(dissenting).
When the controversy that resulted in this suit in equity arose, the plaintiff was in lawful possession of the four towboats and nineteen barges. The lease and contract of sale of May 28, 1919, and the delivery of possession of the vessels to him on July 15, 1922, had vested in him the lawful possession of the property and the absolute optional right by a compliance with the terms of the contract to the continuous possession and to the legal title to this property at any time prior to July 15, 1927, the time of the expiration of the term of the lease and contract of sale. He was in the position of an optional vendee of real or personal property to whom the vendor, hound by his contract to convey on payment by the vendee in the future of the unpaid part of the purchase price, has delivered the possession of the property. In equity he was the optional owner in lawful possession of the property, and the vendor held the legal title to it as trustee for him, the cestui que trust.
The contract of lease and sale recited that the barges and towboats were to be constructed by the United States for, and adapted to, the transportation of iron ore and coal, hut when they were delivered to the lessee and optional vendee, about July 15, 1922, they were so defectivo that he was compelled to expend and did expend $40,000 of his own money to make them operative. That contract provided that he should operate these vessels as a common carrier on the Mississippi river and its tributaries “at rates not in excess of prevailing rail tariffs, and not less than the prevailing rail tariffs without the consent of the Secretary of War,” and that the lessor reserved the right to inspect the plant, fleet, and work to see that the terms and conditions of the lease were fulfilled and that “noncomp] ianee, in his judgment, with any of the terms or conditions will justify his terminating the lease and returning the plant and said barges and towboats to the lessor.”
On March 3, 1923, the defendant Hon. John W. Weeks, Secretary of War, without notice to or hearing of the plaintiff on the question of his compliance with the terms of the contract, in writing notified him that, in his judgment, he had not complied with them, in that he had failed “to operate the said towboats and barges as a common carrier and in other particulars,” but none of these other particulars was described, and he declared the contract terminated and directed the plaintiff to deliver possession of the vessels to the defendant Col. T. Q. Ash-burn, who was authorized by him to receive and receipt for them. There was a “Memorandum for Colonel Ashburn” attached to this written notice, whereby the latter was directed to deliver to the plaintiff in person the notice and to demand the possession of the property, the last paragraph of which read in this way: “In the event of his failure or refusal to make delivery of the property demanded, you will apply to the United States District Attorney at St. Louis, requesting the institution of legal proceedings for the recovery of said property.”
If this direction had been put into effect, and such legal proceedings had been instituted, it seems probable that the rights of the plaintiff, the defendants, and the United States would have been finally determined before this date and continuing litigation would have been avoided.
On March 8, 1923, the plaintiff in writing answered the demand for possession of the property. The pertinent portion of that answer was in these words:
“ * '* * Most respectfully, I decline to comply with your demand. To do so would deprive me, without any notice whatever, or opportunity to bo hoard, of rights and property lawfully acquired at a very large expenditure by me of time and money. I have, in face of most unjust interference and restrictions, fully complied with all of the terms of my contract, and, further, I have complied with every demand or requirement made of me by either yon or the Chief of Engineers of the United States, the lessor named in my contract.
“The exercise of your judgment is, I am convinced, based upon inadequate and inaccurate information and has in fact no substantial basis on which to rest. This I believe will be fully demonstrated to you if I am granted a fair and impartial hearing to which, as a citizen, I am entitled, and which, in fairness and justice, I now request.
“Very respectfully yours,
“Edward E. Goltra.”
*852The record discloses no reply to this answer and courteous request for a hearing, but without either, on Sunday, March 25, 1923, the defendants, without the consent and against the protest of the plaintiff’s agents in possession of the vessels, with a coercing force of men, took possession of the boats and barges at St. Louis, Mo., and ran them down the river, and held them upon the Illinois side thereof, in the belief that the District Court below had no jurisdiction over that portion of the Mississippi river between Missouri and Illinois adjacent to the Illinois bank. As soon as this sudden Sunday seizure came to the knowledge of counsel for the plaintiff, they prepared and presented to the court below his bill in equity against the defendants, wherein he prayed for a restraining order and an interlocutory injunction against them for the purpose of holding the property in the possession of the plaintiff in the state in which it was before the sudden Sunday seizure, until the claims of the respective parties thereto eould be fairly heard, considered and decided.
