Arizona Edison Co. v. Southern Sierras Power Co., 17 F.2d 739

17 F.2d 739 | 9th Cir. | 1927

GILBERT, Circuit Judge

(after stating the facts as above). The scope of the inquiry on the appeal is not confined to the question of the exercise of the trial court’s discretion, which is usually decisive on appeals from orders granting or refusing to dissolve interlocutory injunctions. In a ease such as we find this to be, an appellate court may properly go farther and consider whether or not the case made by the bill of complaint is of the class of cases in which injunctive relief may be granted; 'for it is well-settled that, where there is an insuperable objection to the bill, either as to jurisdiction or merits, an appellate court may enter a final decree directing its dismissal. Mast, Foos & Co. v. Stover Mfg. Co., 177 U. S. 485, 495, 20 S. Ct. 708, 44 L. Ed. 856; Harriman v. Northern Securities Co., 197 U. S. 244, 287, 25 S. Ct. 493, 49 L. Ed. 739; U. S. Fidelity Co. v. Bray, 225 U. S. 205, 214, 32 S. Ct. 620, 56 L. Ed. 1055; Denver v. New York Trust Co., 229 U. S. 123, 136, 33 S. Ct. 657, 57 L. Ed. 1101.

To enjoin the breach of a contract is, in effect, to decree its specific performance, and the principles applicable to the two remedies are the same. 2 Pom. Equity Jur. (3d Ed.) § 1341; Hutchinson Gas & Fuel Co. v. Wichita Natural Gas Co. (C. C. A.) 267 F. 35. In Hennessy v. Woolworth, 128 U. S. 438, 442, 9 S. Ct. 109, 111 (32 L. Ed. 500) Mr. Justice Harlan said: “Specific performance is not of absolute right. It rests entirely in judicial discretion, exercised, it is trae, according to the settled principles of equity, and not arbitrarily or capriciously, yet always with reference to the facts of the particular case.”

It is a settled principle that a court of equity will ordinarily decree specific performance only when it can dispose of the matter in controversy by a decree capable of present performance. It will not decree a party to perform a continuous duty extending over a series of years, but will leave the aggrieved party to his remedies at law. Marble Co. v. Ripley, 10 Wall. 339, 359, 19 L. Ed. 955; Javierre v. Central Altagracia, 217 U. S. 502, 30 S. Ct. 598, 54 L. Ed. 859; Texas & P. R. R. Co. v. City of Marshall, 136 U. S. 405, 10 S. Ct. 846, 34 L. Ed. 385; Berliner Gramophone Co. v. Seaman (C. C. A.) 110 F. 30; Electric Lighting Co. of Mobile v. Mobile & S. H. Ry. Co., 109 Ala. 190, 19 So. 721, 55 Am. St. Rep. 927; United Cigarette Mach. Co. v. Winston C. Mach. Co. (C. C. A.) 194 F. 947, 958; York Haven Water & Power Co. v. York Haven P. Co. (C. C. A.) 201 F. 270, 277; Poultry Producers of Southern Cal. v. Barlow, 189 Cal. 278, 208 P. 93; City of Newport v. Newport Light Co. (Ky.) 21 S. W. 645.

If in the instant case the trial court by final decree should enjoin the appellant from breaching during the term" thereof the contract as it now stands, such a decree would not necessarily finally dispose of the rights of the parties under the contract. Nor would it meet a situation that might thereafter arise under the numerous provisions of this complicated contract, or in case the Railroad Commission of California should exercise the power which the bill alleges it to possess to command the appellee to advance the rates chargeable to the appellant. In brief, the inability of a court of equity to dispose of the whole controversy, and its refusal to superintend the protracted and continuous performance of a contract, stand in the way of the injunctive relief which is here sought. Although the general rule of equity practice has been relaxed in eases in which publie interests were so far involved as to be found of controlling importance, and of such a nature as to demand the enforcement of similar contracts (Joy v. St. Louis, 138 U. S. 1, 47, 11 S. Ct. 243, 34 L. Ed. 843; Union Pac. Ry. Co. v. Chicago, etc., Ry. Co., 163 U. S. 564, 16 S. Ct. 1173, 41 L. Ed. 265), it is believed that in no instance has specific performance been decreed of contracts such as this, where, as here, publie interests were in no way imperiled, and no principle of publie policy prevented the relegation of the plaintiff to his legal remedies.

Indeed, so far as publie interests are concerned in this case, it is manifest that they are opposed to the enforcement of the contract, for the Arizona Corporation Commission, by its order of June 19, 1926, has found that the service furnished by the appellant to consumers of electrical energy in Yuma is wholly unreasonable, insufficient, unsatisfactory, and inadequate by reason of its failure to receive from the appellee an uninterrupted primary supply of electrical energy, which service the commission found to be the best that the appellee could furnish, “and,” says the order of the commission, “inasmuch as it is absolutely essential that reasonable, sufficient, satisfactory, continuous, and adequate service of electrical energy be furnished by Arizona Edison Company to the consumers in Yuma, it is further ordered that said Arizona Edison Company is directed and required, at the earliest possible date hereafter, to secure and provide a reasonable, sufficient, satisfactory, continuous, and adequate primary supply of electrical energy for sale and distribution to its consumers in Yuma, Arizona.”

The appellee contends that the order of the Arizona Commission, if construed as prohibiting the performance of the contract, is void, for the reason that the contract is to be performed in the state of California, and the jurisdiction of the commission does not extend to service rendered by the appellee in that state. The jurisdiction of the commission extends nevertheless to the appellant and controls its action, and the said order, and the commission’s possible future orders to the appellant, but add to the complications which will conflict with the power of a court of equity to supervise and direct the continuous performance of the contract.

The order of the court below is reversed, and the cause is remanded, with instructions to dismiss the bill.