The Waterbury Democrat., 1934-02-16

Federal Judge John c. Knox the necessity for speed in reaching a decision before the order trans ferring air mail service to the army becomes effective on Monday.
 ..It will be too late after the blow has fallen" he said, recalling the VIVA company had offered to car ry mail free for a month if there was any question of legality of contract.
 Judge Knox dismissed the action [ brought by the Transcontincntal and Western and held that the dis trict court had no Jurisdiction in such q case, and that the com pany's only possible relief might be through q United States court of claims.
 His decision came after pro- tracted argument in which the government was represented by Martin Conboy, United States at torney for the southern district or New York.
 The hearing was enlivened by frequent passages of repartee be- tween the opposing attorneys and the court. and by spirited defense of the air mail companies by COunSeI TOT the INV A.
 1t was brought out during the argument that the government. ac- cording to claims of the Transcon- tfnental Western Air Ways, had ac- tually made a profit of $8O,OO0 since January 1, 1934. on it's con- tract with that concern, and that a balance sheet of the company's operation over a period of years would show only $27,000 profit to the company itself.
 Making his ruling from the bench Judge Knox said:
 This case is of great importance since the order may by the post master-general takes effect on Monday, therefore to the end that this action may be reviewed by the parties interested l deem 1t best to decide upon the motion at this time so that appropriate steps may be taken by the interested parties
 "In making this decision it should be understood that the court has no opinion to express regarding the propriety of the ac- ton of the postmaster-general.
 "The carrying of the mail is es- sentialiy and fundamentally a function of the government and it lies with him to say either rightly or wrongly what shall be the instrumentality that shall carry the government's mail. Therefore any action which would tell the government to select a certain in strumentality to carry the mai must of necessity be against the United States. The United States therefore is an interested party.
 "Regarding Postmaster Farley I find that I cannot give the in functive relief asked against him The injunction is therefore de- nied."
 Conboy asked whether the de- eision meant that the suit was dis missed and Judge Knox responded that 1t was.
 After Judge Knox handed dowI his decision, counsel for the IWN said, "The only place we can Bc now is to the circuit court Of ap' peais but we will decide upon wha' steps we will take later on."
 The argument involved many sechnicalitles, but if was pointed out that the Judges ruling that he wns capable Of issuing m injunc' lion in tho absence of the defend. ant did not involve the question ol whether the court has turisdictior fir the the VIVA suit. That was yei fo be decided.
 The ruling was in reply t0 Con. boy'a contention that tho court dId 1.of have Jurisdiction because Far Eey was not present.
 'sAre there any precedenlsT JndEe Knox asked.
 fl know of none" conbOy nd miifed. lie did however, cite suit brought iO mnndamuH United States officials t0 fuiiill their dutlei ln casts Of non performance Thor' wera aif0, he nEid, cases m reeOr' sshaFe the government was nllnf Ser the return of property. Thii