The opinion of the court was delivered by
Sharswood, J.
There are two kinds of injunctions in courts of equity. The one is preliminary or interlocutory; the other final or perpetual. The object of the first in general is simply preventive — to maintain things in the condition in which they are at the time until the rights and equities of the parties can be considered and determined after a full examination and hearing. A preliminary injunction is never awarded, except when the rights or equity of the plaintiff are clear, at least supposing the facts of which he gives primfi facie evidence to be ultimately established.
All injunctions are generally processes of mere restraint; yet final injunctions may certainly go beyond this and command acts to be done or undone. They are then termed mandatory. They are often necessary to do complete justice. But -the authorities, both in England and this country, are very clear that an inter[376]*376loeutory or preliminary injunction cannot be mandatory^ In Gale v. Abbott, 8 Jurist, N. S. 987, Vice-Chancellor Kindersley said: “ It was useless to come for what was called a mandatory injunction on an interlocutory application. Such an application was one of the rarest cases that occurred, for the court would not compel a man to do so serious a thing'as to undo what he bad done, except at the bearing.” So in Child v. Douglass, Kay 578, Vice-Chancellor Sir W. Pag.e Wood, now Lord Chancellor Hatherley, noticed, the same distinction: “ The plaintiff has a right to an injunction to restrain the building of the wall until further order; but I can make no order on an interlocutory application as to that part of the motion which relates to pulling down what has already been built.”
It was said by Chancellor Bland, in Murdoch’s Case, 2 Bland 469: “ To restrain a defendant from making any abusive use of the property in question, or from disposing of it past recall, amounts to no more than the imposition of a temporary limitation upon the free exercise of his right, even if it should eventually appear to be entirely and rightfully hiswhich is quite as far as any court can go in the first instance, and as preparatory to a fair beneficial bearing and final adjudication.
It was held accordingly in The Washington University v. Green, 1 Md. Ch. 97, that an injunction, unless issued after the final decree, when it becomes a judicial process, can only be used for the purpose of prevention and protection, and not for the purpose of commanding the defendant to undo anything which he had previously done. To the same effect are The New York Printing and Dyeing Establishment v. Fitch, 1 Paige 97; Bosley v. The Susquehanna Canal, 3 Bland 65; Attorney-General v. New Jersey Railroad Company, 2 H. W. Green’s Ch. R. 136; Attorney-General v. City of Patterson, 1 Stockton 624. This distinction between a preliminary and final injunction is fully recognised in our own decisions.
Mr. Justice Strong states it in his opinion at Nisi Prius, in The Lehigh Coal and Navigation Co. v. The Lehigh Valley Railroad Co., January 1855, No. 59, April 5th 1855, in which he says : “A preliminary injunction ought never to be granted except in a clear case, and then only to prevent a substantial injury. Its purpose is to keep things in their existing condition until the case can be finally heard. As it is the strong arm of the law, it must be used only when necessity requires it. And a preliminary injunction can never be necessary when the thing sought to be restrained has been already done; for its province is not to undo but to prevent and preserve.”
The same learned judge, delivering the opinion of the whole court in Farmers’ Railroad Co. v. Reno, &c., Co., 3 P. F. Smith 224, said: “ The sole object of such an order is to preserve the [377]*377subject of the controversy in the condition in which it is. when the order is made. It cannot be used to take property out of the possession of one party and put it into the possession of the other; that can be accomplished only by a final decree.”
To the same point is Mammoth Vein Coal Company’s Appeal, 4 P. F. Smith 188, in which the present Chief Justice said: “ It ought not to be forgotten that a preliminary injunction is a restrictive or prohibitory process, designed to compel the party against whom it is granted to maintain his status merely until the matters in dispute shall by due process of the courts be determined.” It is true that a mandatory order appears to have been made by Mr. Justice Lowrie, on a motion for a preliminary injunction before him in Allegheny county, in The Baptist Congregation v. Scannel, 3 Grant 48. It is enough to say of that case now, that the question does not appear to have been mooted or argued; at all events it is not adverted to in the opinion.
