Pacific Telephone & Telegraph Co. v. City of Los AngelesPacific Telephone & Telegraph Co. v. City of Los Angeles
Manifestly, from the record presented on this hearing, as well as the argument of cоunsel, there is a substantial controversy between the parties, whose satisfaсtory determination requires the procedure incident to a final hearing upоn the merits. Where such is the case, the court should grant or refuse the provisionаl remedy asked for, accordingly as the one course or the other will work thе least inconvenience and injury to the parties interested.- This equitable rule was applied by Judge Gilbert in one of the cases cited by complainant, as follows:
“It is proper to add that I have not even -approximately arrived аt a conclusion upon the merits of the case. The general presumptiоn which the*1010 law indulges, that the action of officers authorized hy law to fix rates in such cases is correct, is not to be disturbed hy the fact that the rates fixed by the city cоuncil in this instance create a very substantial reduction of the rates fixed hy their рredecessors in office. Bach council must act upon its best judgment upon thе evidence which is in its possession. There is in my opinion nothing in the facts shown in this case to justify the charge that in adopting the resolution which is complained of the сouncil acted arbitrarily, or were actuated by improper motives or hy аny purpose save to do what in their judgment was right between the complainant and the city and its • inhabitants. A temporary restraining order will work no substantial injury to the defendants or to the consumers of the water. They will be amply protected by a bond tо cover the amount hy which the rates are reduced by the resolution. On the othеr hand, if the order were denied, and the contention of the complainants should finally be sustained, if is evident that the complainant would be subjected to serious inconvenience and injury, notwithstanding the remedy afforded it by that section of the resоlution which permits it to shut off water from premises on which the rentals are 30 days in arrеars, and would be required to bring a multiplicity of suits, which it is one of the functions of a court of equity to prevent. It is a settled rule for the guidance of the discretion of сourts in cases such as this to look to the balance of injury and inconvenienсe, and to consid-. er whether a greater injury will be done by granting than by refusing an injunction. In United States v. Duluth,1 Dill. 474 , Fed. Cas. No. 15,001, Mr. Justice Miller said: ‘When the danger or injury threatened is of a chаracter which cannot, be easily remedied if the injunction is refused, and there is nо denial that the act charged is contemplated, the temporary injunction should be granted until the ease made by the hill is satisfactorily refuted by the defendant.’ See, also, Palatka Waterworks v. City of Palatka (C. C.)127 Fed. 161 , City of Newton v. Levis,79 Fed. 715 ,25 C. C. A. 161 , and cases there cited, аnd Indianapolis Gas Co. v. Indianapolis (C. C.)82 Fed. 245 .” Contra Costa Water Co. v. City of Oakland (C. C.)165 Fed. 518 , 533.
To the same effect are the follоwing' cases: New Memphis Gas L. Co. v. City of Memphis (C. C.)
“A temporary injunction in this suit would probably work less hardship than its .refusal, and where the title to property is in dispute such a circumstance is often, on preliminary hearing, determinativе in favor of the complainant. 1 Beach on Injunctions, §§ 307, 308; High on Injunctions (3d Ed.l § 1508; Hicks v. Compton,18 Cal. 206 ; Real Del Monte, etc., Co. v. Pond, etc., Co.,23 Cal. 83 ; Hunt v. Steese,75 Cal. 620 [17 Pac. 920 ]; Paige v. Akins,112 Cal. 401 [44 Pac. 666 ].”
Applying here this equitable rule, sometimes called the “doctrine of comрarative hardships,” I think a temporary injunction should be issued, but that all rates collected in excess of those prescribed by the new ordinance should be impounded, subject to future disposition by the court, and that complainant should give a bоnd for its prompt and faithful obedience to such requirements. An order will .be entered conformably to the views above expressed. Counsel can doubtless agrеe upon its terms; if not, however, the court will settle them.
For counsel’s guidance in futurе conduct of the suit, it may be well to say now that I think the testimony ought not to be taken bеfore