Milwaukee Electric Railway & Light Co. v. Bradley

84 N.W. 870, 108 Wis. 467, 1901 Wisc. LEXIS 160

• Court: Wisconsin Supreme Court
• Decided: January 8, 1901
• Status: Published

Opinion

Maeshall, J.

A jurisdictional question is presented on facts that do not appear in the foregoing statement. Subd. 3, sec. 3069, Stats. 1898, which in the beginning was sec. 10, ■ch. 264, Laws of 1860, gives the right of appeal frqm an order granting, refusing, modifying, or dissolving an injunction. Sec. 3042, Stats. 1898, which in the beginning was part of sec. 9 of said ch. 264, limits the time for taking an appeal from such an order to thirty days from the date of the service by either party to the action upon the adverse party of a copy thereof with a written notice of the entry ■of the same. Sec. 3061, Stats. 1898, which in the beginning was sec. 19 of said ch. 264, and sec. 2, ch. 139, Laws of 1861, provides that when a party shall give immediate notice of ■appeal from an order dissolving or modifying an injunction he may, within three days thereafter, serve an undertaking ■on the adverse party, containing certain specified provisions, executed on bis part by at least two sureties, in such sum as the court or presiding judge thereof shall direct, and that thereupon he shall be entitled to an order continuing the injunction. In this case the notice of appeal was not given till nine days after the making of the orders appealed from. Because of that delay respondents’ counsel say the requirements of sec. 3061 were not satisfied and therefore this court has not obtained jurisdiction and should dismiss the appeal. Reliance is placed on Punch v. New Berlin, 20 Wis. 189, which fully supports counsel’s contention. However, the case was wrongly decided, as was very soon discovered. It pretty satisfactorily appears that the motion there to dismiss the appeal was not based on the ground upon which the dismissal took place, but on the fact that the appeal was from a chambers order. We find the case several times cited in the reports on that subject, but not cited in any subsequent opinion rendered to support the proposition that compliance with sec. 3061 is jurisdictional. The court evidently overlooked the fact that the section requiring imme-_ diate notice of the appeal has reference mainly to the condition upon which the appellant is entitled to an order continuing the injunction, and that the right of appeal and the termination of that right are governed by other and entirely independent sections. In Couldren v. Caughey, 29 Wis. 317, the jurisdictional question was again presented, relying upon Punch v. New Berlin, and the motion to dismiss was denied, such case being squarely overruled though without any mention of it in the opinion. The statement made by the reporter in the published report says that the moving party relied upon Punch v. New Berlin. One would suppose by reading the opinion that the court was dealing with an original question. That probably accounts for the eai’ly case appearing in the various existing tables of cases with no indication of its having been overruled. Attention is called to the later case in the syllabus to the early case in the annotated edition of the reports, but not in such a way as to indicate that it was overruled. What has been said sufficiently answers the suggestion that the appeal should be dismissed for want of jurisdiction. Punch v. New Berlin is not, but Couldren v. Caughey is, the law of this state on the subject considered.

From the statement of facts it will be observed that the legal right of plaintiff to demand the disputed fares, as a condition of travelers’ enjoying the benefits of its railway service, turns on the meaning of the ordinance of September 5, 1899. While such ordinance does not in terms cover or in any way refer to that part of the Wells street line west of the westerly limits of the city of Milwaukee and east of the easterly limits of the city of Wauwatosa, the claim is put forth as we understand it, as the justification for defendants’ conduct, that the purpose of such ordinance, among other things, was to limit the right of the grantee of the franchise to a single five-cent fare for a continuous trip one way over any part of the entire line in the oityr and town of Wauwatosa. Proof was made on the motion to dissolve the temporary injunction, as indicated in the statement, that the members of the common council of the city of Wauwa-tosa so understood the ordinance when it was adopted, and that the officers of the plaintiff had a far different understanding and one entirely consistent with the regulation for the collection of fares, of which defendants complain. Obviously, neither the understanding upon the one side nor that upon the other, independent of the intent of the parties to the ordinance as disclosed by it and the acceptance thereof, in the light of such circumstances as may properly be resorted to in aid of a judicial construction of the papers, if they need such construction, can have any bearing upon the rights of the litigants in this case. Plaintiff’s rights and those of the public as well must be measured by the franchises under which the railroad is maintained and operated..

