City of Newton v. Levis

79 F. 715 | 8th Cir. | 1897

SANBORN, Circuit Judge,

after stating the case as above, delivered the opinion of the court.

To state this case is to decide it. In reliance upon an ordinance of the city of Yewton, whose validity that city had repeatedly and constantly recognized for more than eight years, an electric plant had been constructed, poles had been erected, and wires had been strung, at an expense of $12,000, and the owner of this property was supplying half the private consumers in this city with electric light and power. This owner had mortgaged this property to the appellee for ’$10,000. The city was its active competitor in business. Suddenly that city repealed the ordinance on the faith of which these improvements were made, and threatened to cut down the poles of this owner, to remove its wires, and to secure to the city itself all the customers of its competitor, and thus utterly to destroy both its business and its property. The appellee denied the right of the city to take any such action, and appealed to the court below to restrain it from destroying the property and the business until its right to do so could be adjudicated.

The granting or withholding a preliminary injunction rests in the sound judicial discretion of the court, and the only question presented by this appeal is whether or not the court below erred in the exercise of that discretion, under the established legal principles which should have guided it. The propriety of its action must be considered from the standpoint of that court. When the appellee made his motion for an injunction, grave questions of law were presented, which required careful and deliberate examination. The exhaustive opinion of the court below in this case, which was published in 75 Fed. 884, the opinion of this court upon cognate questions in Illinois Trust & Sav. Bank v. City of Arkansas City, 22 C. C. A. 171, 76 Fed. 271,-and the fact that counsel have devoted 200 printed pages to their discussion in this court, sufficiently demonstrate the importance and difficulty of these questions. But the court below knew that it must ultimately consider and determine these matters at the final hearing of the case. If, meanwhile, it refused to issue the injunction, the; property and business of the electric company, and the security of the appellee, -would be immediately destroyed. Its final decree, if it should be in his favor, would be utterly nugatory. If it granted the injunction, it would do no more than to hold the parties in the same relation, and their property in the same situation, in which they had been, with the consent of the appellants, for more than eight years, and it would inflict no substantial loss or injury if the final decree should be in their favor. In other words, to grant the injunction was' to preserve the property of all parties in statu quo, and prevent substantial damage to any one, whatever the final decree might be, while to refuse it was to permit the immediate destruction of the property of the electric company and the security of the appellee, to allow the infliction of irreparable loss upon them, and to render the suit and its decision useless, if the final decree should be in favor of the ajipellee. There can be no question of the duty of the chancellor to issue an injunction under such circumstances. The controlling reason for the existence of the right to issue a preliminary injunction is that the court may thereby prevent such a change of the conditions and relations of persons and property during the litigation as may result in irremediable injury to some of the parties before their claims can be investigated and adjudicated. When the questions to be ultimately decided are serious and doubtful, the legal discretion of the judge in granting the writ should be influenced largely by the consideration that the injury to the moving party will be certain, great, and irreparable if the motion is denied, while the inconvenience and loss to the opposing party will be inconsiderable, and may well be indemnified by a proper bond, if the injunction is granted. A preliminary injunction maintaining the status quo may properly issue whenever the questions of law or fact to be ultimately determined in a suit are grave and difficult, and injury to the moving party will be immediate, certain, and great if it is denied, while the loss or inconvenience to the opposing party will be comparatively small and insignificant if it is granted. Great Western Ry. Co. v. Birmingham & O. J. Ry. Co., 2 Phil. Ch. 597, 602; Glascott v. Lang, 3 Mylne & C. 451, 455; Shrewsbury & C. Ry. Co. v. Shrewsbury & B. Ry. Co., 1 Sim. (N. S.) 410, 426; Georgia v. Brailsford, 2 Dall. 402; Blount v. Société Anonyme du Filtre; 6 U. S. App. 335, 3 C. C. A. 455, and 53 Fed. 98; Dooley v. Hadden, 38 U. S. App. 651, 20 C. C. A. 494, and 74 Fed. 429; Jensen v. Norton, 29 U. S. App. 121, 12 C. C. A. 608, and 64 Fed. 662.

The.arguments and brief of counsel invite us to a consideration of the questions of law which must - be finally determined upon a demurrer to the bill, or upon a final hearing of this case after answer. We have, however, found it unnecessary to decide these questions on this appeal, and we express no opinion upon them. They are of sufficient importance and difficulty to demand careful examination and deliberate consideration, and, whatever the ultimate answers to them may be, the preliminary injunction was rightfully issued, because it simply maintained the existing conditions, prevented irreparable loss to the appellee, and inflicted very slight, if any, loss or inconvenience upon the appellants. The decree below is affirmed, with costs.