Indianapolis & N. W. Traction Co. v. Consolidated Traction Co.

125 F. 247, 1903 U.S. App. LEXIS 5089

• Court: U.S. Circuit Court for the District of Indiana
• Decided: September 24, 1903
• Docket: No. 10,219
• Status: Published

Opinion

BAKER, Circuit Judge

(orally). As I indicated when the motion to quash the citation was overruled, in my judgment the effect of the division of the order into two separate paragraphs, separately numbered, was very clear. The first paragraph stated that on the complaint of the city against the Northwestern Company the Northwestern Company was restrained, and no other party was defendant to the complaint of the city except the Northwestern. Upon the dismissal of the city’s complaint, of course the injunctional order that was based upon that complaint fell with it. That is indisputable to my mind.

The second paragraph of the order is one continuous sentence, showing that, on the cross-complaint of the Northwestern Company against the city and the Consolidated Company, the city and the Consolidated are restrained and the Northwestern is restrained. I was unable then, and I am unable now, to view that in any other light than a just term that the court had power to impose, and did impose, upon a complainant whose complaint disclosed a controversy between it and the Consolidated Company as to rights in the streets of the city of Crawfordsville; that is, the Northwestern wanted to have the hands of the Consolidated tied pending an investigation of their respective rights, because there was a conflict in interest between the two companies. In other words, both cannot occupy the same place at the same time, and it appeared right on the face of the Northwestern’s bill that both of them were claiming rights that were in conflict. If the Consolidated was not claiming anything that conflicted with the claims of the Northwestern, it would be utterly idle and useless for the Northwestern to ask any restraining order against the Consolidated; but it was asked because the Consolidated was shown by the Northwestern’s bill to be making claims that were antagonistic to, and in conflict with, the claims the Northwestern was setting up in its bill. Under such circumstances, I think any court, as a condition of tying the hands of one antagonist, should compel the other to respect the status also.

From the hearing to-day, I am convinced beyond any shadow of doubt that Judge Elliott, Mr. Will Elliott, Mr. Harding, Mr. Hovey, Mr. Wiltsie, and Mr. Johnston all entertained the belief, in good faith, that such was not the scope and effect of the order, but that the order was simply an enlargement of the order which was made on the motion of the city of Crawfordsville. What Mr. Harding and Mr. William H. Johnston did in the way of driving spikes I look upon as being fully as trivial as what the oldest citizen did in driving the first spike on the first rail.

I will therefore discharge Mr. Harding and Mr. Johnston.

Mr. Townsend and Mr. Wise, I am satisfied beyond doubt from the evidence, had no intention to disrespect any order that had been entered by the Montgomery circuit court. What they did was done in good faith, upon the advice of counsel who in good faith believed that they were advising their clients correctly. I will therefore discharge Mr. Townsend and Mr. Wise.

Of course, what I have said with respect to the attorneys and these superintendents would also acquit the Northwestern corporation, so far as any intention by it to violate a pending order of the Montgomery circuit court is concerned, and I do acquit the Northwestern Company, as well as these individuals, of any intentional violation of the order. But an order was in force, compelling both corporations to respect the status. That has veen violated. I will therefore not acquit the Northwestern of the charge, but, finding no bad faith, I will assess nothing against it in the way of punishment. No acts that have been done by it or in its behalf, I think, are worthy of any punitive judgment; but in this proceeding the Consolidated Company is entitled to have the status restored, and also to be made good in respect to its expense in calling this matter to the attention of the court.

I will therefore find the Northwestern guilty of having violated a valid injunctional order, and, as that injunctional order was made for the purpose of compelling the parties to preserve the status, I direct the marshal of this court to take up, at the expense of the Northwestern Company, all of the tracks that were put down by the Northwestern Company in violation of this injunctional order; but I suspend the operation of the order upon the marshal until the further order of this court, and until the final hearing on the merits, unless, by reason of some conduct on the part of the Northwestern Company, the Consolidated Company shall make a motion for an early enforcement of the order. I further direct the Northwestern to pay all of the costs of this proceeding, and to pay into court for the use of the Consolidated Company, as a partial reimbursement of its expenses in bringing this matter to the court’s attention, the sum of $200.