The only specific charge in the demand for possession of these vessels was that the plaintiff had not operated the vessels as a common carrier. In Ms bill in equity the plaintiff alleged that, by the provisions of the lease and contract, the defendant, the Secretary of War, had the control of the rates which the plaintiff might charge for transportation of commodities by the use of these vessels, that he obtained contracts for the transportation of immense quantities of commodities at reasonable rates, but that the defendant, the Secretary of War, by the use of the power over his rates, vested in him by the lease and contract, prohibited Mm from operating or refused him the necessary permission to carry commodities at operative rates, either as a common carrier or as a private carrier, and thereby arbitrarily deprived him of the opportunity to carry out his contracts with shippers, and made it absolutely impossible for him to operate the vessels, either as a common carrier or otherwise.
The plaintiff prayed for an immediate restraining order, an interlocutory injunction against the sudden seizure, removal, and possession of this property by the defendants, and for an ultimate determination by the court below of his right .to the possession and his equitable interest.in tMs property. .On tMs bill, and the facts wMch have been recited, his counsel immediately invoked the exercise by the court below of its judicial discretion to preserve the status and possession of this property by its restraining order and its interlocutory injunction as they existed prior to the defendants’ seizure, until there could be a hearing, consideration, and decision by the court' of some of the rights and equities of these parties. The plaintiff was met, not by answers by the defendants to the merits of the bill, but by a claim in their returns to the order to show cause why the injunction should not issue that the court had no jurisdiction of the suit because the United States was a necessary party to it, and by a claim that the Mississippi-Warrior Service, a barge line wMch the United States was operating on the Mississippi river, and to prevent the plaintiff’s competition with wMch he alleges in his bill he was informed that the Secretary of War had prevented Ms use of operative rates, had offered to use his barges and towboats and to pay him fair compensation for such use. But his acceptance of such an offer would not have constituted a performance of Ms contract to operate these boats and barges as a common carrier or otherwise. He was also met by the suggestion of the Attorney General of the United States that the nation was a necessary party to this suit, and, by his motion, appearing only for the purpose thereof, to dismiss this suit on that ground. The District Judge below patiently heard the claims and arguments of the parties to tMs suit, deliberately and exhaustively considered them, denied- the motion to dismiss the suit, and granted the restraining order and the interlocutory injunction and wrote careful opinions, in which he clearly set forth his reasons for his action.
This ease is in this court on an appeal from his order granting the interlocutory injunction. The decisive question presented to Mm upon the application for that injunction was whether or not in the exercise of his judicial discretion he ought or ought not by his injunction to hold these vessels temporarily until there eould be a fair hearing and just decision of some of the important issues in this case in the position and situation in wMch they, were when defendants seized them. By the established principles and rules of equity jurisprudence, the authority was granted to, and the duty, wMch he eould not lawfully renounce or evade, was imposed upon him, and was not granted or imposed upon this court or its members, to decide this question according to Ms judicial discretion. Denver & Rio Grande R. Co. v. United States, 124 S. 156, *853160, 59 C. C. A. 579. And the question for this court in this ease is not whether or not it or its members would have exercised his judicial discretion in tho way the judge below exercised it, but it is only whether or not he improvidently, illegally, or abusively exorcised that discretion. Stearns-Roger Mfg. Co. v. Brown, 114 F. 939, 941, 942, 52 C. C. A. 559, and eases there cited; Denver & R. G. R. Co. v. United States, 124 F. 156, 160, 59 C. C. A. 579.
An indisputable rule for the guidance of the court below, in tho exercise of Ms sound judicial discretion in this case, was and is that an interlocutory injunction maintaining the existing condition of tho property may properly issue whenever tho questions of law or fact to be ultimately determined in the suit are grave and difficult, and injury to the moving party will be immediate, certain, and great if it is denied, while the loss or inconvenience to the opposing party will be comparatively small, and • may well be indemnified by a proper bond if the injunction is granted. Georgia v. Brailsford, 2 Dall. 402, 405, 407, 1 L. Ed. 433; Magruder v. Belle Fourche Valley Water Users Ass’n, 219 F. 72, 82, 135 C. C. A. 524; Denver & Rio Grande R. Co. v. United States, 124 F. 158, 161, 59 C. C. A. 579; City of Newton v. Levis, 79 F. 715, 718, 25 C. C. A. 161; Allison v. Corson, 88 F. 581, 584, 32 C. C. A. 12; Stearns-Roger Mfg. Co. v. Brown, 114 F. 939, 944, 52 C. C. A. 559; Harriman v. Northern Securities Co. (C. C.) 132 F. 464, 476, 477, 480, 485; Carpenter v. Knollwood Cemetery (C. C.) 188 F. 856, 857; Wilmington City Ry. Co. v. Taylor (D. C.) 198 F. 159, 198; Chew v. First Presbyterian Church (D. C.) 237 F. 219, 222; American Smelting & R. Co. v. Bunker Hill & S. Min. & C. Co. (D. C.) 248 F. 172, 182. The District Judge without doubt followed this rule. He took an ample indemnifying bond as a condition of the issue of the injunction, and the question of jurisdiction alone seems to have been sufficiently grave and difficult, in view of the circumstances surrounding’ the seizure by the defendants to warrant his action. In Ex parte in the Matter of the United States, as Owner of Nineteen Barges and Four Towboats, 263 U. S. 389, 393, 44 S. Ct. 130, 68 L. Ed. 351, the Supreme Court denied an application of tho United States for a wait of prohibition to forbid the District Judge below from enforcing Ms injunction against the defendants in the case in hand on the ground that the United States was a necessary party to this suit, and said:
