Southern Exp. Co. v. Long

• Decision Date: 04 February 1913
• Docket Number: 2,457.
• Parties: SOUTHERN EXPRESS CO. v. LONG et al.
• Court: U.S. Court of Appeals — Fifth Circuit

202 F. 462

SOUTHERN EXPRESS CO. v. LONG et al.

No. 2,457.

United States Court of Appeals, Fifth Circuit.

February 4, 1913

[Copyrighted Material Omitted]

Robert C. Alston and Philip H. Alston, of Atlanta, Ga., W. R. Kay of Jacksonville, Fla., and A. A. Lawrence, of Savannah, Ga (Wm. W. Osborne, of Savannah, Ga., on the brief), for appellant.

Alexander Akerman, Charles Akerman, and Roland Ellis, all of Macon, Ga. (Richard C. Jordan, of Macon, Ga., R. P. Marks, of Jacksonville, Fla., and John A. McManus, of Macon, Ga., on the brief), for appellees.

Before PARDEE and SHELBY, Circuit Judges, and NEWMAN, District Judge.

SHELBY Circuit Judge.

This is a bill in equity by D. F. Long and 16 others, residents of and in business in the Southern district of Florida, and, for purposes of jurisdiction, all citizens of Florida, against the Southern Express Company, a corporation organized under the laws of Georgia, in business as a common carrier in Georgia and in the Southern district of Florida.

The District Court granted an injunction pendente lite, and this appeal was taken under section 7 of the act of March 3, 1891 (26 Stat. 828, c. 517 (U.S. Comp. St. 1901, p. 550)).

The appellee cites the decisions of this court to the effect that the granting of a preliminary injunction is in the sound discretion of the District Court, and that it will not be disturbed on appeal, unless it is violative of the rules of equity that have been established for the guidance of its discretion. Texas Traction Co. v. Barron G. Collier, Inc., 195 F. 65, 115 C.C.A. 82. While that rule is well established, it is also held that if, on such appeal, the appellate court is of the opinion that the plaintiff was not entitled to an injunction, because the bill was without equity, it would not only reverse the decree, but save both parties from the expense of further litigation by a final disposition of the case. Smith v. Vulcan Iron Works, 165 U.S. 518, 17 Sup.Ct. 407, 41 L.Ed. 810; Arkansas Southeastern R. Co. v. Union Sawmill Co., 154 F. 304, 83 C.C.A. 224.

The material averments of the bill are, in substance, as follows: That, prior to the 6th day of August, 1907, the plaintiffs were engaged in the state of Georgia in the business of buying and selling whiskies, brandies, wines, and other intoxicating liquors, and that, on that day, by an act of the General Assembly of the state of Georgia, the manufacture and sale of any alcoholic, spirituous, malt, or other intoxicating liquors was entirely prohibited within the state of Georgia; that thereupon the plaintiffs closed their business in the state of Georgia, and moved to the Southern district of Florida, and engaged there in the business of selling liquors, and particularly in receiving orders from, and shipping liquors to, their customers throughout the state of Georgia; that thereafter divers persons, the names of whom are unknown to plaintiffs, unlawfully and in defiance of the said Georgia statute, engaged in the liquor business at Savannah, Augusta, Columbus, and at other places in the state of Georgia, and entered into active competition with plaintiffs for the liquor business in Georgia; that, by the custom of the mail order business, the seller pays the express charges and adds the same to the cost price of the liquors sold; that the average minimum express charge fixed by the Southern Express Company on any quantity of liquors shipped from Jacksonville, Fla., to any place in the state of Georgia, is the sum of 50 cents, with an increasing price according to quantity, and the minimum price of express charges charged by that company on liquor shipments from Savannah, Augusta, or Columbus, to other places within the state of Georgia, is the sum of 25 cents, with an increasing price according to quantity; that the defendant company, conspiring with said illegal dealers at Savannah, Augusta, Columbus, and other places in Georgia, is daily engaged in receiving shipments of liquors from said dealers, consigned to various purchasers in the state of Georgia at said reduced rates, and thereby aids said illegal liquor dealers in an unfair and illegitimate competition with the plaintiffs, and that it is impossible for plaintiffs to pay the higher rates and compete with said dealers, and that the defendant company is aiding and abetting in the open and flagrant violation of the laws of the state of Georgia, and is, therefore, equally guilty with the principals; that this action of the defendant company causes a loss to each of the plaintiffs in excess of the sum of $3,000; that they have no remedy at law, and that the injury causes irreparable damage.

The prayer for specific relief is as follows:

'That the respondent, the Southern Express Company, by an appropriate decree of this court, be permanently enjoined from receiving and transporting, for any consideration whatever, intoxicating liquors of any class or kind from any person or persons engaged in the liquor business within the state of Georgia to persons resident within the state of Georgia.'

The cause came on to be heard on the application of the plaintiffs for an injunction restraining the defendant, as prayed for in the bill, and thereupon the court entered an order as follows:

'That the defendant, Southern Express Company, be, and it is hereby, restrained and enjoined, until the further order of this court, from receiving and transporting, for any consideration whatever, intoxicating liquors of any class or kind from any person or persons engaged in the liquor business within the state of Georgia to persons resident within the state of Georgia.'

The Southern Express Company appealed, and assigns, with specifications, that the court erred in making this order.

As to the allegations that the defendant company was carrying intrastate shipments of liquors at lower rates than those charged for interstate shipments from Jacksonville, Fla., to points in Georgia: It is urged by the appellant that this averment cannot be looked to as giving the bill equity, because the District Court had no jurisdiction to pass on the question of rates till the Interstate Commerce Commission had passed on them. Balt. & Ohio R.R. v. Pitcairn Coal Co., 215 U.S. 481, 30 Sup.Ct. 164, 54 L.Ed. 292. But we find it wholly unnecessary to consider this question, as the bill does not seek to have the rates changed, nor does the decree appealed from relate to an equalization of rates. The bill seeks to permanently enjoin the defendant company from receiving and transporting liquors for persons engaged in the liquor business in Georgia to persons resident within Georgia 'for any consideration whatever.' The decree is to that effect. No question of the regulation of rates is involved, and the averment as to rates cannot be looked to to uphold the decree.

The foundation of the bill is the alleged violations of the prohibition laws of Georgia. The manufacture or sale of intoxicating liquors is prohibited in that state (2 Georgia Code 1910, Sec. 426); and a violation of the statute is made a misdemeanor (Id. Sec. 432). If these statutes did not exist, the plaintiffs would have no cause of complaint and there would be no color of reason for the process of injunction. If the court, on final decree, were to grant a permanent injunction in the terms of the order appealed from, and the Georgia...