Upon the face of the ordinance of September 5th, there is no warrant that we can discover for defendants’ position that it limits or refers in any way to plaintiff’s rights as to charges for service on that part of its line east of the city of Wauwatosa. It limits the fares that may be charged for that part of the line west of the easterly limits of said city, and no claim is made that the ordinance in that regard has been violated. In fact it appears that plaintiff’s officers have construed the ordinance so as to make that part of the line covered by it and the entire northern line, covered by the ordinance of May 11,1891, a single line, entitling a person to a trip one way over the whole or any part of it for a single fare of five cents. So, if defendants’ contention be correct, that the ordinance limits the fare to five cents for a trip one way over the whole or any part of the Wells street line west of Thirty-Sixth street, that result must be reached by broadening out the letter thereof by judicial construction.

We do not intend at this time to decide the case on its merits; but in order to apply correct principles to the question of whether the trial court exercised sound judicial discretion, or an}*- discretion at all, in dissolving the temporary injunction, we must look into the merits of the case, as disclosed by the record, sufficiently to see whether the right claimed by plaintiff may probably be vindicated by the final decree in the case. It is considered that enough has been said to make such probability apparent and to bring out clearly that only disputed questions of law are involved.

It follows from the preceding that there was presented, on the motions to vacate the temporary injunction, this situation: The right of plaintiff to collect the disputed fares depended upon questions of law arising on undisputed facts. It was engaged in gunm-public work that could not be disturbed by daily contests with patrons over its right to the fares demanded, without great and irreparable injury to its interests if it was acting in the right, and great prejudice to the traveling public desiring the benefit of its service, as well. There was no way for plaintiff to avoid such disturbances pending a judicial determination of the controversy, nor to avoid being harassed with a multitude of suits, civil and criminal, which were entirely useless as regards reaching such determination, except either by an appeal to a court of equity for protection or to temporarily surrender what it believed to be its rights. To avoid the mischief by submission, or to .allow the disturbances to continue, could not fail to result in irreparable damage to plaintiff. No proposition was made to protect plaintiff from loss by a bond; no requirement to that effect was made by the trial court as a condition of dissolving the injunction, and the situation was such that there was no practical way of protecting plaintiff against probable loss by that means. The damages that might probably result to defendants by reason of the injunction, in case plaintiff finally failed in the litigation, were trifling and easily indemnified against by a bond on its part given as a condition of the injunction; and the defendants were so protected. The primary right sought to be established was the right to a permanent injunction restraining defendants from doing the things in respect to which their liberty was restrained by the temporary injunction. In such situation the trial court dissolved the injunction unconditionally, leaving plaintiff the alternatives of ■temporarily surrendering what it believed to be its legal rights and suffering the irreparable loss reasonably certain to follow, or suffering as great or still greater loss by continuing the daily contest with defendants over the subject •of fares by reason of its endeavors to enforce its regulations; or of appealing to this court with an interim continuance of the temporary injunction. It chose the latter.

Did the trial court do right under the circumstances stated? That inquiry leads to this other: Why does power in equity exist to control situations pending litigation in regard to the rights involved? The answer to that may be found written in the judicial records of every court and. the works of every standard text writer, to the effect that the power is given to be exercised so as to promote the ends of justice. It is a broad discretionary power, essential to a, proper administration of justice, and to be used with judgment and consideration for the interests of both parties, and with good common sense, to the end that irreparable loss and useless litigation may be prevented, so far as that can justly be done in advance of a final determination of the rights of the parties.

