The San Francisco call., 1899-07-08

ber II, 1895, relating to the schedule OF
rates, and that the preliminary resolu-
UOns Of the 18th and 18th of Septem-
Der. 1895, were in effect harmless.
This proposition is remarkable, in
view of the record l find in this case.
The controversy in this court appears
to have covered this whole question
as TO the scope of the original resOlu-
tions and their relation to the schedule
of rates. The relation of these resolu-
tiOns Of September 18th and 18th TO the
schedule of rates adopted on Septem-
Der u appears to have been fully con-
sidered by the court. and upon the de-
csion of the motion for injunction
Judge Mckenna pointed out. If not by
express language by implication, that
II was the province OF the court TO
arrest the uplifted arm before the blow
should be struck.
This was the theory of the interposi-
ton of the court with respect to the
S per centum resolution relating to
grain rates, after the threatened
action of the respondent board, when
it adopted its resolution on the 18th
and 18th OF. September, 1895, and before
the schedule of rates had been put III
operation. Judge MCkenna indicated
in mis- opinion that the time for the
court to act in such a matter was
after the threat and, before the blow
fell; that if the complainant had wait
ed until after the schedule OF rates
had been put in operation. then some
other action would have been nee
eSSdTN.
With respect to the 25 per centum
resolution, 1t appeared that the COM
plaInant had been premature in Its
applicatio for an injunction, because
yet reached the point of action where
the court could properly arrest the
proceedings of the board.
Referring 10 this resolution, Judge
McKeLna quoted from the argument
OF Judge Hayne as follows: They
say Ohe cOmmissiOn) that they do not
consider it binding, and are not going
TO do anything without further con-
sideration, which, of course, may lead
to very different results The service,
If it is to be made, has to be made by
their order. by their authority; and
they have not yet even made up the
come here. high officers of State, and
swear they are not going TO take the
action without a further, full, free,
and fair tnvestga alton
Judge McKenna then said: Il am
disposed to accept this as true and
sincere. Indeed l do not know how
not TO do so. regarding them, as they
must be regarded, as truthful; nor do
rassment to them as officers in any
proper investigation Of the complain
ant, or any of its constituent roads,
the results OF which cannot be put
into force. even If it was desirable to,
except in direct and open way, and
the detriment of which, if any, can
be arrested before it fall.
The respondents contention that
there was no effective action in the
resolutions of September y and 13 is
clearly contrary to what the court
determined. 8 we'll as contrary to the
argument of counsel. The whole case,
from the beginning to the end, outlines
a procedure in a court OF equity on
the part Of the complainant TO arrest
the action Of the respondents before
their action should be beyond the
reach of the court. But if it be said
that these preliminary resolutions were
ineffective and harmless and that the
real assault was in this resolution of
September II. 1885. which latter resO-
luton has not been disturbed by the
board. then. in my Judgment, upon
that theory Of the proceedings the re-
spondent board is estopped to make
any such claim; they will not be per
mitted, after all this controversy, to
say that the real conflict and the real
action Of the board were involved in
this resolution Of September II, 1895,
and that this resolution still remains
as evidence that the respondents have
been successful in this suit.
1t is not for this court. upon mo-
tiOn of this character, to determine
who has been successful in a suit The
decree or judgment speaks for Itself
upon such a question. but when a court
is called upon to modify a. degree it
will not be misled by the mere form Of
the proceedings which have brought
equity is never to be deceived by mere
form, nor will it allow parties to come
into court one day COntending for sup
posed rights upon one theory and the
next day shift their position and say
there is no controversy upon that prop
osition al ALL but 1t is somewhere else
and with respect to questions not be-
fore considered.
In my opinion, therefore, the reSpon-
dent board is estopped to say now that
that there was nothing in the prelim-
mary resolutions and that they were
passed for no purpose or by inadver-
tence. The Attorney General SuS-
gested, by way of illustration, that the
preliminary resolutions. in their rela-
ton TO the resolution of September II,
We're of the same character as where
a legislature COMPOSED of two houses
passes a bill in each house and both
bills become laws by the action of the
houses at different dates. the two bills
being identical, and afterward upon
examination, the two laws are
found upon the statute book and to be
identical. and the Legislature then re-
peals one of them as useless and as a
mere incumbrance on the books
The court cannot look at these reso-
lutions in that light. / do not say
what the court might have determined
with respect TO these resolutions when
the cause was still in controversy and
under consideration. But now that it
is over, and the respondents have by
solemn resolution declared that their
purpose On ApTli "A OF IIlS year was TO
remove the cause Of complaint. they
cannot now claim that there was no
cause Of complaint. or If there vas
that they did not intend to remove it.
They cannot in one breath say that.
being advised and of the opinion that
the best and only method of stopping
the litigation was to remove the cause
thereof. and to that end they will re
peal certain resolutions. and in an
other say that they did not remove
anything by the latter resolution, or
that there was nothing in fact to re-
move.
In any event respondents cannot re-
cover costs upon any such theory of
the proceedings of the Board of Rail-
road Commissioners.
The complainant. in making its mo-
tion to dismiss. made the resolutions
of the respondent board of April 2i
1899, a part of the proceedings. In eff
feet 1t said: THE Board of Railroad
Commissioners has asked to have this
case dismissed because the resolutions
Of September II and 13. 1S95-the cause
of the litigation-have been repealed
The court has said that this motion
ought to come from the complainant
We accept the suggestion and we make
the motion: we propose to dismiss this
each party should pay its costs. We
have accepted that suggestion and
we propose to dismiss it and say moth
ing about the costs Thereupon the
cause was dismissed.
Under these circumstances the court
ord TO Justify a modification of the de-
cree. and an award Of costs to the
The motion of the re-
spondent board will, therefore. be de-
Med