City of Pasadena v. Superior Court of L.A. Cty.

This is an application for a writ of prohibí-. tion.

On March 25, 1908, the Sunset Telephone and Telegraph Company, in conjunction with the Pacific Telephone and Telegraph Company, brought an action-in the superior court of' Los Angeles County against the city of Pasadena, and certain of its officers, to enjoin and restrain said city from enforcing • one of its municipal ordinances relative to the use of streets. thereof by telegraph and telephone companies requiring franchises and fixing charges to be paid for such use, and forbidding the maintenance of certain telegraph and telephone lines, and declaring them nuisances, and to restrain and enjoin the city from destroying or removing (as it was alleged the city threatened and intended to do under said ordinance) the poles, wires, and appliances of the plaintiffs erected and used in the streets, alleys, and public places of said city.

A temporary restraining order was issued on the filing of the complaint and thereafter, on November 12, 1908, upon a hearing it was ordered that an injunction pendente lite issue. A trial of the cause being had, the court, on May 27, 1909, entered an order directing a judgment for the city for costs and “that the temporary injunction theretofore issued be forthwith dissolved,” and immediately thereafter the city, through its officers, without notice to plaintiffs, commenced the destruction of the companies’ telephone system in Pasadena, by cutting twelve of their cables, a total of thirteen hundred and fifty-

In this connection it may be said that, while an order that an injunction pendente lite issue was made November 12, 1908, no injunction was in fact issued.

It was assumed, however, by the attorneys in the stipulation referred to, that such an injunction had in fact been issued, and it was provided thereby that if the parties could agree as to the conditions under which the subject-matter might be maintained in statu quo pending the contemplated appeal, that “an injunction as heretofore issued shall issue and continue in force pending the final determination of the action,” and if unable to agree, the plaintiffs might apply to the court for the issuance of an injunction pending such final determination.

An agreement could not be reached and plaintiff moved the court to restore and continue in force such preliminary injunction pending the final determination of the cause which, on June 28,1909, the court granted, being of opinion, as declared in its order, that the status quo between the parties should be maintained pending the final determination of the action. This order was made by the court on certain conditions,—namely, that plaintiffs should within ten days perfect their appeal to the supreme court from the judgment in the action; that within that time they deposit with the clerk of the court for the benefit of the city $3578.12, being two per cent of the gross receipts of the companies from their telephone business at Pasadena between August 7, 1907 (that being the alleged date of the expiration of one of the franchises granted by the city to the Sunset company) and the twenty-ninth day of May, 1909; that each six months thereafter and pending final determination of the cause, they should make a similar deposit; that the plaintiffs deposit with the clerk an agreement duty executed by them, whereby they should agree that in the event of a final determination of the action in favor of the city, if the

On July 7, 1909, the defendant city moved the court to vacate said order of June 28, 1909, on several grounds, to wit, that no preliminary injunction had in fact ever been issued or been in effect in said action and, further, that the court was without power or authority to make said order continuing in force the injunction until the final determination of the action. This motion was denied, but it being brought to the attention of the court.for the first time on the hearing thereof (the judge trying the case not being the one' who had ordered the issuance of the injunction pendente lite), that notwithstanding the stipulation of the parties recited that such an injunction had theretofore issued in the action it had not in fact issued, the court made forthwith a further order. In this order the court recited the erroneous assumption, in making the order of June 28, 1909; that it was the intention of the court by said order to preserve intact the subject-matter of the action, free from molestation or injury by defendant city until the final determination of the action, and thereby corrected and amended the order of June 28, 1909, by enjoining the defendant city, in ex

The main question in this controversy is, whether a superior court in an action brought to obtain a perpetual injunction can by an order made concurrently with the granting of a final judgment in the action denying the injunction, continue in force a preliminary injunction, or make an original injunctive order, restraining the successful party, pending an appeal by his adversary against whom the judgment denying a right to any injunction whatever runs.

While the petitioner here makes the point that the court had no power to make the order of June 28th continuing the injunction pending the appeal because there had, in fact, never been any preliminary injunction issued in the first instance upon which the order could operate, and likewise had no authority to make the order of July 7th amending the order of the former date, we attach no importance to these claims. If the superior court had the right to make any order concurrently with the final judgment continuing a preliminary injunction in force pending an appeal from the judgment, as counsel on both sides in their stipulation presented to the court conceded that an injunction pendente lite had issued, and was in force at the time the application to continue it was presented, and as the order of June 28th was made on that basis, neither party should be permitted to question it, or to question the validity of the order of July 7th made when it was first disclosed to the court that, in fact, while ordered, no preliminary injunction had issued, and which later order amended the order of June 28th so as in terms to enjoin the plaintiff in the action pending the appeal. If the court had authority 'to make an order concurrently with the judgment in the case, continuing in force or granting an injunction pending an appeal

This point disposed of brings us back to the main question.