“The merits of the ease present interesting questions. The question of remedy is, however, tho more insistent. Does the case justify it? Prohibition is a remedy of exigency and in exclusion of other process of relief. It is directed against unwarranted assumptions of jurisdiction or excesses of it. In some cases there may be instant judgment that such is the situation and the writ granted. In other cases there may be doubt and the writ denied. Ex parte Muir, 254 U. S. 522, 534 [41 S. Ct. 185, 65 L. Ed. 383]. And doubt in the instant case would seem to bo justified, for two District Courts [referring to the court below and the District Court for the Northern District of West Virginia in United States Harness Co. v. Graham, 288 F. 929] have decided that, under circumstances such as presented in this case, it does not involve or constitute a suit against the United States. And also the writ is to be denied if there be remedy against tho action complained of by appeal.”
Moreover, the United States acts and can act, contract, and estop itself only by the acts, contracts, and estoppels that are authorized or wrought by its officers or agents. In the opinion of the writer, by their action in this case the United States made William M. Black the lessor and vendor of the property, vested the legal title to it in him and the possession and equitable title in it in the plaintiff, represented and held Mm out as competent to make the terms of the lease and contract obligatory upon him and upon the property and enforceable by the courts in suits against him and his assigns without making the United States a party to such litigation. It does not appear, and it is improbable, that the plaintiff would ever have made this lease and contract with United States, reserving to itself the right to exempt itself and tho property from the jurisdiction and power of the courts to enforce the terms of the contract obligatory upon it, and it seems to tho writer that the United States and the lessor Black and his successors in interest are estopped by this lease and contract and their acts in placing and holding out the property as subject to its enforceable terms from preventing the plaintiff from protecting his rights and interests therein by suits against Black, the lessor, and Ms assigns on tho ground that the United States is a necessary party thereto. If, on the other hand, the United States or tho defendants, by tho plea that the former is a necessary party to all suits to enforce or protect the *854rights of the plaintiff in this property, its possession, the lease and contract concerning it, and by the refusal of the United States to become a party to any such suits or to bring suit itself, may defeat all such suits without regard to their merits, the plaintiff is left practically remediless, and his lease and contract become practically a deceitful sham. 'Again, the lease and contract of sale, and the rights of all parties in interest thereunder, arose from and evidence business or commercial transactions. In none of them was or is the United States acting as a sovereign in governing the nation or the people of the nation. The entire transaction, and any interest it may have in it, and the property involved as against the plaintiff, is a commercial and business and not a governmental matter. As against him it stands in the relation of a private party, divested of its privileges and immunities as a sovereign, and hence, of its privilege of exemption from suit against the party it made the lessor in this contract and amenable to the suits to enforce it. Bank of United States v. Planters’ Bank of Georgia, 9 Wheat. 904, 6 L. Ed. 244.
Moreover, the jurisdiction of the court is not the only serious question in this case. On the day this suit was commenced, and for more than a year before that day, the vessels were in the possession of the plaintiff under the lease and contract of sale, which contained the provision that noneomplianee by the lessee in the judgment of the lessor, William M. Black, Chief of Engineers, directed by the Secretary of War to represent the United States, with any of the terms or conditions of the lease, would justify his terminating and returning the property to the lessor. It will be noticed that the only condition that would justify the termination of the lease and the return of the property to the lessor was the noneomplianee by the lessee in the judgment of the lessor Black with the terms of the lease, while the defendants’ claim to possession rests on noncomplianee in the judgment of Hon. John W. Weeks, Secretary of War. The large value of the property subject to this lease and contract, the serious effect of the decision to be rendered by the judgment of Mr. Black, leave no doubt in the mind of the writer that the plaintiff intrusted this decision to, and relied upon, the individual wisdom, experience, knowledge, just and deliberate fairness of Mr. Black. The record does not disclose any decision of this question of noncomplianee by him, or any consent or agreement by the plaintiff to substitute the judgment of Hon. John W. Weeks, Secretary of War, or of any other person or officer for that of Mr. Black; and it seems to the writer that the judgment of Mr. Weeks, the Secretary of War, was not. binding upon the plaintiff, was unauthorized and ineffective. When two opposite parties agree to submit a controversy between them to the judgment of a chosen arbiter-in whose fairness, wisdom, deliberation, and discrimination they have confidence and to abide by his decision, the consent and agreement of both is indispensable to the substitution of another individual as arbiter in his place.
