I concur in the decree refusing to continue the restraining order pending the appeal, but I reach that conclusion from a consideration of the application on its merits. My view would lead to a denial of the application, but not to referring the motion to the Supreme Court. The plaintiff would, of course, be free to make such application to that court as it chose to make.
[8] The Railroad Commission of Alabama, by regular procedure, established for plaintiff’s road an intrastate passenger rate of 2% cents per mile for adults and 1J4 cents per mile for children. The rate in force on plaintiff’s road was 3 cents per mile for adults and 1 y2 cents per mile for children. The plaintiff filed the present bill to enjoin the order of the Commission. The case was heard before three judges, under Judicial Code, § 266, on an application for an interlocutory injunction. The effect of the injunction, if granted, would have been to enjoin the rates fixed by the Commission and to continue in force, pending the suit, the higher rates. The court, by a majority of the judges, refused the injunction, and, on August 12, 1913, put in force the rates established by the Commission, which rates are now in force. The question of the granting of the injunction .was within the judicial discretion of the court, governed by established equitable principles. In two opinions filed, the court gave reasons for the exercise of its discretion in refusing the writ. The application now before the court seeks to enjoin or stay the order of the Commission pending an appeal by the plaintiff to the Supreme Court from the order refusing the interlocutory injunction. The first application was for an injunction pending the suit which stood for trial in the District Court; *59the second application is for an injunctive order pending the appeal. Relief on either application meant the suspension of the rates fixed by the Commission and the re-establishment of the higher rates fixed by the plaintiff. Both applications are urged by the same arguments and the same offer of bond. I can see no reason for granting the second application that would not have been equally applicable to granting the first. To have granted the first would not have delayed a trial on the merits, while to grant the second may have that effect. The real practical question on both applications is whether the Commission’s order shall remain in force or be suspended. It is, of course, just as satisfactory to the plaintiff to enjoin it on appeal, with bond, as on the first application, with bond. The delay in enforcing the order, if it is finally enjoined, is likely to be greater by the granting of the stay on the second application than if it had been granted on the first. ít seems to me utterly useless to have refused the first application, if the second is to be granted. 1 [ a case is now presented for the exercise of judicial discretion by revoking, in effect, our former order, we should have granted the interlocutory injunction on the first application. We gave reasons for the refusal of the injunction which seem to me equally controlling on the second motion. Conceding that the statutes allow a supersedeas after denial of the injunction in cases arising under section 206, we have before us practically the same question that we had on the first application —whether or not the Commission’s order should be in force pending the litigation. The only difference is that the Commission’s order is now fortified by the opin ion of this court. Having refused to enjoin it and having put it in force on its merits after full hearing, it seems to me that it would be practically a reversal of our position to suspend it now after our elaborate approval of it. I do not lose sight of the fact that the first application was for an interlocutory injunction only, and that the second is also for appeal. The question of suspending the Commission’s oilier is separate from the chum for appeal. The latter is granted as a matter of course. But as to the suspension of the Commission's order pending an appeal, if we have authority to grant it, the granting of h. is a matter of judicial discretion. This application, like the one for the interlocutory injunction, is addressed to the judicial discretion.
It is argued that, because one of the judges dissented from the decision on the first application, such doubt is. created that the second application should be granted. If one thing is made clear by the statute, it is that one judge cannot grant the injunction. If, when the injunction is refused by the court, composed of three judges, the dissent of one of the judges was permitted to control a second application, and cause an injunction or a continuance of the restraining order, the purpose of the statute would be defeated. One judge could still prevent the enforcement of the rates fixed by a Commission or by a Legislature.
It is urged that the second application should be granted because the decision of this court may be reversed. If a majority of the court now believe we have decided erroneously in refusing the injunction on the first application, the way to correct it here, if we have authority *60to do so, is to set aside the order and grant the injunction. That should be done, if at all, directly, and not indirectly. The Supreme Court may, of course, reverse the decision. Many technical points are involved. But it is not likely that it will be held that the rates fixed by the Commission are confiscatory, in view of recent decisions of that court, some of them upholding, even a 2 cents a mile rate on roads and facts not greatly different from those involved here. There is no danger of injustice to the plaintiff in letting the rates fixed stand till final hearing, for, on the evidence submitted, the rates fixed by the Commission are not confiscatory.