^There are some few instances in England in which a mandatory order has been made on an interlocutory application; but they have been very extreme cases, and ought not to be followed as precedents^ Thus in The Attorney-General v. The Metropolitan Board, 1 Hem. & Mil. 321, where the flue of a chimney had been stopped up by a plate put over it, so as to fill the house with smoke, the order was made so as to compel the defendant to remove it. In Hepburn v. Lardner, 2 Id. 345, damp jute was stored and dried on premises adjoining the plaintiff’s premises, at the imminent risk of combustion.
These- and perhaps a few other cases of similar character rest on the authority of Lane v. Newdigate, 10 Ves. 193, in which Lord Eldon, in what he considered a clear and hard case, evidently felt that he was treading on dangerous ground, and therefore resorted to indirection to accomplish his purpose. The plaintiff was the assignee of a lease of mill property granted by the defendant, with covenants for the supply of water from canals and reservoirs on defendant’s premises.
The allegation was that he had suffered the canal and reservoir to be out of repair, and especially had removed a certain stop-gate. Lord Eldon expressed a difficulty whether it was according to the practice of the court to decree or order repairs to be done, but afterwards said: “ So as to restoring the stop-gate the same difficulty occurs. The question is, whether the court Can specifically order that to be restored. I think I can direct it in terms which will have that effect. The injunction I shall order will create the necessity of restoring the stop-gate, and attention will be had to the manner in which he is to use these locks; and he will find it difficult, I apprehend, to avoid completely repairing these works.”
That is acknowledging that he could not, according to the prin[378]*378ciples and practice of the court, order the defendant in direct terms to restore the stop-gate and repair the works: the injunction should be so drawn that, although on its face restrictive only, it will, in order to comply with it, compel him to do these very things. This is not a precedent which ought to be followed in this or any other court. A tribunal that finds itself unable directly to decree a thing, ought never to attempt to accomplish it by indirection. Injunction as a measure of mere temporary restraint is a mighty power to be wielded by one man. It would extend far beyond all safe and reasonable bounds to permit it to go farther.
The reason of the distinction in this respect between an interlocutory and final injunction is very obvious. The former may be granted on an ex parte
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The opinion of the court was delivered by
Sharswood, J.
There are two kinds of injunctions in courts of equity. The one is preliminary or interlocutory; the other final or perpetual. The object of the first in general is simply preventive — to maintain things in the condition in which they are at the time until the rights and equities of the parties can be considered and determined after a full examination and hearing. A preliminary injunction is never awarded, except when the rights or equity of the plaintiff are clear, at least supposing the facts of which he gives primfi facie evidence to be ultimately established.
All injunctions are generally processes of mere restraint; yet final injunctions may certainly go beyond this and command acts to be done or undone. They are then termed mandatory. They are often necessary to do complete justice. But -the authorities, both in England and this country, are very clear that an inter[376]*376loeutory or preliminary injunction cannot be mandatory^ In Gale v. Abbott, 8 Jurist, N. S. 987, Vice-Chancellor Kindersley said: “ It was useless to come for what was called a mandatory injunction on an interlocutory application. Such an application was one of the rarest cases that occurred, for the court would not compel a man to do so serious a thing'as to undo what he bad done, except at the bearing.” So in Child v. Douglass, Kay 578, Vice-Chancellor Sir W. Pag.e Wood, now Lord Chancellor Hatherley, noticed, the same distinction: “ The plaintiff has a right to an injunction to restrain the building of the wall until further order; but I can make no order on an interlocutory application as to that part of the motion which relates to pulling down what has already been built.”
It was said by Chancellor Bland, in Murdoch’s Case, 2 Bland 469: “ To restrain a defendant from making any abusive use of the property in question, or from disposing of it past recall, amounts to no more than the imposition of a temporary limitation upon the free exercise of his right, even if it should eventually appear to be entirely and rightfully hiswhich is quite as far as any court can go in the first instance, and as preparatory to a fair beneficial bearing and final adjudication.
It was held accordingly in The Washington University v. Green, 1 Md. Ch. 97, that an injunction, unless issued after the final decree, when it becomes a judicial process, can only be used for the purpose of prevention and protection, and not for the purpose of commanding the defendant to undo anything which he had previously done. To the same effect are The New York Printing and Dyeing Establishment v. Fitch, 1 Paige 97; Bosley v. The Susquehanna Canal, 3 Bland 65; Attorney-General v. New Jersey Railroad Company, 2 H. W. Green’s Ch. R. 136; Attorney-General v. City of Patterson, 1 Stockton 624. This distinction between a preliminary and final injunction is fully recognised in our own decisions.
