prevent breaches of trust, it will follow that it has jurisdiction to restrain a misapplication by the corporate authorities of such a fund, although the same may have been raised by a rate or tax. In one case Lord Eldon supported the jurisdiction of the Court of Chancery to restrain the ultra vires acts of the commissioners for paving, lighting and cleansing an incorporated town, on the ground that the fund which had been placed by the act of Parliament at their disposal for a certain purpose presented the case of a gift or grant for charitable uses, within the terms of the statute of Elizabeth. although the jurisdiction in England to control, in this manner, the trustees of parishes and other public and quasi-public corporations, appears to be well settled, and although the jurisdiction might not be rested upon that statute in America, but would be generally rested on the broad ground of the power of a court of equity to deal with trusts, the existence of the jurisdiction is equally beneficial and scarcely less doubtful.

But,

§ 7776. Injunctions to Restrain Invasions of Corporate Franchises.-Injunctions will be granted to restrain the invasion of franchises granted to corporations where the corporation would be without an adequate remedy at law in the sense already considered,—as, for instance, to protect a turnpike company in its exclusive privilege of erecting toll gates and receiving tolls upon a common highway; or to protect the grantee of an exclusive right to the navigation of a river, to whom the right had been granted in consideration of improving the navigation and putting a boat thereon within a stated period of time. Speaking with reference to this subject it has been said by Chancellor Kent: "The equity jurisdiction

1 Attorney-General v. Poole, 4 Mylne & Cr. 17.

2 Stat. 43 Eliz., ch. 4; AttorneyGeneral v. Brown, 1 Swanst. 265, 306.

3 Attorney-General v. Pearson, 2 Coll. 581. Compare Attorney-General v. Compton, 1 Young & Coll. 417; Attorney-General v. Cullum, 1 Young & Coll. 411.

• Osborn v. Bank of United States, 9 Wheat. (U. S.) 738.

"Croton Turnpike Co. v. Ryder, 1 Johns. Ch. 611; ante, §§ 5304, 5404.

Moor v. Veazie, 31 Me. 360. See also Bush v. Western, Finch's Prec. in Chan. 530; Whitechurch v. Hide, 2 Atk. 391; Livingston v. Van Ingen, 9 Johns. (N. Y.) 507.

in such a case is extremely benign and salutary. Without it the party would be exposed to constant and ruinous litigation, as well as to have his right excessively impaired by frauds and evasion." Upon the same subject the Supreme Court of Alabama have also said: "The jurisdiction of a court of equity to protect a franchise of this kind [the right of a railway company to load and unload in the public streets of a city] from unlawful invasion or disturbance, is clearly settled, and has been often recognized by this court as benign and salutary. The value of such a right, or the cost of its unlawful disturbance, cannot be reduced to a pecuniary measure. When the purpose is its utter destruction, the duty to protect becomes correspondingly more urgent and imperative. The ground of its exercise is usually the prevention of irreparable injury, or such as cannot be adequately estimated in damages at law; at other times, the avoidance of a multiplicity of suits, and again the abatement of annoyance in the nature of a legal nuisance. Another controlling reason for interference by equity in such cases is, that the public at large have an interest in the protection of such a privilege, as well as the parties particularly interested." But this jurisdiction will not be exercised where the direct purpose of the injunction is to restrain the so-called legislative acts of a municipal corporation, — that is, to restrain

the

2

passage of an ordinance, which, if carried out, will operate as an invasion of a franchise previously granted to a private corporation. Thus, an injunction will not be granted, at the suit of a gas company, to restrain the council of a city from passing an ordinance allowing other gas companies to lay pipes in its streets, because the city has already granted an exclusive privilege to complainant gas company to lay and maintain pipes in its streets.' While so holding, the court, speaking through Mr. Justice McClellan, say: "If an individual or private corporation had

'Croton Turnpike Co. v. Ryder, 1 Johns. Ch. (N. Y.) 611, 616.

2 Mobile v. Louisville &c. R. Co., 84 Ala. 115, 123; 8. c. 5 Am. St. Rep. 342, 349; citing Stage Co. v. American

granted a franchise like that

Society, 15 Abb. Pr. (N. s.) (N. Y.) 51.

• Montgomery Gaslight Co. v. Montgomery, 87 Ala. 245, 257; 8. c.

6 South. Rep. 113; 4 L. R. A. 616.

involved here, and was about to repudiate the grant and make other contracts with respect to its subject-matter, which would cast a cloud on the title held under the first grant; or, if in this case, the city had already passed an ordinance granting the privilege to private parties, who were threatening to exercise it to the injury of the original grantee;-in either of these cases unquestionably a court of equity would enjoin the threatened action." 1

8 7777. When not Necessary to Establish the Franchise in a Trial at Law. Where the grant of a franchise is disputed and the right to its exercise doubtful, then the rule of equity procedure is that the party claiming an injunction for its protection must first establish his right in a trial at law. But where the plaintiff shows a clear and undisputed right granted by statute, and shows that he is in the possession and exercise of the right at the commencement of the action, he may claim an injunction without going to the idle expense and delay of establishing his right at law. Speaking with reference to this question, the Supreme Court of Alabama have said: "The party aggrieved is not required to establish his right at law before he is permitted to invoke the aid of equity, if such right is clear and free from doubt. The verdict of a jury is only necessary where the right claimed is doubtful. The right is here determined by a municipal ordinance in the nature of both a grant and contract which is in writing. Its construction is for the court, and not for the jury." Speaking with reference to the same question, the Supreme Judicial Court of Maine have also said: "If the complainant relies on a private grant and there is a denial of the right claimed, he must first establish his claim at law. But in those cases where there has been a long continued and

1 Montgomery Gaslight Co. v. Montgomery, 87 Ala. 245, 257; 8. c. 6 South Rep. 113; 4 L. R. A. 616; citing Birmingham &c. R. Co. v. Birmingham Street R. Co., 79 Ala. 465; s. c. 58 Am. Rep. 615; 2 High Inj., § 902, et seq.

