Ann Arbor R. v. Fellows

236 F. 387, 1915 U.S. Dist. LEXIS 1657

Opinions

PER CURIAM.

[1] This preliminary injunction is not sought to preserve an existing situation against a threatened change, but rather to modify a condition in which the railroad company has acquiesced for several years. No bond which can be required from plaintiff can be practically and completely efficacious to protect the traveling public, if an injunction should now issue and if plaintiff should finally fail. There is a presumption that the challenged act of the Michigan Feg-islature is constitutional. These considerations, peculiar to such a case as this, forbid the issue of the temporary writ, unless it is made reasonably clear that, upon the record as it stands, plaintiff is entitled to the relief sought.

If the final hearing were to be delayed one or two years, as counsel seem to think probable, we would have to pass definitely at this time upon the application as presented. . In that event, we should require further development of the facts in some directions — as, for example, regarding the depreciation charge to operating expenses recommended by the Interstate Commerce Commission, but not actually made by plaintiff, and the propriety of employing the factor of speed in reaching the composite use unit adopted by plaintiff, as well as the accuracy of tire speeds assumed; but, if a speedy final hearing can be had, these additional matters can be there developed to better advantage than by ex parte affidavits. We are satisfied that such final hearing can be had, and within a very brief time; and we therefore shall not now either grant or deny the injunction, hut shall hold the application open for the present, pending hearing of the principal case upon the merits, and without prejudice to further consideration or action, either on our own motion or on motion of either party, should circumstances later make it necessary.

The reason why it has been assumed that there must he a long delay seems to be that detailed expert adversary appraisals are thought to be necessary. We are not so impressed. The difference between the valuation claimed by plaintiff and the valuation fixed by the state for taxing purposes is not great enough to require such appraisals. From the evidence now available to both parties, it would seem that the court could fix an approximate valuation, and we cannot think that the issue whether or not there is confiscation could be controlled by the comparatively small difference which might develop between the result of detailed appraisal and the result obtainable by more general methods.

We all concur in the belief of the District Judge, who will be the trial judge, that, under the facts shown by the record and those of which the court takes judicial notice, neither party can be prejudiced by requiring prompt final hearing on the merits.

The clerk will notify both counsel of the filing of this memorandum.