Stress is laid on the plaintiff’s offer to-give bond to indemnify passengers. The same tender was made on the application for an interlocutory injunction. Where the rights of a defendant may be protected by bond, the court will often exercise its discretion in favor of granting or continuing an injunction; bond being required of the plaintiff. This is often the case in controversies between individuals involving a sum of money or certain property, or even involving contracts, where the interest involved is certain and the defendant in the suit is the person to be indemnified. The bond in such cases protects-the defendant. Here the defendants have no interest in the litigation. The suit is really against the people who travel or who may travel on the plaintiffs road. The Attorney General of the state receives notice under the statute, and appears, together with special counsel, for those really interested. The people who would travel at a lower rate, but who do not travel when the rate is unreasonable, are interested in enforcing the rate fixed by the Commission. No bond can be framed to protect them, for the individuals or numbers of individuals who would travel at the lower rate cannot be ascertained. The fact is, whatever the theory may be, that the bond in a case like this affords no adequate protection. The plaintiff, in argument, insists that at the 3 cents a mile rate it collects from passengers every day $400 more than it receives at the 2%-cent rate; that is, if it obtains the stay, and if there is a delay of 300 days in deciding the appeal, it will collect $120,000 that the Commission and this court have decided it ought not to collect. During the 300 days the plaintiff will hand each purchaser of a ticket a coupon representing the excess charge. The theory is that these coupons will be presented and redeemed if the lower rate is finally sustained. The fact is that such coupons are not, to any considerable extent, preserved and presented. Probably not one coupon in a hundred would ever be presented for payment. The plaintiff has nothing to lose and everything to gain by litigation and appeals prosecuted .under such bonds. To allow an injunction under the circumstances is to needlessly encourage such suits and appeals and to prolong the litigation. The plaintiff has nothing to lose. If it fails in the final result, it will have the cash in hand to cover all possible claims, with probably a large surplus that would never be claimed.
The reasons which led to the passage of the statutes now forming, section 266 of the Judicial Code are well known, and are part of the judicial and political history of the country, and no comment on them is necessary. The. legislation was intended to check and prevent a *61practice by which one judge, on cx parte hearings and affidavits, superseded acts of Legislatures and Commissions indefinitely, on the ground that they were unconstitutional. The purpose of the section should not be disregarded in construing it, or in the exercise of judicial discretion in deciding applications based on it. The purpose clearly is to restrict the issuance of interlocutory injunctions in a designated class of cases, and to prevent delays in the enforcement of certain statutes or orders of Commissions. The section authorizes a single judge to receive the application for an interlocutory injunction, but not to grant it. He is required to call to his assistance two other judges “to hear and determine the application.” The two other judges are called for no oilier purpose, and no other duty is imposed on them by the text of the section. The judge to whom the application is made may, to prevent irreparable loss or damage — and only for that purpose — grant a temporary restraining order; but such order is to remain in force “only until the hearing and determination of the application for an interlocutory injunction.” When the two judges who are called to the assistance of the judge to whom the application is made sit with him. and hear and determine the case, and make an order granting or denying the interlocutory injunction, they have discharged the duty placed on them by the words of the statute. They have done what they were cabed to do, and what the statute authorizes them to be called for; that is, to the assistance of the judge to whom the application was made — “to his assistance to hear and determine the application” for an injunction. The section provides that an appeal may be taken to the Supreme Court from the order granting or refusing the injunction, but there is nothing in the section to indicate that the District Judge alone could not grant the appeal. If he alone granted the appeal, it would, of course, be without an accompanying order suspending the operation of the disputed rates, for it cannot be held that if was intended that the one judge could defeat the order of the three judges by granting a stay on appeal which had just been refused by the three judges on die application for injunction. But the contention of die plaintiff is that the three judges, or a majority of them, may, after refusing the interlocutory injunction, grant an appeal and continue the restraining order against the rate in question until the appeal is decided. The very question which the section brings the three judges together to hear is whether or not an interlocutory injunction shall be granted. If it is granted, there is no longer any need for the restraining order to prevent the rates going into effect, for the interlocutory injunction would take the place of'the restraining order; if it is refused, the restraining order should end, because the statute so provides, and because the refusal is a decision that there should be no injunction and that the rates opposed should go into effect.
The provision requiring five days’ notice to the Governor and Attorney General and to the defendants, the provision peremptorily limiting the operation of the temporary restraining order, and the provision that the federal courts will surrender jurisdiction upon certain conditions of litigation in the slate courts (judicial Code, § 266), ah point to a reluctance on the part of Congress to have state action en*62joined by federal power, and to the intention that, if the court composed of three judges refuse the interlocutory injunction, the contested rates shall be enforced.
But if it be conceded that the statute or the general law gives us a discretionary power to set aside the Commission’s rate now in force and to reinstate the rates fixed by the railroad company — a question not necessary to decide now — I do not think a case is presented for the exercise of such discretionary power. The application to continue the restraining order should be refused, because we have already decided that the rate fixed by the Commission should not be enjoined. I reach this conclusion from reasons given in this opinion and from the reasons given in other opinions filed in this case on the application for an interlocutory injunction.