Again, the possession of this property, the optional right to purchase it on the terms prescribed by the contract, each of them constituted valuable property of the plaintiff vested in him under the contract. If the authority to take this property from the plaintiff, when in his judgment the latter failed to comply with any of the terms of the lease and contract had been given to-Hon. John W. Weeks, Secretary of War, as in the opinion of the writer it was not, the exercise of that authority and the taking of the possession and the property would have been conditioned by the fair,, deliberate, and judicial exercise of his judgment after reasonable opportunity for the plaintiff to present the pertinent facts and to be heard concerning his compliance with the terms of the contract. An arbitrary declaration or decision of the Secretary that in his judgment the plaintiff had failed to comply with the terms, without prior notice to him of the Secretary’s proposed consideration of that question, without opportunity for' him to present to the Secretary his claim that he had complied, and the facts and reasons upon which he based that claim, and without thoughtful, fair, and deliberate consideration of those facts and reasons before forming his judgment, it seems to the writer would not have warranted a judgment by the Secretary that the plaintiff had not complied with the terms of his contract-The plaintiff alleges in his complaint that no such notice or opportunity for him to. present the facts and reasons why he had complied was given to him before the Secretary formed his alleged judgment, nor before his seizure of the property, although by the plaintiff’s letter to 'the Secretary of March 8, 1923, he courteously requested such a hearing by the Secretary.
The Fifth Amendment of the Constitution of the United States states: “No per*855son stall * * * to deprived of life, liberty, or property, without due process of law. * * * ” This provision of the Constitution forbids citizens, officers, courts, and the United States itself, from depriving any person of his property without due process. Notwithstanding the provision in the lease and contract that William M. Black, the lessor, on noncompliance, in his judgment, by the plaintiff, with any of the terms of the lease and contract would be justified in terminating the lease and returning the property to tho lessor, the writer is unable to bring his mind to the conclusion that the acts of the defendants in this case, the notice of Hon. John W. Weeks, Secretary of War, of March 3, 1923, that, in his judgment, the plaintiff had not complied with the terms of the lease and contract and his peremptory demand that the plaintiff surrender the property, his failure to give notice of or an opportunity for a hearing before him by- the plaintiff on the question of the latter’s compliance with the terms of the contract, either before or after the plaintiff by his answer to the Secretary’s letter of March 3, 1923, requested such an opportunity and hearing by his letter of March 8, 1923, the sudden, coercing seizure and taking from the plaintiff of much of this property on Sunday, and the attempt to run it beyond the jurisdiction of the court below, constituted due process of law. To the writer they look more like an attempt to avoid or evade due process of law.
The questions of law and equity, to which reference has now been made, in the mind of the writer are grave and difficult, and, in view of them, the judge below was required to and did exercise his judicial discretion in issuing the interlocutory injunction. On this appeal from the order for its issuance, the only question judicable by this court is whether or not the order for the injunction and the record in this ease evidence an unlawful, improvident, or abusive exercise of his sound judicial discretion. As has been said earlier in this opinion, the law imposed upon him the duty to exercise this discretion, and the responsibility for its exercise, and left him wide latitude for action within the rules prescribed for his guidance. Neither that discretion nor the exercise of it was intrusted to this appellate court or to either of its members, and, in the opinion of the writer, it ought not to interfere with that exercise by the judge below to whom it was intrusted, unless an improvident, careless, or unreasonable exercise of it, violative of the rules of law which should have guided his action, has been committed. Blount v. Société Anonyine du Filtre, etc., before Circuit Judges, afterwards Justices of the Supremo Court, Taft and Jackson, 53 F. 98, 99, 100, 101, 3 C. C. A. 455; Stearns-Roger Mfg. Co. v. Brown, 114 F. 939, 941, 942, 52 C. C. A. 559.
For the reasons stated above, tho writer is not convinced that anything of this nature characterized the action of tho court below in the granting of this injunction, and he is unable to resist the conclusion that the order for it ought to be affirmed.