We are told that fhe reason for dissolving the temporary injunction in this case is because defendants, by their answers, denied all the equities of the complaint, and the trial court understood that in such a case a temporary injunction, granted before answer, should be dissolved. If that were an absolute rule it would result in a mere denial of the equities of the plaintiff’s complaint, regardless of the probability yet remaining of his recovering in the litigation, displacing' the discretionary power of the court to protect the plaintiff from the conduct of his adversary pending the litigation. That would be absurd. The general rule is as stated; but. courts should not be misled into thinking that it is the universal rule. The idea that a denial by answer of all the equities of the complaint entitles the defendant, as a matter of right, to a dissolution of a temporary injunction, is unsound, though there are so many unguarded judicial expres-' sions in legal opinions, well calculated to induce a contrary view unless one keeps well in mind the underlying principles of equity power in such situations, that it is not strange that courts sometimes act upon the erroneous theory that a. denial of all the equities of the complaint displaces judicial discretion. Such principle recognizes that the judicial power to act by temporary injunction is designed to be used in aid of judicial administration in equity, and that it should be-■exercised to that end in the sound discretion of the court or judge. The general rule always, gives way when the circumstances are such as to require it, rather than that a litigant shall be subjected to serious danger of suffering irreparable loss. That was really the old chancery rule, and our statute (sec. 2774, Stats. 1898), in expressly conferring interim injunctive power on the courts, is supposed to have gone somewhat further than the rule of the old practice. It provides that, “ when it shall appear by the complaint that the plaintiff is entitled to the judgment demanded, and such judgment, or any part thereof, consists in restraining the commission or continuance of some act the commission or continuance of which, during the litigation, would produce injury to the plaintiff; or when, during the litigation, it shall appear that the defendant is doing, or threatens, or is about to do, or is procuring or suffering some act to be done in violation of the plaintiff’s rights respecting the subject of the action and tending to render the judgment ineffectual, a temporary injunction may be granted to restrain such act.” In Trustees German Evangelical Congregation v. Hoessli, 13 Wis. 348, it was remarked that such section “ seems to enlarge the former chancery power over the remedy by injunction.” So if there has been ingrafted upon the old equity rule in recent years exceptions not formerly known, which we are not ready to admit, the statute is ample warrant for it.

We reaffirm what was said in Valley I. W. Mfg. Co. v. Goodrick, 103 Wis. 436, on this subject: The general rule, so often stated, that on the coming in of the answer denying all the equities of the complaint the temporary injunction should be dissolved, ought to be stated with such qualifications as will preclude an understanding that it is universal, leaving no room to exercise judicial power, regardless of the necessities of the case, except to dissolve the injunction. If such were not the case the court would be vested with discretionary power, yet be so shackled by an arbitrary judicial rule as to take from it every element of discretion. Thus would the arm of equity be paralyzed,, though it is reputed to be long enough, when properly used, to lay hold of every situation where legal remedies fail, preventing irreparable mischief and remedying wrongs. It is more accurate and less liable to mislead to state the rule in regard to dissolving a temporary injunction on the coming in of an answer with this qualification: Notwithstanding the conflict between complaint and answer as to the facts or the law, it is still within the discretionary power of the court, by a temporary injunction, to preserve the status quo between the parties pending the final decree and to prevent the doing of the acts complained of during such pendency if that be necessary to save the plaintiff or the defendant from irreparable, injury by the conduct of his adversary in the meantime. Not only does the discretionary power exist to protect a party against such danger, but the duty exists to exercise it by making some reasonable provision to prevent such injury. In such cases, necessarily, the court should proceed with care, neither arbitrarily refusing to grant or continue an injunction, nor the reverse. The situation of the respective parties should receive careful consideration.If restraint upon the defendant will not subject him to-danger of any serious loss and he can be amply secured against that danger by a bond, and without such restraint the plaintiff will be in danger of suffering serious loss that cannot be adequately guarded against by a bond, good judgment may require such restraint with proper conditions. In other situations, a wise administration may demand a different course; but whatever the situation may be, it is in the power of a court of equity to so shape its administration as to reduce the danger of a miscarriage of .justice as low as human foresight can do it. A failure to exercise judicial power to protect litigants so far as practicable from probable loss, upon the theory that there is some arbitrary rule that displaces such power under certain circumstances, is error, and an unreasonable exercise of such power by refusing temporary restraint, where there is a clear necessity therefor, is an abuse of such power.

It seems that if the first error mentioned did not lead to the orders appealed from the other did. The temporary injunction should have been allowed to stand to the extent necessary to prevent useless litigation and a continuance of the conditions complained of pending the trial of this case. Notwithstanding all the equities of the complaint were denied, no serious loss to defendants in any event was probable, and the reverse was true as to plaintiff. If authorities were needed to this, the following amply sustain all that has been said: Valley I. W. Mfg. Co. v. Goodrick, 103 Wis. 436; Beach, Injunctions, § 307; Hicks v. Compton, 18 Cal. 206; 10 Ency. of Pl. & Pr. 1029; Bowen v. Haskins, 45 Miss. 183; High, Injunctions, § 1491; Clum v. Brewer, 2 Curt. 506; Moris C. & B. Co. v. Matthiesen, 17 N. J. Eq. 385.

In the foregoing we have considered only the action of the court in unconditionally vacating the temporary injunction. The conclusion reached does not go to the extent of holding that the injunction, in its entire scope, was proper. On the case made by the record presented on the motions to dissolve the injunction it would have been proper to have modified the injunction in one particular at least. That subject need not necessarily be considered here, though it is deemed proper to indicate the views of the court in aid of further proceedings that may be had.

