The Birmingham age-herald., 1909-04-07

in dismissing the bill it was done with out prejudice, so that if 1t apepared by a test that the ordinance was in fact con- fiscatory, the suit could be renewed It seems from an attentive examination of the opinion in the case that the better course for the circuit court to have taken in the Knoxville Water company case would have been. to have permitted the practical trial of the ordinance before is- suing the preliminary injunction.
 See also Cumberland Telephone and Tel egraph company vs. railroad commission of Louisiana, 156 Fed. S34 refusing tenn porary restraining order, and the same case, on final hearing, granting an in- Junction: also the same case decided by the supreme court, February 9, 1909 re- versing the order granting the injunc- tion-U. S.
 In Central of Georgia Railway company vs. McLendon, ct al 157 Fed. 961, SIS, after an order was made at chambers by a circuit judge, denying a temporary re- straining order Q55 Fed 975), the case came on for hearing on a motion to grant temporary injunction. Judge Newman, who heard the motion, declined to grant the temporary injunction, hold ing that the rate claimed to be confisca- tory should be tried to ascertain its ef- feet upon the railway companys busi- ness The practice pursued by Judge h, be commended.
 Involved and Intricate Facts.
 The records before us consist mostly of affidavits giving opinions relating to Schedules, rates, values and various in- volved and intricate facts. There has been no opportunity to cross-examine the affiants-a time-honored means of ascer- taining the truth. Tthe statutes enjoined have not been permitted to be in force one day. There has been no practical test of the rates by observation of their effect We have not before us even the result of the trial of rates nearly like these by the sevral Alabama railroads which not contesting but obeying these laws. There has been no reference to a. master deliberate Investigation by him, and formal report and confirmatory de- cree. After such deliberate and careful contradictory trial, the courts, as We have seen, have sometimes held that the valid ity of the statute as to the eonfscatory question could only be settled by the prac- tical test of its actual trial.
 Volume of Records.
 The several records, as presented in this court, containing about 4O0O closely printed pages. We have not attempted to quote it or condense it, and have only dealt with it by indicating our conclusions after an attentive consideration. Ordinarily in a bill seeking an injunction and in the affidavits filed in support of it, we find statements of fact based on knowledge. These bills are filed to enjoin rates that have never gone itno effect, and are neces- sarly based mostly on opinions or sup position. The ultimate fact sought to be placed before the court is what per cent, if any, of net earnings would accrue to the compainants respectively on the value of their property used in intrastate busi- ness if the rates enjoined were enforced. The answer must depend on the actual value of the property devoted to the intra- state business, and the net amount that would be earned on the intrastate busi- ness if the rate enjoined was in oper- aton this, of course, depending on the amount of gross revenue from such busi- ness and the actual expense of conduct ing it. Take it for granted, for instance which is not at all clear-that by opinions of experts the value of the property is ascertaned, and that the cost of doing $l00 worth of such business is ascertained with reasonable certainty, so that the net gain is made plain; there Is left an ele- ment of uncertainty that is not answered by a reference to last years profit, to- wit: the amount of business that would be done under the lower rates, and this nothing but a practical test would show.
 May II not pc pOSSlDle--1iluccui uOeS HOC all experience suggest the probability that a reduction of rates will increase .he amount of business, and, therefore the earnings?" Chicago and G. T. Rail- way company vs Wellman, 143 U. s., S39, 343.
 Decisions of This Court.
 Our attention Is called to the num- erous decisions of this court refusing to reverse interlocutory decrees grant ing injunctions pendente lite, and an- nouncing that the making of such de- crees was within the sound judicial dis cretion of the lower court, and that it would not be interfered with unless violative of some rule of equity pro- cedure, and unless, under all the cir cumstances, the injunction was inn providently granted. Lehman vs. Gra- ham, 1855 fed. 39, and cases there cited. Such is the general rule that has been announced in ordinary suits between parties so situated that the right of the defendant could be fully protected by bond in case the injunction on the final hearing was dissolved. It has never been aplied by this court in case where the situation was such that the rights of the defendants or others having interests could not be so pro- tected; where the defendants were re- strained from the exercise of a right conferred by statute which was prima facie valid; and where the granting of an injunction would prevent prac- tical test that would probably be neces-