Masses Pub. Co. v. Patten

• Decision Date: 06 August 1917
• Citation: 245 F. 102
• Parties: MASSES PUB. CO. v. PATTEN.
• Court: U.S. Court of Appeals — Second Circuit

245 F. 102

MASSES PUB. CO. v. PATTEN.

United States Court of Appeals, Second Circuit.

August 6, 1917

E. B Barnes, Asst. U.S. Atty., of New York City, for the motion.

G. E Roe, of New York City, opposed.

Before HOUGH, Circuit Judge.

HOUGH Circuit Judge.

This motion will be considered under the following heads: I. The practice under the statute. II. The present condition of this litigation as to its object and subject-matter. III. The fact findings of the District Court, and the conclusions there drawn therefrom. IV. The law as suggested to me by those facts. V. The propriety of this motion under the circumstances thus developed, in respect of (1) the rights of parties; (2) the public interests.

I. After considerable experience in appellate practice, and such recent inquiry as I have been able to make, no other instance (under section 129, Judicial Code) of application to a judge of the appellate court to stay an appealed order of this nature is known to me. Such stays, granted by the trial judge, are not uncommon; I have, myself, awarded not a few. They rest on the belief that doubtful questions of law, or difficult contests of fact (or both) are presented by the record, and that the relations of the parties, or exigencies of business are such that (perhaps by the giving of security) no injury will result from letting matters remain in statu quo (except for opinion filed) until decisive action can be had in the Court of Appeals.

There can be no difference in principle, between such an application to the trial judge, and a similar one addressed to a member of the appellate court. Indeed, I think a somewhat stricter rule should justly apply. The trial judge may and often does feel that his findings of fact reached with travail of conscience, may not be unassailable in the view of others equally capable; yet having done his best, he expresses no misgivings, though they exist and strongly move him to grant the stay.

But one who did not hear the case fully tried and argued, has, I think, small right to base action on facts. Except in the extremest cases, the facts must be assumed as reported from the lower court, whether through judge or jury. Any other attitude on the part of the judge ad quem, would convert the motion into a species of irregular, and often indecent, new trial. For these reasons, it is held that for present purposes, the propriety of granting the stay asked, rests on a case whose facts are literally as found by the District Court. And by facts, I mean, not only facts physical, phenomena seen or heard, but mental conditions or intents, so far as definitely stated.

II. This action relates only to an alleged property right; i.e., the claim of a New York corporation to have certain second-class matter forwarded to destination through the United States mail. Equity is resorted to solely to prevent irreparable pecuniary damage. Defendant justifies under an order of the Postmaster General, and the Department of Justice defends; but all this does not prevent the suit from being one between private parties, in the same sense as that phrase is true of actions against collectors of internal revenue for illegal exaction of taxes. The action is not against the sovereign, technically.

What the bill demanded, therefore, was that the mail aforesaid, viz., sundry copies of the 'Masses,' should be sent forward; and the District Court so ordered on July 26th. It now appears that on the day before (decision being known) plaintiff requested defendant to give back the withheld magazines, and not forward them; other arrangements for distribution having been made.

This means that plaintiff no longer desires the only avowed object of action; the business foundation of the suit has dropped out. But it remains true that the obligation to distribute this particular issue of the 'Masses' has a most important bearing on any postmaster's duty to forward future or similar publications. Therefore, as long as the prayer of the bill is unfulfilled, plaintiff has a legally real subject of litigation, although it further appears that plaintiff is not now exposed to any loss not coverable by damages already liquidated or ascertainable.

Defendant's situation, however, is quite different. The order appealed from, if complied with, fulfills the whole object of suit. If reversed, no restitution or restoration of status quo is possible; and in my judgment the appeal becomes a futility presenting to the appellate court nothing but an interesting moot point. A court may hold a case sub judice, until it becomes moot. The Supreme Court did so lately, in the well-known habeas corpus taken out by Hon. H. Snowden Marshall. 243 U.S. 521, 37 Sup.Ct. 448, 61 L.Ed. 881. But could it be pretended that the Supreme Court should or could have taken cognizance of that appeal, if brought on for argument after the expiration of the Congress which proceeded against Mr. Marshall? I think not, and...