admitted at that rate to 100,214, which is declared by the order to be--

'the legitimate list of subscribers prior to January 1, 1908, and an equal number of sample copies, making the total number of copies permitted to be mailed at the pound rate 200,428 monthly.' This, it is urged, is depriving complainant of a valuable right, not because it is claimed that the bona fide circulation of the Journal at the present time is greater than that determined by the Post Office Department and permitted to be carried at the pound rate, but that at the time this bill was filed, and for several months prior thereto, the bona fide subscriptions of the Journal were much greater than the number it was permitted to mail at the one cent per pound rate, and that neither the Postmaster General nor any of his subordinates in the department have a right to limit the number of copies a publisher of a publication accorded the second-class rate privilege can send through the mails when the privilege of the second-class rate is once accorded and cannot be annulled until after a hearing given to the publisher.

It is unnecessary to cite authorities to the proposition that a suitor in equity cannot, at a final hearing, claim any greater right than is asked in the bill. Nor is there room for any doubt on the proposition that a party is bound by the allegations in his bill. Hayward v. National Bank, 96 U.S. 611, 24 L.Ed. 855. It is true that under the prayer for general relief the court may frequently grant a relief not specifically prayed for, but in order to do so the decree must not give relief outside of the case made by the bill, but only such as is agreeable to the allegations therein stated. This is all that is decided in Tyler v. Savage, 143 U.S. 79, 12 Sup.Ct. 340, 36 L.Ed. 82, and Lockhart v. Leeds, 195 U.S. 427, 25 Sup.Ct. 76, 49 L.Ed. 263, relied on by learned counsel for the complainant. In the last-cited case the court expressly held that the averments in the bill were sufficient to justify the relief complainant insisted on. The court said:

'We agree that the relief granted under the prayer for general relief must be agreeable to the case made by the bill, and that, in substance, is what is held by the above cases. The case made by the bill consists of the material facts therein stated; and where all the facts are stated, it is no reason for denying relief under a general prayer because it may differ from the theory of the

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