# Brown Drug Co. v. United States

> District Court, N.D. Iowa · October 2, 1916 · 235 F. 603

URL: https://www.frixlaw.com/law-library/cases/8800538

## Case

- **Full name:** BROWN DRUG CO. v. UNITED STATES
- **Court:** District Court, N.D. Iowa
- **Decided:** October 2, 1916
- **Citations:** 235 F. 603; 1916 U.S. Dist. LEXIS 1394
- **Precedential status:** Published
- **Opinion:** Dissent by Reed
- **Judges:** Reed, Smith, Wade
- **Cited by:** 2 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/8800538

## Opinion text

REED, District Judge
(dissenting). I am unable to agree with the opinions that have just been announced.
At the outset I may say that there seem to be some statements in the Shreveport opinion and other cases bearing upon the questions here that are not easily reconciled; but that is not my reason for disagreeing with the majority.
We are here to determine whether or not an interlocutory injunction should issue, practically against the defendant express companies, and for this reason the case is not now for hearing upon the merits. The majority of the court is of opinion that the three judges cannot now determine the merits, and with this I agree; but they go farther and say, as I understand them, that because the Interstate Commerce Commission and the Attorney General of the United States have not been served with the notice of this hearing for the required time (which is true so far as we now know), we cannot therefore determine the question of the jurisdiction of this proceeding as against them; that, I think, depends upon the statute providing for this court as now organized. The act of Congress, abolishing the Commerce Court and transferring its jurisdiction, so far as not repealed, upon the District Courts of the United States, was passed October 22, 1913, c. 32, 38 Stat. 219 , 220 (Comp. St. 1913, § 998) which provides that:
“No interlocutory injunction suspending or restraining tire * * * 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 * * * by any District Court of the United States, or by any judge thereof, or by any Circuit Judge acting as District Judge, unless the application for the same shall be presented to a Circuit [Judge] or District Judge, and shall he heard and determined by three judges, of whom at least one shall be a Circuit Judge, and unless a majority of said three judges shall concur in granting such application."
That is the authority for calling together" this court of three judges, and the act further provides that:
“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 parties as may be defendants.”
It is said by the majority that this court as now constituted may not determine the question of the jurisdiction to hear this application, be *609 cause all it can do rightly is to determine whether or not the application shall be granted by this court. But what is it that this court as now constituted is to determine ? Bet the statute itself answer:
“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.”
The Interstate Commerce Commission and the Special Assistant to the Attorney General of the United States appear before us specially to object to the jurisdiction of this court to proceed with this hearing, because the notice required by law to be served upon them has not been given. In this I think they are right. What is to be done? Before this court can proceed against the Interstate Commerce Commission, and the government itself, it must give the required notice; that has not been done; but that only means that the court shall not proceed to determine the application until the required notice has been given to the Commission and the Attorney General, and amounts only to this: That the hearing of this application should be postponed until those parties have been served the required time before the hearing can proceed. But the majority say that we are not authorized to consider the question of the jurisdiction of the court. The statute requires that when an application for a temporary injunction is made the judge shall immediately call to his assistance to hear and determine the application two other judges. In my judgment it is the duly of this court as now constituted, when one or more of the parties to a proceeding of this nature comes before it and says that it is without jurisdiction of the proceedings, that the court should determine whether or not the court has jurisdiction of the proceedings. It cannot rightly avoid determining it by declining to rule upon the motion so presented, and determine the question upon some other ground.
In my opinion the majority of the court is in error in disposing of this hearing before the Interstate Commerce Commission and the government itself have been given the required notice, and in now declining to determine its jurisdiction as to them.
The majority also say that the question of determining this case upon its merits devolves upon the District Court. That may be true; and the express companies appear and present what is in effect a demurrer to the petition for want of equity. But the merits of the case are not now for hearing, and when the case comes on for final hearing that will then be determined by the District Court.
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. *610 I cannot agree that this court as now constituted may not determine the question of the 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 express 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.
I am constrained to dissent from the holding of the majority, denying the application for the preliminary injunction at this time.

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/8800538. Public record. Not legal advice.