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took the objection, the injunction was denied in a District. court.17

§ 100b. Injunctions against Interstate Commerce Commission. The Act of October 22, 1913, provides: "No interlocutory injunction suspending or restraining the enforcement, operation, or execution of, or setting aside, in whole or in part, any order made or entered by the Interstate Commerce Commission shall be issued or granted by any district court of the United States, or by any judge thereof, or any circuit judge hey put it to f f f f

Syde әпо ѕǝ[ в шоум о 'səp әәлүр Äq рәшшләҙәр рив равә shall be a circuit judge, and unless a majority of said three judges shall concur in granting such application. When such application as aforesaid is presented to a judge, he shall immediately call to his assistance to hear and determine the application two other judges. Said application shall not be heard or determined before at least five days notice of the hearing has been given to the Interstate Commerce Commission, to the Attorney General of the United States, and to such other persons as may be defendants in the suit: Provided, That in cases where irreparable damage would otherwise ensue to the petitioner, a majority of said three judges concurring, may, on hearing, after not less than three days' notice to the Interstate Commerce Commission and the Attorney General, allow a temporary stay or suspension in whole or in part, of the operation of the order of the Interstate Commerce Commission for not more than sixty days from the date of the order of said three judges pending the application for the order of injunction, in which case the said order shall contain a specific finding, based upon evidence submitted to the judges making the order and identified by reference thereto, that such irreparable damage would result to the petitioner and specifying the nature of the damages. The said judges may, at the time of hearing such application, upon a like finding, continue the temporary stay or suspension in whole or in part upon such application for an interlocutory injunction shall be given precedence and shall be

17 Straus v. Abrast Realty Co. (E. D. N. Y.), 200 Fed. 327; infra,

in every way expedited and be assigned from a hearing at the earliest practicable day after the expiration of the notice hereinbefore provided for. An appeal may be taken direct to the Supreme Court of the United States from the order granting or denying after notice and hearing, an interlocutory injunction, in such case if such appeal be taken within thirty days after the order, in respect to which complaint is made, is granted or refused; and upon the final hearing of any suit brought to suspend or set aside, in whole or in part, any order of said commission the same requirement as to judges and the same procedure as to expedition and appeal shall apply." The repeal of the statute creating the Commerce Court, left this section of the act fully in force. Upon the decision of the motion the courts may balance the damages to be suffered by the complainants if the injunction is denied against those which will be incurred by the shippers for whose benefit the commission has acted, if the writ is issued.3 After such an injunction has

$ 100b. 1 Act of Oct. 22, 1913, ch. 32, 38 St. at L. 220. Comp. St. $998, see supra, § 34a, infra, § 151. 2 Louisville & N. R. Co. v. U. S., 227 Fed. 273, 275.

3 Brown Drug Co. v. U. S., 235 Fed. 603, 605, 606, per Smith, J.: "Such injunctions are ordinarily granted before proofs are complete, and in determining whether to grant them or not, the court must consider the damages which would be sustained by the defendants if a writ of injunction did issue before proof, and the damages to be incurred by the complainants if it did not issue. As Sioux City has, according to the findings of the Interstate Commerce Commission been suffering from this discrimination against it for about two years and seven months, we cannot find that within the thirty or sixty days between this and the final hearing the South Dakota towns will suffer more damages from the failure to grant this injunction than

Sioux City would suffer from granting in this case. The presumption is that the Interstate Commerce Commission's determination was correet and valid. We cannot assume that that controversy would be determined in favor of the complainants against the Interstate Commerce Commission, and thus grant this injunction when the damages to Sioux City from the granting of the injunction would be substantially equal to the damages to the South Dakota towns by refusing it." Per Wade, J., 606-608: "This being the situation I personally do not feel that it justifies action by a court of equity at this stage. I do not believe that a court should grant a temporary injunction unless there is irreparable injury to the complainants and unless it can be granted without imposing irrepar able injury upon some one else; and, it being impossible to grant a temporary injunction without imposing

been granted the court has power to issue a supplementary injunction forbidding the further prosecution of a suit within the class originally restrained. Such an interlocutory injunction is not within the statute and a direct appeal therefrom to the Supreme Court cannot be taken.5 An injunction should not be granted against suits to enforce an order by the Commission for reparation, unless all the parties to whom reparation is directed are before the court. Nor it seems when it is proved to be their intention to prosecute their claims in a consolidated action at or by a test case at common law."

It has been held that a motion to dismiss the bill cannot be heard by the three judges convened to hear the motion for an injunction but that the former motion must be heard by a single judge who may be one of these.

damages upon the merchants of Sioux City, as aforesaid, I do not believe that the court at this time should exercise its extraordinary power to restrain the defendants from proceeding under the order of the Interstate Commerce Commission."

4 Looney v. Eastern Texas R. R. Co., 247 U. S. 214, 219.

5 Ibid.

6 See Louisville & Nashville R. Co. v. Garrett, 231 U. S. 298, 230. Cf. S. C. as Louisville & N. R. Co. v. Kentucky R. R. Co., 214 Fed. 465, 471.