Mr. Justice Strong states it in his opinion at Nisi Prius, in The Lehigh Coal and Navigation Co. v. The Lehigh Valley Railroad Co., January 1855, No. 59, April 5th 1855, in which he says : “A preliminary injunction ought never to be granted except in a clear case, and then only to prevent a substantial injury. Its purpose is to keep things in their existing condition until the case can be finally heard. As it is the strong arm of the law, it must be used only when necessity requires it. And a preliminary injunction can never be necessary when the thing sought to be restrained has been already done; for its province is not to undo but to prevent and preserve.”
The same learned judge, delivering the opinion of the whole court in Farmers’ Railroad Co. v. Reno, &c., Co., 3 P. F. Smith 224, said: “ The sole object of such an order is to preserve the [377]*377subject of the controversy in the condition in which it is. when the order is made. It cannot be used to take property out of the possession of one party and put it into the possession of the other; that can be accomplished only by a final decree.”
To the same point is Mammoth Vein Coal Company’s Appeal, 4 P. F. Smith 188, in which the present Chief Justice said: “ It ought not to be forgotten that a preliminary injunction is a restrictive or prohibitory process, designed to compel the party against whom it is granted to maintain his status merely until the matters in dispute shall by due process of the courts be determined.” It is true that a mandatory order appears to have been made by Mr. Justice Lowrie, on a motion for a preliminary injunction before him in Allegheny county, in The Baptist Congregation v. Scannel, 3 Grant 48. It is enough to say of that case now, that the question does not appear to have been mooted or argued; at all events it is not adverted to in the opinion.
^There are some few instances in England in which a mandatory order has been made on an interlocutory application; but they have been very extreme cases, and ought not to be followed as precedents^ Thus in The Attorney-General v. The Metropolitan Board, 1 Hem. & Mil. 321, where the flue of a chimney had been stopped up by a plate put over it, so as to fill the house with smoke, the order was made so as to compel the defendant to remove it. In Hepburn v. Lardner, 2 Id. 345, damp jute was stored and dried on premises adjoining the plaintiff’s premises, at the imminent risk of combustion.
These- and perhaps a few other cases of similar character rest on the authority of Lane v. Newdigate, 10 Ves. 193, in which Lord Eldon, in what he considered a clear and hard case, evidently felt that he was treading on dangerous ground, and therefore resorted to indirection to accomplish his purpose. The plaintiff was the assignee of a lease of mill property granted by the defendant, with covenants for the supply of water from canals and reservoirs on defendant’s premises.
The allegation was that he had suffered the canal and reservoir to be out of repair, and especially had removed a certain stop-gate. Lord Eldon expressed a difficulty whether it was according to the practice of the court to decree or order repairs to be done, but afterwards said: “ So as to restoring the stop-gate the same difficulty occurs. The question is, whether the court Can specifically order that to be restored. I think I can direct it in terms which will have that effect. The injunction I shall order will create the necessity of restoring the stop-gate, and attention will be had to the manner in which he is to use these locks; and he will find it difficult, I apprehend, to avoid completely repairing these works.”
That is acknowledging that he could not, according to the prin[378]*378ciples and practice of the court, order the defendant in direct terms to restore the stop-gate and repair the works: the injunction should be so drawn that, although on its face restrictive only, it will, in order to comply with it, compel him to do these very things. This is not a precedent which ought to be followed in this or any other court. A tribunal that finds itself unable directly to decree a thing, ought never to attempt to accomplish it by indirection. Injunction as a measure of mere temporary restraint is a mighty power to be wielded by one man. It would extend far beyond all safe and reasonable bounds to permit it to go farther.
The reason of the distinction in this respect between an interlocutory and final injunction is very obvious. The former may be granted on an ex parte application; even when it is upon notice it is upon ex parte affidavits. The mode in which the testimony was taken in this case by an examiner was very unusual; but it cannot change the character of the application. The proceedings, in the nature of things, must be summary. Besides, the effects of an interlocutory injunction may often be the same as a final decree, as, indeed, in this very instance.
