FOSTER, Circuit Judge.
On July 23, 1923, appellants, hereafter called plaintiffs, filed a bill in the District Court for the Western District of Texas, at San Antonio, against the Asphalt Belt Railway Company, the San Antonio, Uvalde Gulf Railroad Company, and A.R. Ponder, receiver of the latter railroad, appellees, hereafter called defendants, alleging that the Asphalt Belt Railway Company was owned and controlled by the San Antonio, Uvalde Gulf Railroad Company, and would be in fact an extension of the lines of the last-named company, from a point at or very near its station of Pulliam, in Uvalde county, Tex., in a northwesterly direction for a distance of about 20 miles to a point in Uvalde county at or near the mines of the Texas Asphalt Company, and that said railroads were engaged in interstate commerce, and had not secured a certificate of public convenience and necessity from the Interstate Commerce Commission, which was required before the construction of the proposed extension.
The bill further alleged that the Asphalt Belt Railway Company had begun proceedings to condemn a right of way over property owned by plaintiffs, and therefore they were parties in interest. On this plaintiffs prayed for temporary and permanent injunctions, restraining defendants from further prosecuting condemnation proceedings in aid of the proposed construction of the road.
Defendants filed answers, and also moved to dismiss the bill. After a hearing the District Court recalled a restraining order previously entered and dismissed the bill, with leave to amend. An amended bill was filed, to which motions to dismiss and answers were filed by defendants. After a hearing on the pleadings and evidence received, the amended bill was dismissed. The court found that the Asphalt Belt Railway Company was not engaged in interstate commerce, and did not intend to engage in interstate commerce, and therefore did not require a certificate of public convenience and necessity before proceeding with the construction of the line, and that, as the parties were all citizens of Texas, neither diversity of citizenship nor a case arising under the laws of the United States was shown, and the court was without jurisdiction. 292 F. 876. From that decree an appeal was prosecuted to this court, but without a supersedeas or the reinstatement of the restraining order.
We are of the opinion that only the question of jurisdiction of the District Court as a federal court was involved and transferred the case to the Supreme Court, pursuant to the Act of September 14, 1922 (Comp. St. Ann. Supp. 1923, § 1215a). The Supreme Court found that the jurisdiction of the District Court as a federal court had not been challenged, and that the bill had not been dismissed purely on that ground, and returned the case here. See 267 U.S. 326, 45 S. Ct. 242, 69 L. Ed. 629. At the second hearing in this case it was admitted that the condemnation proceedings had so far progressed that the Asphalt Belt Railway had obtained a judgment of condemnation, had posted bond in double the amount awarded defendants in the expropriation proceedings, and that the road had actually been constructed and is now in operation.
It also appears, from proceedings before the Interstate Commerce Commission in the matter of an application by the New Orleans, Texas Mexican Railroad Company, an interstate carrier, asking for an order approving and authorizing the acquisition of the San Antonio, Uvalde Gulf Railroad Company and the Asphalt Belt Railway Company, appellees herein, Finance Docket No. 4889, order entered November 2, 1925, that the Interstate Commerce Commission was of the opinion that the Asphalt Belt Railway Company was not engaged in interstate commerce, and that the Commission had no jurisdiction over it, and no authority to either approve or disapprove of its acquisition by the New Orleans Texas Mexican Railway Company. Of this decision, of course, we take notice.
It appears from the above statement of facts that during the pendency of this suit the acts of the defendants in the District Court sought to be enjoined have been physically accomplished; therefore, even if we were so minded, to reverse the judgment of the District Court and order the injunction prayed for to issue would be a vain and useless thing. The case has now become moot in so far as the issues are here presented, regardless of what future relief appellants may be entitled to in a court of competent jurisdiction. This court will not decide moot questions. So we will not consider the case on the merits, but will make such order as is most consonant to justice, in view of the facts and circumstances now apparent. Heitmuller v. Stokes, 256 U.S. 359, 41 S. Ct. 522, 65 L. Ed. 990.
The judgment appealed from dismisses the bill. In order to preserve any rights appellants may have, that judgment will be amended, so as to dismiss the bill without prejudice. As so amended, it is affirmed.