Omaha daily bee. (Omaha [Neb.]) 187?-1922, 1907-07-27
SIBLEY LAW IS TO STAND
Judge Munger Denies Injunction to
the Express Companies.
PLEA OF ABATEMENT ovERRULED
Statute of Last Legislature ReducinE q
Express Rates Twenty-Five Per
Cent Upheld In Federal
Court Case.

. The Sibley law. enacted by the last Ne
braska legislature, reducing the rates of
/ express companies in this state 25 per cent
will stand without being enjoined by the
federal court.
! Judge w. II. Munger handed down
memoranda opinion in the United States
circuit court in the case Of Levi c. Weir,
! president OF the Adams Express company
| against Hudson ]. Winnett, J. A. Williams,
! Henry T. Clarke, jr constituting the Ne
braska Railway commission and William
/ 4. Thompson, attorney general Of Ne
braska, in which he denies the application
for a temporary injunction asked by the
! complanants and overrules the plea in
| abatement asked by the attorney general
| The express companies are given leave to
renew their application for an injunction
at future time should changed conditions
require.
/ The express companies had asked a tenn
porary injunction TO restrain the enforce
ment Of the Sibley law.
The plea in abatement asked for by the
attorney general of the state was that
the suit in the state supreme court and
! which has been removed into United states
circuit court Is bar to the present action.
! The opinion of Judge Munger occupies
several typewritten pages and goes Into
/ the case extensively
RECORD of the Case.
July the attorney general brought an
| original proceeding in the supreme court
of the state against the Adams Express
company setting forth the passage Of the
act and all its provisions and alleged that
the Adams company was violating and
would continue to violate the act unless
/ h,y Of ba rt he
Adams Express company filed a petition
| for the removal Of the cause to the federal
court and July 10 instituted that proceeding,
! alleging that If the law was enforced II
would be in violation of the fourteenth
| amendment to the constitution of the
! United States in that It will deprive the
| plaintiff of its property, alleging
! that to do business under the provis-
/ ions of the law would be at a loss.
/ 1t then asked that the railway
commission and attorney general be re-
strained from seeking to enforce the law
/ in any manner and for temporary order
of injunction. pending the final hearing.
| The state filed affidavit showing that
1t had not taken any steps nor threatened
to take any such steps seeking to enforce
any of the penal provisions Of the law,
except by suit brought in the state su-
. pltlllt SOuil lOl TIE puIpOSt VI lSSlH6 lllS
! validity of the law, and that it did not
contemplate any enforcement of the law
until such question was determined, and
that the suit brought in the supreme court
was for the purpose of having a speedy
termination of the law.
Text of the Opinion.
In his opinion Judge Munger says:
This court has jurisdiction to enjoin
| members OF the State Railway commission
and the attorney general from taking any
meR9 eR Of which would result e in deprVng eprHiG
the plaintiff of any OF Its property without
the process of law and this question has
so often been determined by the supreme
court of the United States that it is no
/ longer debatabe question, That the
allegations of the plaintiffs bill show that
/ the enforcement of the statute in question
would deprive 1t of its property without
due process of law is clear and unques-
toned, but this alone does not entite the
plaintiff to a temporary order of Injunction
/ The single question presented in this case
is, whether or not under the facts
done or threatened by the defendants
which will seriously or irreparably iniure
/ 1t IN its rights. pending the final hearing
| temporary restraining order The only
! act shown to have been done or threatened
/ by the defendants is the causing OF the suit
! to be initiated in the supreme court of the
state. That suit its objects and purposes,
termined and the duty OF the express com
pany under all the facts and circumst ances
is to obey its provisions. If the act Dy
/ its enforcement would deprive the express
/ company of its property without due
J process of law that fact could probably
/ be shown in that case and if shown would
| defeat the complainant in this case
The question, then, is, will the prosecu-
tion ofsuch suit In which the Identical
question which is presented in this case
may be determined and adjudcated result
in an irreparable injury pending the hear
ing in this case? l think clearly not
+ 1t not aDDearinR to the gntiSfaptiOD Of
the court from the facts shown that the
complainant will sustain any irreparable
injury before the final determination of
this action, the temporary order of injunc-
tiOn is denied, with leave to renew the
application if at a future date should
changed conditions require.