Argument for Appellants.

208 U.S.

Postmaster General, on the undertaking, claiming damages for entire period until final reversal of decree, held that:

The liability on the undertaking was limited to the difference in postage on matter mailed between the date of the restraining order and the entry of the decree of the trial court which superseded the restraining order. This was not a case in which the parties should be relieved from the obligation of the undertaking for damages during the period for which it was in force. Russell v. Farley, 105 U. S. 433, distinguished. 27 App. D. C. 188, modified and affirmed.

THE facts are stated in the opinion.

Mr. Holmes Conrad and Mr. William S. Hall for appellants: In the United States courts, where an injunction is granted, neither law nor equity gives any remedy in damages to the defendant, because it is regarded that the injunction flows from the judgment of the court, and not from the plaintiff. Where an injunction is granted and afterwards dissolved, there is no power to award damages unless bond or undertaking has been required upon the issue of the injunction. Russell v. Farley, 105 U. S. 433. Without a bond no damages can be recovered at all unless a case of malicious prosecution is made out. Meyers v. Block, 120 U. S. 206, 211.

In this case there can be no claim of malicious prosecution, as Mr. Justice Hagner, upon final hearing, decided that the claim of the plaintiff was well founded and ordered an injunction to issue. Crescent Live Stock Co. v. Butchers' Union, 120 U. S. 141, 158.

When a bond has been given, it is within the power of the trial court to decide whether any damages should be recovered. Russell v. Farley, 105 U. S. 433, 446.

In this case the preliminary injunction or restraining order was superseded by the decree made at the hearing of the cause, and with that decision the office and sole function of the temporary injunction ceased and was no longer operative.

The preliminary injunction or restraining order was by its terms to continue only "until further order." It was never dissolved. It expired by its own limitation. Sweeney v. Hanley, 126 Fed. Rep. 97, 99.

The injunction which was dissolved was the injunction of March 10, 1903, for which no bond was ever given or asked for. Had the defendant desired security, the matter should have been brought to the attention of the court. Cayuga Bridge Co. v. Magee, 2 Paige (N. Y.), 116.

The court cannot impose on the plaintiffs any undertaking which they have not given. It only makes the undertaking a condition of granting the injunction. If the plaintiffs refuse to give it, the court can refuse the injunction, but it cannot compel the plaintiffs to give an undertaking. Tucker v. New Brunswick Trading Co., 44 Ch. Div. 249.

An undertaking given by plaintiff on the issuing of a restraining order may be continued in effect after the hearing, with the consent of the plaintiff, but not otherwise. Novello v. James, 5 De G. M. & G. 876.

Mr. Henry H. Glassie, Special Assistant to the Attorney General, for appellee:

Damages should be assessed for the entire period during which the injunction remained in force, for so long as the injunction remained in operation the undertaking remained in force as a means of indemnity. Dodge v. Cohen, 14 App. D. C. 582; Hamilton v. State, use of Hardesty, 32 Maryland, 348, 353. Complainant's injunctions, being dissolved for want of right and equity to sustain them, are conclusively determined to have been wrongfully and inequitably sued out.

Every injunction which upon the same state of facts is dissolved, is inequitably granted, because if the complainant had been equitably entitled to the relief it would have been impossible that the bill should have been dismissed or his injunction denied. On this point the decree that complainant's bill must be dismissed is of course conclusive. Oelrichs v. Spain, 15 Wall. 211, 228, 229; Hopkins v. State, 53 Maryland, 502, 517; Sipe v. Holladay, 62 Indiana, 4, 9.

It is immaterial whether the injunction was granted by mistake of law or upon a misapprehension or misstatements

of the facts. The defendant is entitled to the protection of the undertaking whenever and for whatever reason the complainant actually fails on the merits. Griffith v. Blake, L. R. 27 Ch. Div. 474, 476, 477; Hunt v. Hunt, 54 L. J. Ch. (N. S.) 289, 290. See also Russell. v. Farley, 105 U. S. 433, 438, 439; Cox v. Taylor's Administrator, 10 B. Mon. 17, 21, 22; Winslow v. Mulcahy, 35 S. W. Rep. 762, 763; N. Y. & L. B. R. R. v. Dennis, 40 N. J. L. 340.

