The Montgomery advertiser. [volume] (Montgomery, Ala.) 1885-1982, 1909-06-24
Order Of Reference Is
Agreed Upon byLaDyers

there had been no cross-examination
of witnesses and because, as the ma
tority of that court considered, the
matters about which they testified were
largely expert opinions and specuia-
tions OF interested parties, and because
would not sufficiently overcome, in the
absence Of an actual test, the presump-
tion of the reasonableness OF the
rates. That court made no decision
whatever as to the merits of the liti-
cation. 1t did not even intimate what
the mai result should be, that depend
ing upon the final proof, which neith-
er that court nor this court could have
before It,. However had there been
dissolution of the injunction as wrong
fully issued, still the bond then pro-
vides that the complainant shall pay
or cause to BE- paid all loss or damage
caused by the granting of the injunc-
tion, including overcharges or excess
rates or charges TO every person or
firm, company or corporation, which
shall sustain any such losS or damage
as aforesaid, or pay any such over
charge, excess rate or charges afore.
said Until Il shall have been deter
mined that the rate charged exceeded
the legal or just rate, as contradistin-
ruished from the statutory rates, 1t can
not be said that the parties sustained
any loss or damage. It cannot be de-
termined whether the rates charged
exceeded such legal or just rates. as
contradistinguished from the statutory
rates, until the final determination Of
the cause; so that by the very terms
Of the bond no liability can arise until
Il has been finally determined in the
cause that the rates charged by the
carrier are unreasonable and unjust.
whether the rates will finally be deter
mined to be reasonable or not VIII ne-
cessarily depend upon the decree OF
the court after all the proof Is in. Ii
on the final proof 1t be adjudged that
the rates complained of were unrcason-
able and unjust from the beginning.
they must necessarily be unjust dur
ing any intermediate period. The pur-
pose of the bond the purpose for which
IL was required, was to so adjust the
rights of the parties In the meanwhile
that when the final decree was rem
dered, each OF the parties would GER
tainly be protected in the full measure
of their legal rights from the begin
ming. II the statutory rates are finally
declared unjust and unreasonable, the
carriers will have. nevertheless, been
compelled to refund shippers and pas
sengers any excess over statutory rates
which the carrier exacted, although 1t
was maintaining a just and reasonable
rate in the eye OF the law. The car
rier would lose, without any remedy,
the benefit of the final decree in his
favor during the past two years, and to
that extent, it's property would be con-
fiscated. While on the other hand. COM
polling the shipper and passenger to
wait until the final decree deprives
him of no right nor subjects him to
any loss in any contingency. The pur-
pose OF the preliminary injunction was
to preserve the rights OF the parties.
W. far as possible. without entailing
any risk of loss on either until the n
nal proof determines What was the
proper rate. and who was the person
finally 10 bear the loss. The whole
purpose Of the injunction and OF the
suit would be defeated II II now be
held that the bond must be enforced,
without waiting for the Anal outcome
Of the litigation.
'.Besides. It Is universally held. in
the absence Of specific statutes con.
trolling the subject. that the damages
recoverable upon an injunction hond
are never due until the final decree IN
the cause, and that q suit before that
time is prematurely brought and can
not be maintained. This Is conceded
by counsel on both sides, as also, that,
under the settled doctrine of the SUI
preme Court Of the United States In
Russell VS.. Farley, 1o6 U. s. 444, the
court has the power, and If necessary
should exercise IL to compass the ends
OF justice, by relaxing ana modifying
the condition of an injunction bond
or by suspending the right Of action
thereon. The situation, In short. is
this: It may turn out that the carriers
NAV never owe the shippers and pss-
sengers anything. The final decree
alone can determine that Yet not
outstanding this, and although the