43 N.J. Eq. 605 | N.J. | 1887
Lead Opinion
This court concurs with the vice-chancellor, that the facts exhibited in the bill of complaint will not justify the allowance, in limine, of a mandatory injunction.
The case will be found fully stated in the opinion of the vice-chancellor, upon inspection of which it will appear, in the estimation of this court, that, at the present stage of the procedure, no such pressing necessity is shown to exist, as is requisite by a rule of practice that is perfectly established, as a basis for an application for the writ that is here sought. The appellant, by its own showing, is not absolutely excluded from these stock-yards; it is only prevented from delivering its cattle there in a certain mode. At an increased expense, it can obtain access to the yards as it formerly did, and this increased expense would plainly be recoverable from the respondent, in the event of a decision against it on the general merits of the controversy. There does not seem to have been any difficulty in putting the proceeding at once on final hearing. Under such circumstances, we cannot depart from the settled course of practice.
Let the decree be affirmed.
Dissenting Opinion
(dissenting).
■ The refusal of the.preliminary injunction prayed for was put by the court below on two grounds: first, that the right claimed by appellant had never been settled at law ; and second, that an injunction of a mandatory character, such as was asked for, ought not to issue before final hearing.
The majority of this court agree to the affirmance of the order refusing the injunction upon the ground that, under the circumstances disclosed in the pleadings, a mandatory injunction ought not to be allowed preliminarily.
I will briefly state the reasons why I am compelled to dissent from this conclusion:
When the injunction was refused below, the answer of respondent had been filed. From a perusal of the bill and answer, it is
My associates here do not, therefore, base their affirmance upon the ground that such an injunction ought never to issue before final hearing, but rather on the special ground that it appears that appellant, if correct in respect to the right claimed, can ■obtain complete redress by action at law and by recovery of damages. This is said to be manifest from the facts charged in the bill, and admitted in the answer, that appellant formerly delivered cattle to respondent by means of connecting railroads; that appellant had refused to pay the increased charges demanded by those railroads, and been thus debarred from delivering cattle by rail to respondent. The inference my associates draw therefrom is that, by paying the increased price demanded, appellant can still forward cattle to respondent, and that respondent will then receive them, and, therefore, appellant, if driven to employ those railroads by respondent’s refusal to receive its cattle otherwise, would be entitled to recover the additional price paid, which would fully compensate it.
But this obviously ignores the position assumed by respondent in the answer. The admitted refusal to receive cattle from appellant is therein justified — not on the ground that the cattle were not sent by rail, but on the ground that the cattle tendered by appellant were only part of those transported over its road. The claim of respondent (by the answer) is, that it is not bound to receive, and will not receive, any cattle from appellant, unless it receives all that are carried by it — in other words, it refuses to ■do any business with appellant, unless the latter can persuade or ■compel those who send cattle over its road to consign them to respondent’s yard, and not elsewhere.
This, and not the transportation by the connecting roads, is the real ground on which the respondent stands and justifies its ■conduct. Such a justification, if good at all, will be good with respect to any cattle, whether delivered by rail or water. The answer avows, over and over again, the intent to reject cattle delivered by appellant, unless the latter will agree to deliver all its ■cattle to respondent.
It is perfectly clear that respondent would not be injured by the injunction in the least degree. It would receive payment for the cattle delivered under it at precisely the’same rates which are paid by others for the same services. The only effect upon respondent would be to compel it to relax the pressure it has put on appellant, whereby it seeks to compel appellant to contract to give respondent a monopoly of the cattle business over its road, a design which, considering that appellant is a common carrier, bound to transport and deliver cattle to whomsoever the shipper directs, seems not adapted to commend respondent to the favorable consideration of any court haviiig regard to public'policy and the legal rules affecting common carriers.
I think it equally obvious that the refusal of respondent will work irreparable damage to appellant. It must compel shippers, who desire to consign cattle to respondent’s yards, to seek some other route. Traffic will be driven away from appellant’s road, and cannot at once be regained, even if, on final hearing, respondent shall be adjudged to be in the wrong. It is a matter of common observation how traffic runs in accustomed lines, and, when diverted to new routes, can rarely, if ever, be regained. It is, moreover, obvious that, for this diversion, no 'adequate compensation could be awarded, for the amount of the injury could not be ascertained with any degree of certainty.
There remain, therefore, only the questions, whether the right claimed (and to protect which the injunction is sought) is clear, and whether the claimant is entitled to equitable relief. If these questions are to be solved in favor of appellant, I think the injunction, though mandatory, ought to have issued.
But these questions have not been considered by my associates. I do not deem it necessary, therefore, to express any opinion upon them. My intention has been only to express the grounds of my
Dissenting Opinion
(dissenting).
A preliminary injunction was denied to the complainants below, the appellants here, on the ground that a court of equity could grant no relief in this case, until the rights claimed by the •complainants had been measured and determined by a legal tribunal. This, as I understand, with an intimation further to the effect that such rights might never be ascertained or settled, is just the position in which the law in New Jersey in this respect will become established, if that decision be affirmed here. For •one, I desire to place on record a decided dissent against the application of such a principle of law, or justice, or equity, to the circumstances disclosed in this matter.
The respondents cannot fail to accept, with eminent satisfaction, an adjudication so favorable to the business in which they are engaged. They are a corporation created by special legislation, vested originally with an extensive grant of powers and privileges, supplemented in a short time by authority to establish and enforce rules and ordinances, similar in police respects, to that conferred upon a municipal government. It is apparent, from the faóts stated in the case, that this stock-yard company are the proprietors of a business enterprise, large, increasing and remunerative, the ramifications of which, by means of connections they can form with influential and wealthy common carrier •corporations, reach far beyond the river shore upon which their works are located. It is evident, likewise, that these proprietors can, and, if possible, intend to, control the particular interest resulting from the exercise of their chartered rights, and, equally .so, that common carriers, the lines and branches of whose system •extend almost from lake to gulf, and eastern to the western ocean tide, must submit to whatever terms they may see fit to impose. It is conceded that the nature of the business of this company is •one in which the public have a large concern.
This, then, being so, and the respondents being vested by their charter with a combination of powers that are not com
This single consideration, to say nothing of the equities admitted in the answer, will determine my action in the premises. The business of the stock-yard is defined by the charter as being-general in nature, and for the accommodation of -the public. No subtle or shadowy distinctions of abstract right or remedies can avoid or destroy the plain meaning and force of those words.' The respondents accepted the terms, and agreed to the conditions imposed. Now, when they come forward and claim that they are not bound to do and perform what they undertook, as prescribed in their charter, they should not be allowed to escape responsibility, either by ingenious refinements of law, or by reducing the rights and interest of the general public to a mere calcu
For affirmance — The Chief-Justice, Dixon, Reed, Scudder, Van Syckel, Brown, Clement, McGregor, Whitaker — 9.
For reversal — Depue, Magie, Paterson — 3.