The position of the petitioner is, that under the law of this state a superior court is without jurisdiction to issue or continue in force an injunction pending an appeal, whether the order doing so is made prior to, or concurrently with the judgment, or is embraced therein.

The logical consideration of this question requires inquiry as to whether, in this state, a superior court in an action brought to obtain an injunction, may in its judgment denying the right to such injunction provide nevertheless for continuing in force pending a final determination of the action an injunction preliminarily issued; because, if it can, we think that while the order here in question enforcing or continuing the injunction cannot strictly be said to be part of the judgment, still it must be considered as intended to operate concurrently therewith, as the court declared, and if it could stand if embodied in the judgment, has equal force as an order made independent of but concurrent therewith.

We think, on an examination of the authorities, that it is hardly open to serious question but that the superior court has the power in its final judgment to continue in force a preliminary injunction so as to maintain the status quo of the subject-matter of litigation pending an appeal, notwithstanding that the right to a perpetual injunction, which ivas the

By section 5 of article VI of the constitution of this state, the superior court is vested with “original jurisdiction in all cases in equity.” A similar constitutional provision as to the jurisdiction of the district courts (predecessors to the present superior courts) is found in the old constitution of 1849 as amended in 1862 (art. VI, sec. 6), and as to such a provision it is said in People v. Davidson, 30 Cal. 379 , 390, and likewise in Rosenberg v. Frank, 58 Cal. 387 , 400, that “the equity jurisdiction with which the district courts are invested under the constitution is that administered in the high courts of chancery in England.” To this same effect is Bacon v. Bacon, 150 Cal. 477 , [ 89 Pac. 317 ].

It being determined, therefore, that the superior court has equity powers equal to those exercised by the chancery courts in England, it only remains to ascertain whether such courts possessed the power to maintain the status quo of the subject of litigation by continuing an injunction pending an appeal.

While this is the first time that this exact question has been presented to this court for determination, we have no doubt that the power existed in the chancery courts in England, and that under the authorities from our sister states it is a power with which courts of general equity jurisdiction in this country are invested, certainly at least in the absence of any limitation by constitutional provision or legislative enactment.

In some of the authorities, to be cited or quoted from, some discussion is had as to the power of the appellate court, on application therefor, to grant an injunction pending the appeal, as well as the right of the lower court under its original equitable power to do so. We are not now concerned with , what may be the power of the appellate court in that respect, but are dealing solely with the right of the trial court in an equitable action to do so in its final decree, and limit ourselves to a consideration of this sole proposition.

As to the power of the English courts of chancery to preserve the subject-matter of litigation in slatu quo, pending the final determination of a controversy, there can be no question. The existence of this power in such courts, and their right to exercise it in an equity suit, is thus generally de

In Hovey v. McDonald, 109 U. S. 150 -160, [ 3 Sup. Ct. 136 ], this power in the English courts of chancery is recognized, where the court says: “In England, until the year 1772, an appeal from a decree or order in chancery suspended all proceedings; but since that time a contrary rule has prevailed there. The-subject was reviewed by the house of lords in 1807, and an order was made establishing the right of the chancellor to determine whether and how far an appeal should be suspensive of proceedings, subject to the order of the house on the same subject. (See Palmer’s Pract. H. L. 9, 10; 15 Ves. 184; [Hart v. Mayor of Albany], 3 Paige, 383-385.)”

And in that case the court, referring to the slaughterhouse cases ( 10 Wall. 273 ), and still considering the power of the chancery courts of England to maintain by their order the status quo of the subject-matter of litigation pending appeal, says as to what was, and was not, decided by those cases: “It was decided that neither a decree for an injunction nor a decree dissolving an injunction was suspended in its effect by the writ of error, though all the requirements for a supersedeas were complied with. It was not decided that the court below had no power, if the purposes of justice required it, to order a continuance of the status quo until a decision should be made by the appellate court, or until that court should order the contrary. This power undoubtedly exists, and should!

