Mobile Gas Co. v. Patterson

• Decision Date: 18 April 1923
• Citation: 288 F. 890
• Parties: MOBILE GAS CO. v. PATTERSON et al.
• Court: U.S. District Court — Middle District of Alabama

288 F. 890

MOBILE GAS CO. v. PATTERSON et al.

United States District Court, M.D. Alabama, Northern Division.

April 18, 1923

Harry T. Smith & Caffey, of Mobile, Ala., for plaintiff.

Harwell G. Davis, Atty. Gen., and Hugh White, Asst. Atty. Gen., of Alabama, for defendants.

CLAYTON District Judge.

The defendants now move and petition the court to dismiss this suit on the ground that it has become a moot case by reason of the fact that the Alabama Public Service Commission has canceled and set aside its order of July 24, 1922 establishing the rate complained of in the original bill of complaint as being confiscatory. It is to be observed that in the petition and motion there is no disclaimer of the right of the commission to re-establish the rates complained of and no method is suggested for the protection of the plaintiff against liability to its consumers upon its injunction bond, nor against the burden of costs necessarily incurred in obtaining the protection of the court.

Before dealing particularly with the question involved in the motion, it seems proper to say that the defendants, by their action in setting aside and canceling the rates complained of since the filing of the bill and the taking of the testimony in this case, have sought to avoid the issues involved in the plaintiff's complaint. The revocation of the order complained of after the case has been long proceeded with may have been a smart thing but 'the poor renown of being smart' cannot be of any avail. The rescission of the order cannot be treated by the court as a proper method for meeting the issue. To grant this motion would be to allow the defendants in any case where a bill has been brought, injunction bond given, liability for costs incurred, injunction issued, and the testimony taken in the cause under the direction of the court for many days-- in short, the case proceeded with until practically all of the testimony for plaintiff has been adduced -- to then obtain a dismissal of the bill simply by desisting from the act enjoined and at the same time retaining the power to repeat it. Such a result is not to be tolerated. U.S. v Workingmen's Amalgamated Council (C.C.) 54 F. 994, 26 L.R.A. 158; Roberts v. City of Louisville, 92 Ky. 95, 17 S.W. 216, 13 L.R.A. 844; King v. Commonwealth, 194 Ky. 143, 238 S.W. 373, 22 A.L.R. 535; State v. Minneapolis & St. L. Ry. Co., 115 Minn. 116, 131 N.W. 1075; Kimball v. City of Cedar Rapids (C.C.) 100 Fed 802.

Let it be understood that what has been said is not to be considered as any reflection on the good intentions of the attorneys for the defendant in this case. It is not to be doubted that their conduct has been well within what they conceived to be their duty. I have meant to say that the order made by the commission cannot constitute a reason for the dismissal of this case. When a defendant, who has been enjoined from the commission of wrong, becomes powerless to continue or repeat the wrong, and when the plaintiff can be subjected to no liability upon its injunction bond, or otherwise, for having asserted its rights and obtained such an injunction, the case becomes a moot case, and the court will not continue to devote the public time to a further consideration of an abstract question of law, which can no longer affect the rights of the parties; but, when a court of equity has once obtained jurisdiction for the prevention of a wrong, its jurisdiction to establish the rights of the plaintiff and to prevent the repetition of the wrong is not destroyed merely because the defendant may, under the influence of the injunction, desist from this perpetration, which it has the right to again undertake as soon as it is relieved from the restraining power of the injunction.

To hold that a bill in equity for an injunction should be dismissed as soon as the party enjoined ceases to persist in the wrong complained of, while he retains the power to repeat the wrong as soon as the injunction is disposed of, would effectively destroy the power of the court to grant any permanent relief in a matter of this kind. In this case, the defendants acting as members of the Alabama Public Service Commission, have undertaken to compel the plaintiff to serve the public at a rate which is alleged to have been confiscatory, and they have proceeded in their effort to maintain their position until the plaintiff has been put to a very heavy expense in establishing its rights, and they have then undertaken, after the reference to the special master has proceeded for many days, to rid themselves of the restraining influence of the injunction issued in this cause by setting aside the order complained of, insisting that the case has...