United States v. La Compagnie Francaise Des Cables Telegraphiques

77 F. 495, 1896 U.S. App. LEXIS 2975

• Court: U.S. Circuit Court for the District of Southern New York
• Decided: December 15, 1896
• Status: Published

Opinion

LAOOMBE, Circuit Judge.

A careful examination of the papers and briefs has not induced any change in the opinion expressed upon the' oral argument. Some of the questions raised as to the application of the act of 1890 seem, upon the authorities, not to be free from doubt, and they should be reserved for final hearing. The summary granting of a preliminary injunction is appropriate to a state of facts which presents some element of immediate necessity. There is none here. The laying .of the cable was completed before this motion was submitted on affidavits and briefs, and there is nothing to show that its operation until final hearing will produce irreparable injury to the United States or to any individual. It is thought that the main proposition advanced by complainant’s counsel is a sound one, and that, without the consent of the general government, no one, alien or native, has any right to establish a physical connection between the shores of this country and that of any foreign nation. Such consent may be implied as well as expressed, and whether it shall be granted or refused is a political question, which, in the absence of congressional action, would seem to fall within the province of the executive to decide. As was intimated upon the argument, it is further thought that the executive may effectually enforce its decision without the aid of the courts; but, even if defendants are correct in the contention that the executive has nothing to do with the matter, it is certainly indisputable that congress has absolute authority over the subject. That body is now in session, and if any urgent necessity, not disclosed in the papers before the court, should call for immediate action, it can settle the question of assent or nonassent with such definiteness as to leave no further room for argument. Motion for preliminary injunction is denied.