There is absolutely no equitable consideration in this case which will relieve the complainants from the obligation imposed by their own undertaking. No new facts have supervened which were not known to the complainants at the time. In each case complainants knew that the result of granting the injunction would be the very state of things that has happened that the Postmaster General would be prevented from getting the full rate and that they would gain and he would lose the difference. The damages which have resulted are not oniy the natural and inevitable result of their action, but the result actually in their contemplation and which they deliberately intended to produce.

MR. JUSTICE DAY delivered the opinion of the court.

This case is here by appeal from the Court of Appeals of the District of Columbia. The case originated in an action brought against the then Postmaster General (Mr. Payne) to compel him to enter and transmit certain publications of the complainants, Houghton, Mifflin & Company, as second class matter instead of third class as ruled by the Postmaster General; and the bill prayed an injunction restraining the Postmaster General from refusing to transmit them at second class matter rates. A restraining order was issued upon the filing of the bill on May 31, 1902, in the following terms:

"Upon the complainant filing undertaking, as required by equity rule 42, the defendant will be hereby restrained as prayed in the within-mentioned bill until further order, to

be made, if at all, after a hearing, which is fixed for the 16th day of June at ten o'clock A. M., 1902, of which take notice. "By the court:

A. B. HAGNER, Justice."

An undertaking was given in the following terms:

"George H. Mifflin, one of the complainants, and the American Surety Company of New York, surety, hereby undertake to make good to the defendants all damages by him suffered or sustained by reason of wrongfully and inequitably suing out the injunction in the above-entitled cause, and stipulate that the damages may be ascertained in such manner as the justice shall direct, and that, on dissolving the injunction, he may give judgment thereon against the principal and sureties for said damages in the decree itself dissolving the injunction.

"GEORGE H. MIFFLIN.

"THE AMERICAN SURETY COMPANY, NEW YORK. "By JNO. S. LOUD.

"Approved 4 June, 1902. A. B. HAGNER."

No further hearing was had upon the application for a temporary injunction, and on March 10, 1903, the case was heard on the merits and the following injunction awarded:

"This cause, coming on to be heard upon the bill and the exhibits filed therewith, and on the papers filed in the cause and the proceedings had therein, was argued by counsel. On consideration thereof it is this 10th day of March, 1903, adjudged, ordered, and decreed

"(1.) That the complainants are entitled to have their publications entitled 'Riverside Literature Series' received and transmitted through the mails as mailable matter of the second class, as defined by the act of Congress approved March 3, 1879.'

"(2.) That the Postmaster General be, and he is hereby, perpetually restrained from enforcing and continuing the can

of particular States. But it is claimed that a State may empower one of its political agencies, a mere municipal corporation representing a portion of its civil power, to burden interstate commerce by exacting from those transporting to its wharves the products of other States wharfage fces, which it does not exact from those bringing to the same wharves the products of Maryland. The city can no more do this than it or the State could discriminate against the citizens and products of other States in the use of the public streets or other public highways."

In Webber v. Virginia, 103 U. S. 344, a license statute of the State of Virginia was held to be a regulation of commerce and invalid because the tax was made to depend upon the foreign character of the articles dealt in; that is, upon their having been manufactured without the State. The court said (p. 350):

"If by reason of their foreign character the State can impose a tax upon them or upon the person through whom the sales are effected, the amount of the tax will be a matter resting in her discretion. She may place the tax at so high a figure as to exclude the introduction of the foreign article and prevent competition with the home product. It was against legislation of this discriminating kind that the framers of the Constitution intended to guard when they vested in Congress the power to regulate commerce among the several States."

In Walling v. Michigan, 116 U. S. 446, an act of the State of Michigan, which imposed a tax or duty on persons who, not having their principal place of business within the State, engaged in the business of selling, or of soliciting the sale of certain described liquors, to be shipped into the State, was held to be repugnant to the commerce clause, as being "a discriminating tax levied against persons for selling goods brought into the State from other States or countries." The court said (p. 455):

"A discriminating tax imposed by a State operating to the