7 Louisville & N. R. Co. v. Kentucky R. R. Co., 214 Fed. 465, 471.

8 Brown Drug Co. v. U. S., 235 Fed. 603, 605; per Reed, J. (dissenting) 609, 610. "As to the question of a temporary injunction, I agree with the majority that the relative damages that may be sustained by one or the other of the parties may, and ordinarily should be considered. But if any damage is likely to result to Sioux City, or any other party, the injunction should not be denied upon that

ground, but should be granted, if the plaintiff is otherwise entitled thereto, upon the plaintiff giving proper security to indemnify the party against whom it shall issue against such damages as the granting of the injunction may cause. The plaintiffs are commercial clubs and jobbers in five of the largest cities and towns in South Dakota that will be seriously injured if the proposed increase of rates by the express companies is put into effect. I cannot agree that this court as now constituted may not determine the question of jurisdiction to grant a temporary injunction at the proper time. It is apparent upon the face of the petition that jobbers in these five towns will be discriminated against if the proposed rates shall go into effect, and will suffer damages-how much I do not know. But whatever they may be, the plaintiffs may be required to give proper security that will indemnify those who will be damaged by the granting of the writ. If I was to now determine the question of the merits of the demurrers of the ex

After a motion for an injunction under the statute has been denied, the District Court composed of the same judges may grant a temporary injunction, to expire at the end of thirty days unless, meanwhile the complainant takes an appeal and applies to the Supreme Court for a continuance of such an injunction pending the appeal, upon which appeal and application the injunction shall continue until the Supreme Court's decision.9

The decisions under the statute regulating applications for injunctions against the enforcement of State statutes and orders of State boards of administration and commissions may be examined in connection with this act.10

§ 100c. Injunctions against the United States Shipping Board. The Act of September 7, 1916, which creates the United States Shipping Board, provides: "The venue and procedure in the courts of the United States in suits brought to enforce, suspend, or set aside, in whole or in part, any order of the board shall, except as herein otherwise provided, be the same as in similar suits in regard to orders of the Interstate Commerce Commission, but such suits may also be maintained in any district court having jurisdiction of the parties."'1

§ 100d. Injunctions against Federal Trade Commission. "The jurisdiction of the Circuit Court of Appeals of the United States to enforce, set aside, or modify orders of the "Federal Trade" Commission, shall be exclusive.” 1

§ 101. Ejectment against officers of the United States. An action of ejectment has been sustained against government officers sued as individuals for land, such as a soldiers' cemetery 1 and a pier 2 held by them for governmental purposes in the name.

press companies to the petition, I might be inclined as now advised to overrule it; but that question, as before stated, is not now for determination.''

9 Louisville & N. R. Co. v. U. S., 227 Fed. 273. See Interstate Commerce Commission v. Louisville & Nashville R. R. Co., 101 Fed. 146, 148; Louisville & N. R. Co. v. Siler, 186 Fed. 176, 203, infra, § 300.

10 Lykin v. Chesapeake & O. Ry. Co., C. C. A., 209 Fed. 573.

§ 100c. 139 St. at L. 735, ch.

451, $31.

Comp. St. $8146(00).

§ 100d. 1 Act of Sept. 26, 1914, ch. 311, 5, 38 St. at L. 719, Comp. St. § 8836e, supra, $77h; infra, § 693.

§ 101. 1 U. S. v. Lee, 106 U. S. 196, 27 L. ed. 171; Stanley v. Schwalby, 147 U. S. 508, 37 L. ed. 259; Tindal v. Wesley, 167 U. S. 204, 42 L. ed. 137. But see Stanley v. Schwalby, 162 U. S. 255, 40 L. ed. 960.

2 Scranton v. Wheeler, C. C. A., Fed. 803, 807.

57

of the United States; but the United States are not bound by any adjudication in such a suit.3

§ 102. Replevin against officers of the United States. Papers on file in a Government Department cannot be obtained by replevin. Before the Tucker act, it was held that no suit would lie to compel the Treasurer and Comptroller of the United States to deliver to the complainant the surplus of bonds deposited as security for bank notes when the bank notes had been paid.2 Since the Tucker act, it has been held that a suit thereunder will lie against the United States to recover taxes which a statute had directed the Secretary of the Treasury to refund, but that no injunction should issue to prevent a collector from disposing of duties paid by the complainant, which the Board of General Appraisers and the court have held should be refunded.

§ 102a. Liability of a foreign government to suit. To what extent the Supreme Court has jurisdiction over a foreign state or sovereign has not yet been decided.1 The State courts have no jurisdiction over a foreign government upon any cause of action either by attachment or otherwise.2 A District Court of the United States has no jurisdiction in personam against a foreign, state or sovereign.3 The execution of a contract in the United States for war supplies or equipment does not make the foreign government subject to suit. The institution of a suit by the foreign government does not justify an interpleader of another defendant with a claim against it.5

The Federal courts have no jurisdiction over a foreign manof-war. A vessel owned or chartered by a foreign government

3 U. S. v. Lee, 106 U. S. 196, 223, 27 L. ed. 171, 182; Stanley v. Schwalby, 147 U. S. 508, 37 L. ed. 259; s. c., 162 U. S. 255, 272, 40 L. ed. 960, 966; Scranton v. Wheeler, 57 Fed. 803, 807; Tindal v. Wesley, 167 U. S. 204, 223, 42 L. ed. 137. 143.

§ 102. 1 Van Antwerp V. Hulburd, Fed. Cas. No. 16,827 18 Blatchf. 282). See Case v. Terrel. 11 Wall. 199, 20 L. ed. 134.

2 Brent v. Hagner, 5 Craneh (C. C.) 71, 6 Opinions of Attorney Gen eral, 223.

3 U. S. v. Shipley, C. C. A., 197 Fed. 265.

4 Joannidis v. Loeb, 191 Fed. 93 § 102a. 1 See supra, $ 3.

2 Hassard v. U. S. of Mexico, 29 Misc. (N. Y.) 311, aff'd 46 App. Div. 623, aff'd — N. Y. Manning v. Nicaraugua, 14 How. Pr. N. Y. 917. See The Sapphire, 11 Wall. 164, 20 L. Co-Op. 127, 130 and note. 3 Kingdom of Roumania v. Guar anty Trust Co., C. C. A., 250 Fed.

341.

4 Ibid.

5 Ibid.

6 The Schooner Exchange v. MeFadden, 7 Cranch, 116, L. ed. 287.

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