The Houston daily post. [volume] (Houston, Tex.) 1886-1903, 1898-11-21

hnal determination Of the casa ~
ueuvieoiy IT will go TO the supreme court
"a ane United States eventually, whatever
nas oe the decision OF any OF tho lower
eourts' or OF the circuit courts of appeal.
anu Z Is most desirable TO get II tbers !.
,eApeu,tiously as 1t can be sent. The de-
Jay Waich would DO incurred ,by taxing IN.
case under Amusement, on briefs ami
uoiding 1t for weeks, perhaps. in o,,,ar m
STUDY the case and write an opinion which.
i ~ ny soruetiy sequence, would be the nrst
OF tnrees would SIMPLY work a DELAY ana
accomplish no good purpose. especially in
view OF the fact that 1t is mainly CUES.
,loh Oh the Interpretation of an act ACCORD. .
ing 10 its intent. which Is always q mar.
,er OF great uncertainty and sometimes
~. 10 tae most startling results. as N
tne case OF the Holy Trinity, Under tbese
circumstances, 1t seems TO me best tbat +
should dispose of this here and now. OF,
my nrst impression and If Won wish IN
print your briefs at once there is no ieasnr
WY you may not have an argument All thc
Desenper session Of the court OF appeals.
ana get al least as far along as that. I'M
fortunately, inasmuch "a YOU have not
come mere on an agreed statement OF facts
ana an application for a final hearing,
Dut are here only for preliminary In
junction, doubt very much whether YOU
can get any farther than the circuit court
oi appeals; but a decision Of that trl-
-. VIII We contrcHlng on the circuit
court mere and there Will be no difficulty
IN your getting an expeditions entry of a
decree and carrying the case up. II re-
MANS for me then to dispose 81 this case
according to my first Impression and
snail state my conclusions with extreme
brevity.
l start with the proposition that as be-
tween individual citizens. Whether they be
natural individuals or CORPORATIONS, com.
mon carrtef's or what not, originally there
Is the right TO agree as TO who should
bear the burden of the service rendered.
and OF all the incidents of The rendition
vi tnat service. THAT common carrier
Is subject to regulations by congress as to
limitations upon his power TO make such
agreement with the individual citizen, Is
not disputed. The proposition. however, is:
Hes congress prohibited in this particular
case the carrier from requiring the shipper
- pay the increased expense OF perform
ing the act of transportation whioh the
purchase, affiNing and cancellation OF this
stamp imposes upon the carrier There is
no express language in the act, that can
ind, laying the burden of that prohibit
ton upon the carrier. and inasmuch as re-
stricticns of the right to contract which
rs "a right OF great deal of Importance
and value to the citizen. whether he be an
individual or a corporation. should not be
spelled out OF any uncertain language, or
found to exist unless the case Is abun-
dainty clear. am induced in the absence
of express language TO reach the conclu-
son, upcn this mere curscry hearing of
the oral argument, and without the careful
analysis anti examination of the cases
which might perhaps lead mo to a different
conclusion, | am constrained, I say to
reach the conclusion that the act has not
prohibited the carrier from recurring the
party rendering the goods TO pay to the
carrier the increased cost which the act OF
hoe do H. ot.ttp t,lnr ~
cost Of the carrier, | shall
therefore deny the motion for a prelimin-
ary injunction.
Il Will speak to my associates, and n
your papers are printed and ready. with
the briefs, before the December session, j
have no doubt that they will take it UP at
Al early date and a decision NAV be
reached by the LIST OF January. Or. and II
seems to me the wiser course. If counsel
will now by agreement between them, go
10 work and put in the answer Of one is
not in) and prepare an agreed statement
If facts to enbody what is in these affi-
iavits. and lay the case before me, as ii |
was sitting regularly in equity, ] will make
\ final decree dismissing the bill. for lack
II equity, and that is appealable eventually
% the supreme court of the United States.
You can put it in that shape, in the course
" three or four days and get 1t printed
'or the December session, and " the SUI
,reme court will be as good to you as we
Ire here. there is no reason why you |
should not get a final decision before the
st of March And 1T seems to be of the |
Utmost Importance not only to the express
company, but to the individual shipper and |
everybody else, to have this matter au-
settled. II is extremely nee !
ssary that there should be an early de- |
ision in the court OF last resort. A de- |
ision here is worth nothing, 1t will not |
ettle the question.
Mr.. Kellosg-Whth your permission we
will confer at the earliest possible moment |
MA then submit to your honor the result.