• Croton Turnpike Co. v. Ryder, 1 Johns. Ch. (N. Y.) 611.

Mobile v. Louisville &c. R. Co., 84 Ala. 115; s. c. 5 Am. St. Rep. 342, 349.

uninterrupted possession and enjoyment of the right, an injunction may issue without a trial at law. Where a State has the right to make the grant, and it has been made, and the required conditions have been performed, it has been held to be equivalent to a determination at law that the right exists. Unless it be a matter of doubt whether the act complained of is a nuisance, the only object of a trial at law would be to test the constitutionality of the grant from the State. . . . . The principle to be derived from the authorities seems to be this: Where the statute right does not appear to be in doubt and the act complained of is clearly a violation of it, the power of injunction may be properly exercised; but where there is doubt as to the statute right, or it is uncertain whether the acts complained of amount to a nuisance, an injunction should not be decreed until the rights become ascertained at law. And it has been holden that where the acts complained of are or may be destructive of the rights of the complainant, an injunction may be granted."1

-a

§ 7778. To Enjoin State Railroad Commissioners from Establishing Rates and Charges. Assuming that the statute creating a State Board of Railroad Commissioners and requiring them to establish schedules of rates and charges for the different railways within the State, is valid under the constitution of the United States, a subject already considered,3 — an injunction will not be granted to restrain such commissioners from proceeding under the statute to fix such rates, because to do so would be to control their discretionary action. The rule that the discretionary action of public officers will not be controlled or interfered with by mandamus1 is equally applicable to the writ of injunction.s

1 Moor v. Veazie, 31 Me. 360, 377; distinguishing Ingraham v. Dunnell, 5 Metc. (Mass.) 118, and Porter v. Witham, 17 Me. 292.

1 Ante, § 5530, et seq.

8 Reagan v. Farmers' Loan &c. Co., 154 U. S. 362; McWhorter v. Pensacola &c. R. Co., 24 Fla. 417; s. c.

12 Am. St. Rep. 220; 5 South. Rep. 129; 2 L. R. A. 504.

Wood v. Strother, 76 Cal. 545; 8. c. 9 Am. St. Rep. 249, 257, 258; Towle v. State, 3 Fla. 202; High Ext. Rem., §§ 42, 80.

McWhorter v. Pensacola &c. R. Co., 24 Fla. 417. The injunction in the

§ 7779. To Enjoin State Railroad Commissioners from Enforcing Unreasonable Rates. In the leading Federal case on this subject, in which the doctrine of preceding cases may be said to have culminated after some modifications of opinion, and in which the court was at last fortunately unanimous, it was held that a citizen of another State, who feels himself aggrieved and injured by the rates prescribed by a State railway commission, may seek his remedy in equity against such commissioners in the Circuit Court of the United States within the State of such commission, and may have an injunction against the enforcement of such rates as are found to be unreasonable and unjust in the sense of being confiscatory, that is, in the sense of depriving the railroad company of the means to pay its fixed charges, and to pay to its stockholders a reasonable remuneration for their investments.'

§ 7780. Whether a Bill for an Injunction against Railway Commissioners is a Suit against the State. -The Federal doctrine is that a bill in equity, in a court of the United States, by a citizen of another State, to enjoin the railway commissioners of the State in which the suit is brought, from the enforcement of unreasonable rates of charges against the railroad company, is not a suit against the State, within the constitutional rule which excludes Federal jurisdiction in such cases. It has been reasoned by the Supreme Court of Florida,

particular case which was awarded by the court below and set aside on appeal, prohibited the railroad commissioners from "promulgating as binding upon the complainant the rates for transportation of freight and passengers heretofore prescribed by the defendants for the complainant, or other rates substantially the same as said rates, and from procuring or permitting the institution of any suits against the complainant for any alleged charges by the complainant in excess of the said rates heretofore fixed, or in excess of any other rates

which may be fixed by the defendants for the complainant substantially the same as the said rates." McWhorter v. Pensacola &c. R. Co., supra.

1 Reagan v. Farmers' Loan & Trust Co., 154 U. S. 362. See also Reagan v. Mercantile Trust Co., 154 U. S. 413 and 418; Reagan v. Farmers' Loan & Trust Co., 154 U. S. 420.

2

Reagan v. Farmers' Loan & Trust Co., 154 U. S. 362. See also Reagan v. Mercantile Trust Co., 154 U. S. 413, 418; Reagan v. Farmers' Loan & Trust Co., 154 U. S. 420.