Respondents’ counsel say it is an established principle of equity jurisprudence that the jurisdiction of equity does not extend to barring the privilege of a person to vindicate his legal rights at law. That is a general but by no means universal rule. There are many exceptions to it, sufficient to meet all situations where wrongs cannot be adequately prevented or redressed otherwise than by putting restraint upon the liberty of the person to use legal remedies. The case upon which respondents’ counsel chiefly rely (Third Ave. R. Co. v. New York, 54 N. Y. 159) amply shows the limitation of the rule. It is there said, in substance, that ‘the jurisdiction of a court of equity to prevent by injunction a multiplicity of suits is unquestionable and it may well be exercised for temporary restraint where there are a large number of actions pending, instituted by the same person in different courts to vindicate the same right, so as to prevent the prosecution of all but one of such actions.’ Equity jurisprudence goes as far as reason will permit, under the circumstances of each particular case, to discountenance useless litigation and prevent irreparable injury. With that familiar principle in view one need not feel bound in every case to test the right of a person to proceed by injunction, by precedents. If the case falls clearly within the principle, there is no room to doubt the jurisdiction. In the case to which we have referred the opinion closes with language which quite well fits this case except for the scope of the injunction here granted: “The prosecution of all the suits referred to in the complaint at one and the same time would be unnecessarily oppressive by having costs incurred which it is said in the complaint would be ‘ onerous and oppressive; ’ and the case is one, under all the facts disclosed, where the interference of a court of equity was properly invoked and exercised.”

It is particularly insisted by respondents’ counsel that the court should not have restrained the proceedings in the criminal actions. Here again a general principle is invoked,— the rule that equity will not interfere by injunction to prevent the exercise by courts of their criminal jurisdiction, nor to prevent the commission of crime,— without recognizing the exceptions, which are as well defined in the books as the rule itself, that such rule does not apply where the ends of justice require restraint upon the liberty of a person to commit minor offenses or to institute criminal prosecutions therefor as a means of invading and violating property or civil rights, thereby preventing the legitimate enjoyment thereof. High, Injunctions, § 68; Atlanta v. Gate City Gas L. Co. 71 Ga. 106; O’Brien v. Harris, 105 Ga. 732; Casey v. Cincinnati T. Union, 45 Fed. Rep. 135; Cœur d’Alene C. & M. Co. v. Miners’ Union, 51 Fed. Rep. 260; Toledo, A. A. & N. M. R. Co. v. Pennsylvania Co. 54 Fed. Rep. 730, 746. An examination of the cases cited will demonstrate that the jurisdiction of equity is frequently and successfully invoked to prevent misdemeanors and prosecution for such offenses where the commission and the prosecution thereof is resorted to or threatened as a means of preventing the enjoyment of property rights and there is no other way of adequately remedying the mischief, either by way of preventing the damage that might otherwise result or repairing such damage thereafter. ¥e conclude this branch of the case by saying that if the trial court had relieved Bradley from incapacity to proceed in the first civil case for damages, leaving full opportunity to test the right of the controversy in that one case, he would have had no good ground for complaint. The other cases did not serve any useful purpose. Their commencement was ill-advised and useless. Assuming that the parties were acting in good faith, one case was as good as a multitude for all practical purposes.

It is insisted on behalf of respondent Hethercut that his position is different from that of his associates, because he has never refused to pay the extra fare upon plaintiff’s cars; that he has only insisted that the collection of it is illegal; that the only active connection he has had with the controversy involved in this suit, as shown by the record, is to insist publicly and privately that plaintiff is in the wrong. If, when Hethercut answered the complaint, he had stood upon bis individual record in the matter instead of joining actively with the other defendants in their defense, there would be strong and perhaps unanswerable reasons for saying that as to him the dissolution of the injunction was proper. When we take his answer as a whole, it clearly appears that he thereby chose to take an active part in the legal contest to maintain the right of his associates to do the things complained of. That being the case, since a continuance of the injunction as to him cannot in any way injure him materially, we see no very good reason why he should be excepted from the restraint put upon his associates till the-final termination of the cause. If he shall not be held by the final decree, he will find ample protection for his damages in the bond given for that purpose and the costs which he will recover.

By the Court. — The orders appealed from are reversed.

Bardeeít, J., took no part.