206 P. 149 | Wyo. | 1922
Plaintiff in error, brought this action against the defendant in error claiming that it has the exclusive right to haul, collect and remove rubbish, garbage and other refuse in. and from the city of-Casper; that it-has fully complied with- all- the conditions by it required; that said city is
“Sec. 6. Any person, firm or corporation desiring to engage in the business regulated by this ordinance shall maintain a centrally located office, provided with telephone, at which place all complaints and calls for service shall receive prompt attention, giving twenty four hour service on demand and removing dead animals and deteriorated material upon notice, so long as the fees charged by them are paid.
“Sec. 7. It shall be unlawful for any person, firm or corporation to conduct or engage in the business regulated by this ordinance without first giving a Surety bond in the sum of Three thousand dollars ($3000.00) payable to the City of Casper for the faithful performance of the condi7 tions in this ordinance set forth, and first securing from the City Council of the City of Casper a written contract to conduct such business, which business shall at all times be under the supervision of the Board of Health of the City of Casper, 'Wyoming.”
It is further alleged that a contract, pursuant to the said ordinance was entered into on August 29th, 1921, between the said city, as first party, and the assignors of the plaintiff in error as the second parties, the material portions of which are as follows:
. “1. That for and in consideration of the parties of the second part fully equipping themselves to care for the hauling of all garbage and refuse as defined in. Ordinance No. 225-A of the City of Casper and their agreeing to place themselves under the supervision of the Health Department*456 of the City of Casper, and their agreeing to comply with all the provisions and conditions as set forth in Ordinance No. 225-A of the City of Casper, the party of the first part grants unto them, the parties of the second part, the right of hauling such garbage and refuse as set forth in the said ordinance in the city of Casper for the period of two years.
“2. It is further mutually agreed that this contract may be renewed from year to year for the period of ten years. ’ ’
Pending the action in the court below a temporary restraining order was issued. A demurrer was filed to the petition, which was sustained, and plaintiff standing on his petition, judgment was entered in favor of defendant, also dissolving the temporary injunction, and this action is brought to this court by petition in error. The case not yet having been finally submitted, a motion was filed herein asking this court to issue an injunction pending the appeal, restraining said city to enter into any other contracts as above mentioned. This motion has been argued both by briefs as well as by oral argument, and is now up for disposition. The facts in the case are undisputed, and we must determine as to whether or not, applying the law to these facts, the motion herein made should be .granted. It is a general rule that a temporary restraining order should be issued only with caution, and if there is grave doubt as to whether it should be granted or not, it should be refused. (Richards v. Meissner, 158 Fed. 109; 22 Cyc. 756; Borough of Easton v. Ry. Co., 2 Pa. Co. 639; Doughty v. R. R. Co., 7 N. J. Eq. 629, 51 Am. Dec. 267.) This principle is applied not only in’cases where the doubt arises from the facts. The greater number of courts hold that where a doubt -exists as to the law of the case, the court should not grant the order. (22 Cyc. 756 and cases cited; Dying & Printing Works v. Calderine, (N. J. Eq.) 111 Atl. 517; Lumber Co. v. Mather, 53 Fla. 969, 43 So. 590; Buffalo v. Gas Co., 60 Misc. 550, 112 N. Y. S. 461; Eppstein v. Smith, 121 N. Y. S. 854; Paxton v. Falery, 200 Ill. App. 104; Beidenkopf v. Ins. Co., 160 Ia. 629, 142 N. W. 434; Easton v. R. Co., supra.) On the other hand, it is held that when
One of the determinative points here is as to whether or not the city granted an exclusive privilege. If it did not, then, it must be clear, it has the perfect right to grant such privileges to others, as well as to the plaintiff in error. The
That no exclusive right was contemplated by the contract is'Shown even more plainly, if that is possible, by Sections-, 6 and 7 of the ordinance above quoted, which clearly indicate the intention that any person, firm or .corporation complying with the provisions of the ordinance may have the right to haul garbage, refuse and rubbish; these sections in no manner show that an exclusive right to do so shall be granted to any one, and plaintiff, claiming only under a contract entered into pursuant to an ordinance, can claim no greater right than is. gran ted by the-letter, unless, at least, the contract contains a provision expressly, making the grant exclusive.
The fact that the grantee is damaged by reason of an. other like grant furnishes no criterion that the first grant is exclusive. In Turnpike Co. v. Montgomery Co., supra, citing Charles River Bridge Co. v. Warren Bridge, 11 Peters, 420, 9 L. Ed. 773, the court said:
“ ‘Where the grant is not, by its terms, exclusive, the legislature is not precluded from granting a similar franchise or authorizing the construction of a rival way or structure which may greatly impair or even totally destroy the value of the former grant, and such damage, is not a taking of the former franchise which entitles the owner to compensation.’ ”
In Piedmont Power Co. v. Graham, 253 U. S. 193, 64 Fed. 855; the court said:
*460 “The grant to the appellant is set out in full in the bill and plainly it is not one of exclusive rights in the streets. The attempt to derive an exclusive grant from the declaration, in the paragraph of the ordinance relating to the trimming of trees, that “said Town of Graham hereby warrants that it will, by its proper authorities, provide for the full, and free use of its streets, lanes,” etc., is fatuous and futile. Grants of rights and privileges by a state or municipality are strictly construed and whatever is not unequivocally granted is withheld, — nothing passes by implication. (Knoxville Water Co. v. Knoxville, 200 U. S. 22, 34; Blair v. Chicago, 201 U. S. 400, 471; Mitchell v. Dakota Central Telephone Co., 246 U. S. 396, 412.) The grant to appellant not being an exclusive one, -the contention that competition in business, likely to result from a similar grant to another company, would be a violation of appellant’s contract,, or a taking of its property in violation of the Constitution of the United States is so plainly frivolous that the motion to dismiss for want of jurisdiction, filed in each case, must be sustained. ’ ’
(See also Shorter v. Smith, 9 Ga. 517, 529; Clark v. Los Angeles, 160 Cal. 30, 116 Pac. 722.) Nor do we see any force in the argument that the fact that the contract is for two years, with privilege of renewal, shows that an exclusive right was intended. In Bartholomew v. City of Austin, 85 Fed. 359, 363, the court said:
“The contract on which this action is based is a grant and. privilege for a period of 20 years to the City Water company to supply water to the city of Austin, and the inhabitants thereof, with the right of extension under certain named contingencies. The grant is not in terms an exclusive one, and; so far as the language used is concerned, there is nothing to hinder the city of Austin from erecting other and competing works, nor from granting to others the right to use the streets, nor from contracting with others for 1he furnishing of more water, as the needs of the city may require. It is very well settled that, in contracts with states or municipalities conferring powers, grants, or priv*461 ileges on private corporations affecting the general rights and interests of the public, the grant or privilege must be clearly conferred, all implications, doubts and ambiguities being resolved against the grant or privilege claimed.’'
¥e think it clear that the contract in question is nothing more than a license, and that the city, under the ordinance in question, may grant as many as it deems expedient.
The motion for an injunction pending the appeal, is, therefore, denied, without prejudice to the rights of the parties to again present their arguments upon the final hearing of the case.
Motion denied.