Omaha daily bee. (Omaha [Neb.]) 187?-1922, 1907-10-08
ROADS BEG FOR INJUNCTION
Just Want Restraining Order Pending
Appeal of Case.
JUDGE t. c. MUNGER SAYS WATT
Allied Railways Again Seek to Pre-
vent state Commission from
EnforcIng Reduced Freight
Rate Laws.

Railroads OF NeDraske nave HaoS a."
other attempt to prevent the enforcement
Of the freight rate laws enacted by the
last legislature.
Acting for the allied roads, Judge w. ID.
McHuRh Monday applied to Judge 7. c.
Munger in the United States circuit court
for an order TO restore the original injunc-
ton to the enforcement OF these laws. This
Injunction had been dissolved by Judges
w. II. and T. c. Munger which left the
state commission free to enforce the laws.
The case is now on its way to the circuit
court OF appeals and the railroads want
the original restraining order made effect
i've until the higher court passes on the
case Judge Munger deferred action until
he could confer with his colleague.
It was agreed by all the attorneys repre-
senting the various roads that the entry of
the court should apply TO all cases. The
attorneys present were Edison Rich for the
Union Pacific, Ben T. White for the North
western. j. e. Kelby and w. d. McHugh
for the Burlington. The interests OF the
Nebraska Railway commission were looked
after by Attorney General Thompson. Hal
leck F. Rose and c.. II. Aldrich.
Judge McHugh in presenting the case said
the recent action of the court dlssolving
the temporary restraining order and dis
missing the demurrer was hardship upon
the railroads.
Both Sides OF the Case.
"It will be necessary for us to secure an
Injunction at this time to make our appeal
effective" said Mr.. McHugh. I'VE propose
to show that the Nebraska Railway com
mission had no power to act and IL the
commission is given any power by the bill
creating 1t, il is now proceeding in excess of
it's authority. If we are not granted this
restraining order we will have no right to
try this case. Unless this order is granted
we win have no opportunity TO appear in
the circuit court of appeals, on the ground
that the court of appeals will not hear new
cases and we must go before that court
with an open and not with a closed ques-
tion. We do not seek to enjoln the COM
mission from making any order but from
executing any administrative act"
Halleck f. Rose for state said: 1.-The
question is, does this Ease call for the
! exercise of this courts discretion IN setting
aside its own order denying an injunction.
| No noncompensatory rate has yet been pro-
mulgsted by the Nebraska Railway COM
mission and action in the premises can
only be taken after review on q complaint
| lodged with It, No such complaint has been
| lodged with the commission. There is no
cause for an injunction. In the present
status of the case the complaints will not
be put to any hazard of law. The allcga-
tions of the complalnants are without ef-
! feet and this suit has been prematurely
brought"
saBen white Talks. y 9'@
| Ben IT. White, for the Northwestern, said:
There is nothing in this restraining order
which we desire that will prevent the COM
4 mia
complaints. We simply ask that the order
may not be enforced until we can be heard
! in the court OF appeals. The railroads are
now doing business at serious loss
Attorney General Thompson said
Il think some OF the allegations in the
bill of the complainants may well be re-
fused and some of them ignored. THE
situation is not that 10 per cent reduc-
I tion Of rates will be made by the COM
mission unless 1t be restrained by this
! court, but will such a modification of rates
be made upon the proper hearing of COM
plants appropriately presented to the
I board. The simple sending out OF notices
that such a reduction of rates is con-
templated is no more of a ministerial act
than the signing of an act by the governor
Until a rate is definitely made the action
of the board cannot be restrained by this
| or any other court"
! StilI in Statu Ono.
Mr.. Aldrich denied that the commission
had promulgated any order making anv
10 per cent reduction and no one had any
right to assume that it would do so.
After the arguments were completed Mr..
McHugh sent up a penciled memoranda
order which would grant temporary in
junction for ten days until the roads could
complete their appeal. judge Munger
glanced over the order and remarked:
''No one will suffer II this matter shall
go over for few days. Before PASSING
upon the matter / would. as a matter OF
courtesy, prefer to consult with my coll
league. Judge W. II. Munger, who is now
out Of the city. Why can you not get to-
gether and come to some mutual agree
ment for a stay for several days until you
can get the appeal prepared?"
Mr.. McHugh made a proposition that an
arfnistice might be had for say five DAYS
but Attorney General Thompson did not
take kindly to the proposition and so ths