The decree appealed from in this case was clearly mandatory. It followed closely Lane v. Newdigate, if it did not go beyond it. It commanded the defendants to allot, allow or continue to the ■plaintiffs such use of a wharf or wharves as are required by them, which shall be equal in quantity and convenience to the wharf accommodations furnished to any other person; and that defendants refrain from allowing any other person to use any part of the wharves while they omit to furnish the plaintiffs with similar wharf facilities in a due proportion. We must take this decree, in connection with the undisputed fact that before, the bill was filed the defendants had allotted all their wharves to others; and it is very plain that they could not obey this decree without revoking this allotment and making a new one.
It is very true that it did not appear that any possession had been taken under the allotment at the time the bill was filed. It was upon paper merely. But that ought not to weigh in this case, because the several allottees under the allotment thus made were not made parties to the suit and have not been heard. Had they taken possession under their allotments it is not very easy to see how they could have been proceeded against for a- contempt. Their equities may be as strong as the plaintiffs’’. Beginners and small dealers have their rights as well as old and large ones. What contracts or arrangements for their business upon the faith of the allotment to them they had made we do not know. They were at least entitled to be heard.
Apart, however, from these considerations, we do not think that the facts disclosed by the depositions show so clear an equity [379]*379in the plaintiffs as would have entitled them to a restrictive injunction had they filed their bill before the allotment was made. It is not necessary to go further than this to prove that the preliminary injunction ought not to have been awarded. It is very doubtful whether the defendants, under their charter, are bound to provide any wharf accommodations for the coal-dealers at Port Richmond, and equally doubtful whether, having done so to a limited extent, not sufficient to supply the entire business, they are subject to any trust to use or dispose of that property in any particular way.
But concede both these points, what then ? As trustees there is a discretion reposed in them in the use of the property with which a chancellor cannot interfere. It is agreed that they have not room enough for all. They must select some and reject others. Can a chancellor inquire into their motives, and not approving of them, assume the selection himself? The case of Dummer v. The Corporation of Chippenham, 14 Ves. 245, upon which the plaintiffs principally rely, does not support their assertion.
There the trustees of a charity school threatened to remove the master because he had voted contrary to their wishes in the election of a member of Parliament. The question was: Had the Chancellor jurisdiction to inquire into the matter and enjoin against such removal ? It was upon demurrer to the bill. Had the master held his appointment for a term certain, which had expired or was about to expire, and the prayer had been to enjoin his reappointment, it would have had some analogy to this case.
Can any-one suppose that such a jurisdiction would have been assumed ? It is not a matter which is open to dispute upon the depositions that the allotment of wharves by the defendants was annual — that the allotment made to the plaintiff’s in 1869 had expired, and that there was no agreement to renew it. Changes appear to have been frequently made, although, as was natural, the allotments were generally renewed. It is agreed that the company might have put up these privileges every year and sold them to the highest bidder, as is somewhere done with the pews or seats in churches. They preferred to distribute them without premium or rent, in order that they might retain a more absolute control over the property.
It may well be, however, notwithstanding this, that an allottee turned out by the defendants, capriciously or from improper motives, during the year for which the allotment was made, might, on equitable grounds, he restored to the privilege for the rest of the year, or by an interlocutory injunction his removal, if threatened, prevented. But what right or equity has such an occupier superior to others, to hold over for another year ? That would be to assure him a perpetual lease. If such a perpetual lease had been granted to one coal-dealer exclusively in all the wharves, it might well be [380]*380argued that Sandford v. Railroad Company, 12 Harris 378, would go far to sustain the position that such a grant was extra vires.
That case has no bearing upon this. Transportation by a common carrier is necessarily open to the public upon equal and reasonable terms. An exclusive right granted to one is inconsistent with the rights of all others. This was not transportation, but ' wharfage, the nature of which requires exclusive possession temporarily. The railroad company as trustees for the public have a necessary discretion in the management of such interests, and the motives of their proceedings cannot be reviewed by the courts.
It would be a dangerous and alarming power to be exercised by a chancellor over corporations or other trustees, to direct the appointment to offices, or awarding of contracts, whenever it appeared that it was about to be used from political or other improper motives. This would be in effect to deprive the directors of corporations of their management, and to substitute the chancellor as supreme director or manager. Eor this reason we think the decree in this case ought not to stand.
Decree reversed and record remitted.