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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 a batement 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

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

an ordinance allowing other gas companies to lay pi pes 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 individ

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Society, 15 Abb. Pr. (N. 8.) (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."

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

· Montgomery Gaslight Co. v. Mont- · Croton Turnpike Co. v. Ryder, 1 gomery, 87 Ala. 245, 257; 8. c. 6 South Johns. Ch. (N. Y.) 611. Rep. 113; 4 L. R. A. 616; citing Bir- 8 Mobile v. Louisville &c. R. Co., mingham &c. R. Co. v. Birmingham 84 Ala. 115; 8. c. 5 Am. St. Rep. 342, Street R. Co., 79 Ala. 465; 8. c. 58 Am. 349. Rep. 615; 2 High Inj., $ 902, et seq.

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."

§ 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,? — 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 mandamusis equally applicable to the writ of injunction."


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

4 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.

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

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8 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 opin. ion, 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.

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§ 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 con. stitutional rule which excludes Federal jurisdiction in such cases. It has been reasoned by the Supreme Court of Florida,


particular case which was awarded which may be fixed by the defendby the court below and set aside on ants for the complainant substanappeal, prohibited the railroad com- tially the same as the said rates." missioners from "promulgating as McWhorter v. Pensacola &c. R. Co., binding upon the complainant the

supra. rates for transportation of freight Reagan v. Farmers' Loan & Trust and passengers heretofore prescribed Co., 154 U. S. 362. See also Reagan by the defendants for the complain- v. Mercantile Trust Co., 154 U. S. ant, or other rates substantially the 413 and 418; Reagan v. Farmers' same as said rates, and from procuring Loan & Trust Co., 154 U. S. 420. or permitting the institution of any ? Reagan v.

Farmers' Loan & suits against the complainant for any Trust Co., 154 U, S. 362. See also alleged charges by the complainant Reagan v. Mercantile Trust Co., 154 in excess of the said rates heretofore U. S. 413, 418; Reagan v. Farmers' fixed, or in excess of any other rates Loan & Trust Co., 154 U. S. 420.

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that where the statute provides that railroad commissioners shall make and fix reasonable and just rates of freight and passenger tariffs, to be observed by all railroad companies doing business within the State, and shall, as soon as practicable, furnish each company with a schedule of such charges, - a suit to enjoin such commissioners from enforcing such charges, on the ground that they are unreasonable and unjust, is not, in itself, a suit against the State; but the court further reasoned, with reference to the case before them, that as the statute provides a penalty for the violation of such rates as fixed, and directs the commissioners to sue in the name of the State to recover the penalty, if the bill for an injunction also prays that they be enjoined from instituting such suit, it becomes, in effect, an action against the State, and cannot be maintained.

§ 7781. At the Suit of Private Persons to Compel Corporations to Perform their Public Duties.- In the absence of a special injury done to him, or of a special right of action conferred by statute, the general rule is that a private person cannot maintain a suit in equity, the purpose of which is to compel a corporation to perform its public duties. The reason is that if one individual may interpose, any other may, and

'McWhorter v. Pensacola &c. R. Co.

, 24 Fla. 417; 8. c. 5 South. Rep. 129; 12 Am. St. Rep. 220; 2 L. R. A. 504. It was at one time held in the Supreme Court of the United States that the court would look only to the record to determine whether or not the action was an action against the State

: Osborn v. Bank of U. S., 9 Wheat. (U. S.) 738; Davis v. Gray, 16 Wall. (U. S.) 203. But in subsequent cases the court discovered that this test was too narrow: Louisiana v. Jumel, 107 U. s. 711; Cunningham v. Macon &c. R. Co., 109 U. S. 446; Hagood v. Southern, 117 U. S. 52; Re Ayers, 123 U. S. 443; Virginia Coupon Cases, 114 U. S. 269. See

New Hampshire v. Louisiana, 108 U.S. 76; State v. Burke, 33 La. An. 498; Weston v. Dane, 51 Me. 461; Marshall v. Clark, 22 Tex. 23; Houston &c. R. Co. v. Randolph, 24 Tex. 317; Printup v. Cherokee R. Co., 45 Ga. 365; Hosner v. De Young, 1 Tex. 764. In round terms, the rule is that a sovereign State cannot be sued without its own consent, and then only in the mode and in the tribunal pointed out by that consent, which must be unequivocally expressed; and that what cannot be done directly, cannot be done indirectly in the form of actions against its officers: Moore v. Tate, 87 Tenn. 725; 8. C. 10 Am. St. Rep. 712, 724, note.

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