In Polimi v. Gray, L. R. 12 Chan. Div. 438, it is said by the master of the rolls: “It appears to me on principle that the court ought to possess that jurisdiction, because the principle which underlies all orders for the preservation of property ¡pending litigation is this, that the successful party is to reap the fruit of that litigation and not obtain merely a barren success. That principle, as it appears to me, applies as much to the court of the first instance before the first trial, and to the court of appeals before the second trial, as to the court of last instance before the hearing of the final appeal.”

To the same effect are Huguenin v. Baseley, 15 Ves. Jr. 179; Galloway v. Mayor etc., 3 De G. J. & S. 59; 2 Daniels Ch. Prac., 6th Am. ed., p. 1451.

In our sister states, where the question has arisen as to the power of courts of general equity jurisdiction to make orders maintaining the status quo of the subject-matter till final determination on appeal, the existence of such power has been confirmed by the appellate tribunals. (Hart v. Mayor etc. of Albany, 3 Paige Ch. 381 ; Messonnier v. Kauman, 3 John Ch. 65; Desbro v. Desbro, 37 How. Pr. 147 ; Jewett v. Dringer, 29 N. J. Eq. 199 ; State ex rel. v. Dearing, 180 Mo. 53 , [ 79 S. W. 454 ].)

We refer particularly to the first and last cases cited, as the other cases mentioned equally sustain the existence of the power in a court of general equity jurisdiction to continue in force such injunction until the final determination of the action.

In Hart v. Mayor etc. of Albany, 3 Paige Ch. 381 , plaintiff sued to enjoin the officers of the municipality from removing an ark or floating storehouse from the Albany basin where plaintiff had moored it, contrary to an ordinance of the municipality. On filing his complaint he obtained a preliminary injunction which, on motion after answer, the court dissolved. Plaintiff appealed, but notwithstanding this, defendants were proceeding to remove the ark. Application was made to the chancellor for an order restraining them from doing so pending the appeal, and the chancellor after

The order was granted on terms.

In the State ex rel. v. Dearing, 180 Mo. 53 , [ 79 S. W. 454 ], the proceeding in the supreme court was in prohibition, as here, and involved the question as to the power of the St. Louis City circuit court to continue in force in its final judgment denying plaintiffs an injunction and pending the appeal therefrom, a temporary injunction previously issued. In sustaining the power of the trial court to make the order, the court said: “The precise question presented by that contention is: Has a circuit court in this state in a suit in equity, in

After referring to and quoting from several authorities: sustaining the powér in the English court of chancery, the. court also cited and quoted from American authorities equally sustaining the same power in courts of original equitable jurisdiction in this country, and, as a conclusion from their consideration, said: “So in this country, the jurisdiction of courts-of equity of the first instance to make all proper orders for the-preservation of the subject-matter of the controversy in statu quo until the final determination thereof in the court of last resort has been uniformly maintained by the highest authority. ... In the light of the authorities cited, to which many others might be added, we have no hesitation in holding, in-conformity to the rulings of the highest authorities in England and America on the subject, that the St. Louis City circuit court, in the exercise of its jurisdiction as a court of equity, had full power, in its final judgment or decree in the-case stated, to continue in force the interlocutory injunction granted at the beginning of the cause pending the appeal therefrom to the supreme court.”

On this same subject it is said in 22 Cyc., p. 974: “But a preliminary injunction may be continued pending an appeal from a decree dismissing complainant’s bill ... in case such continuance is necessary, to protect the complainant and to maintain the subject-matter in such condition that the-complainant will not be deprived of relief in case of his success on the appeal but not otherwise.”

While it is therefore quite clear from these authorities that, the power existed in the courts of chancery under the English system to maintain the status quo of the subject of the litigation pending appeal, and that courts of general equity jurisdiction in this country are held to have like power, and that, as to the superior courts of this state it has been directly decided that they possess the same equity jurisdiction as was-, possessed by the English chancery courts, it is nevertheless, contended by counsel for petitioner that such general equity jurisdiction is subject to legislative control as far as provisional remedies are concerned, as such remedies are mere incidents to the jurisdiction of the courts, and are no part of its essential jurisdiction.

On this assumption, and in connection with it, it is urged that under the code provisions of this state the superior courts, notwithstanding they are courts of general equity jurisdiction, are without power to issue injunctions, either permanent or-provisional, except in such cases as are provided by the code, and which it is insisted do not embrace power to continue in force pending an appeal, a temporary injunction theretofore-issued.

Conceding, without deciding, all that petitioner contends for, still, if the legislature has not by some provision curtailed the power which, as courts of general equity jurisdiction invested with all the power exercised by courts of chancery in England, our superior courts possess, this power remains and may be exercised. If it has been shorn of power in this respect by legislation, it must be found in the code provisions as to the matter of injunctions, and a careful examination of these provisions, both in the Civil Code and Code of Civil Proc

It is provided by section 3420 of the Civil Code that “preventive relief is granted by injunction, provisional or final.” And “provisional injunctions are regulated by the Code of Civil Procedure.” (Civ. Code, sec. 3421.)

Section 3422 following, provides for cases in which a final injunction may be granted, and section 525 of the Code of Civil Procedure provides the cases in which the court may grant, and in which it cannot grant injunctions. None of these provisions refer in any manner to the right of the court to grant a provisional injunction, in a final judgment, maintaining in force the status quo of the litigation pending an appeal. But from a consideration of these code provisions it is insisted by petitioner that they embody complete legislation on the subject of injunctions—final and provisional—and that the power of the court to grant injunctions in any other ease, or under any other circumstances than those mentioned in the sections of the Code of Civil Procedure is denied. This contention of petitioner is based mainly on the terms of sections 3274 and 3421 of the Civil Code; the one declaring that preventive relief can only be granted in cases specified in “this part (part I) of the Civil Code;” the other declaring that “Provisional injunctions are regulated by the Code of Civil Procedure.” But these sections, and the sections of the Code of Civil Procedure heretofore referred to, are not all the legislation on injunctions. Section 3366 of the Civil Code provides that specific or “preventive relief may be given as provided by the laws of this state” and section 3368 provides that “preventive relief is given by prohibiting a party from doing that which ought not to be done.” Section 3274 is found in that part arid title of the code dealing with “Belief in General.” Sections 3366 and 3368 are found in the title dealing with “Specific and Preventive Belief” in particular, and must be taken as a particular specification of cases under section 3274 when the court is authorized to grant preventive relief in addition to other cases mentioned in the Civil Code provision. ■

While the codes declare the law of the state (Civ. Code, sec. 4; Code Civ. Proc., sec. 4), they do not declare all of it. The constitutional provisions also constitute the law of the state,

Not only do we think that there is nothing in the codes which attempts to curtail this power, but under section 3368 of the Civil Code which provides that “preventive relief is given by prohibiting a party from doing that which ought not to be done,” the power of the court to make the order in question remains undisturbed.

The precise matter in issue in the action below was the right of the plaintiffs in the case to maintain their poles, wires, and general telephone systems in the streets of Pasadena, where, with the permission of the municipality, they have been maintained for upwards of twenty years. The city was threatening to cut down these poles and destroy the systems and suit was brought to enjoin them, and a preliminary injunction was issued. Judgment went against plaintiffs and from that judgment they had a right to appeal, and in good faith were prosecuting it, when the city actually commenced the destruction of the telephone systems. Common fairness and a sense of justice readily suggests that while plaintiffs were in good faith prosecuting their appeals, they should be in some manner protected in having the subject-matter of the litigation preserved intact until the appellate court could settle the controversy. If the city could be permitted while the appeals were pending, to destroy the property of the plaintiffs, a reversal of the judgment would be of little conse

While it is true that we are here dealing with the matter off mere abstract power in the superior court, it may be said that" while we are satisfied such power exists, its exercise is a matter-discretionary with the trial court and to be exercised only under such conditions imposed upon the party in whose favor-the injunction order pending appeal is given, as will fully and fairly protect the adverse party in the fruits or benefits of the ■ judgment in his favor. It would appear that in granting the ■ injunction here in question the trial court endeavored to fully protect the municipality by the conditions imposed on the-plaintiffs in granting the injunction and which they accepted. But with that matter we have no present concern. As we said, the question on this application for a writ of prohibition is. simply a question of the abstract power, or jurisdiction of the-court, to grant the injunction pending appeal which, as we-have held, the court clearly has. Did we deem the possession-of this power in the court doubtful by virtue of the code provisions to which petitioner refers, we would nevertheless be-constrained to hold that the power existed as necessary to the-

The petition for a writ is denied.

Sloss, J., Angellotti, J., Shaw, J., Henshaw, J., and Melvin, J., concurred.