Audenried v. Phil. & Reading Railroad Co.

• Decision Date: 23 May 1870
• Citation: 68 Pa. 370
• Parties: Audenried <I>versus</I> The Philadelphia and Reading Railroad Co.
• Court: Pennsylvania Supreme Court

Page 370

68 Pa. 370

Audenried versus The Philadelphia and Reading Railroad Co.

Supreme Court of Pennsylvania.

May 23, 1870.

At Harrisburg, May 23d 1870.

Before THOMPSON, C. J., AGNEW and SHARSWOOD, JJ.

Appeal from the decree at Nisi Prius: In Equity: No. 60, to January Term 1870.

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J. E. Gowen and Meredith, for appellants.

1. The delay in filing the bill is a sufficient answer to the prayer for a preliminary injunction: Hilliard on Injunctions, p. 24, s. 43; Tush v. Adams, 10 Cush. 253; Binney's Case, 2 Bland 99; Hodges on Railways 759; Illingworth v. Manchester and Leeds R. W. Co., 2 Railway Cases 187.

2. The sole object of a preliminary injunction is to preserve the subject of the controversy in the condition in which it was when the order was made: Farmers' Railroad Company v. Reno, &c., Co., 3 P. F. Smith 224; Mam. Vein C. C. Co.'s Appeal, 4 P. F. Smith 183.

3. The plaintiffs have no more right to the exclusive use of one of defendants' coal piers for storing and shipping their coal, than they have to the use of one of defendants' coal-yards or ordinary warehouses.

4. Even in the case of an ordinary railroad yard at a station or depot, the railroad company is not bound to admit every one who proposes to carry on the business of receiving and delivering freight there, much less to appropriate to him the exclusive use of yard-room or depot-room for the more convenient transaction of his business: Barker v. Midland Railway Co., 18 Com. Bench 46; Beadell v. Eastern Co.'s Railway Co., 2 Com. B. N. S. 509; Painter v. L. B. & S. R. W., 2 Com. Bench N. S. 702; Marriot's Case, 1 Com. Bench N. S. 498; s. c. 40 Eng. Law and Eq. 250.

5. Where the facilities of a railroad company are inadequate to accommodate all applicants, no one can insist upon a special and absolute right in himself, nor must the company refuse to accommodate any, because they cannot accommodate all; and in making a selection, the company has the right to exclude those who abused the facilities in question when they enjoyed them to its injury and discredit: Oxlade v. North Eastern Railway, 1 Com. Bench N. S. 454; 2 Redfield on Railways 69, s. 4; Id. p. 217; Angell on Carriers, s. 125, and note 1; s. 524 and following; Chitty on Carriers, p. *247; Riley v. Horne, 5 Bing. 217; Cole v. Godwin, 19 Wend. 261; Jencks v. Coleman, 2 Sumner 221; Palmer v. London and South Western Railway, 1 Law Reports C. P. 588; Ransome v. E. Counties Railway, 38 Eng. L. and Eq. 232; s. c. 1 C. B. N. S. 437; Nicholson v. Gt. Wn. Railway, 5 C. B. N. S. 366; 2 Redfield on Railways 218.

R. C. McMurtrie and G. W. Biddle, for appellees.—1. The railroad company as a common carrier cannot directly or indirectly use their franchises so as practically to exclude one man from an advantage which others are allowed to enjoy.

2. That the railway tracks running over and upon the wharves are thus a connecting link between the road and the water highway, and are subject to the same rules as the road.

3. The avowed motive is no justification. A carrier has a lien for his freight, but he has none for an old debt. If he cannot refuse to deliver on tender of freight due on that cargo, a fortiori can he not refuse to transport till the old debt is paid.

4. The road and the wharves, though property of the company, are qualified property. The public have an interest. The right to build a road and hold property was granted for the public service, and can only be used lawfully.

5. Where a corporation refuses the use of its property to a particular member of the public, they must justify for special reasons applicable to that person, or that occasion; and whether this was the motive, or whether their conduct was founded on sufficient reasons, is traversable: Dummer v. The Corp'n of Chippenham, 14 Ves. 252; Hill on Trustees 488; 1 Chitty Pl. 612 — 14.

6. Where they owe a duty they will be compelled to perform it; if they have entangled themselves with inconsistent engagements they will be prohibited from acting in such way as will disable them from performing the duty: Kerr on Inj. 230; Com. v. Pittsburg and Connellsville Railroad, 12 Harris 159; Sanford v. The Catawissa Railroad, Id. 380; Baptist Congregation v. Scamnel, 3 Grant 48; People v. Vanderbilt, 12 Smith N. Y. 287; Niagara v. Great Western Railroad, 39 Barbour 212; Baltimore v. Porter, 18 Maryland 284.

7. If the fact that they have made contracts which deprive them of capacity serves as an excuse against fulfilling an obligation, there will never be another case of compelling a railway to perform.

8. They say they have not sufficient wharves for all and hence they must discriminate. But if this discrimination is not for the benefit of the road, but a mere stalking-horse to cover and conceal the real motive, and that is an unlawful one, then the court will examine and redress.

9. And if they are compelled to select and discriminate, then they must do it by dividing — not by excluding.

The opinion of the court was delivered by SHARSWOOD, J.

There are two kinds of injunctions in courts of equity. The one is preliminary or interlocutory; the other final or perpetual. The object of the first in general is simply preventive — to maintain things in the condition in which they are at the time until the rights and equities of the parties can be considered and determined after a full examination and hearing. A preliminary injunction is never awarded, except when the rights or equity of the plaintiff are clear, at least supposing the facts of which he gives primâ facie evidence to be ultimately established.

All injunctions are generally processes of mere restraint; yet final injunctions may certainly go beyond this and command acts to be done or undone. They are then termed mandatory. They are often necessary to do complete justice. But the authorities, both in England and this country, are very clear that an interlocutory or preliminary injunction cannot be mandatory. In Gale v. Abbott, 8 Jurist, N. S. 987, Vice-Chancellor Kindersley said: "It was useless to come for what was called a mandatory injunction on an interlocutory application. Such an application was one of the rarest cases that occurred, for the court would not compel a man to do so serious a thing as to undo what he had done, except at the hearing." So in Child v. Douglass, Kay 578, Vice-Chancellor Sir W. Page Wood, now Lord Chancellor Hatherley, noticed the same distinction: "The plaintiff has a right to an injunction to restrain the building of the wall until further order; but I can make no order on an interlocutory application as to that part of the motion which relates to pulling down what has already been built."

It was said by Chancellor Bland, in Murdoch's Case, 2 Bland 469: "To restrain a defendant from making any abusive use of the property in question, or from disposing of it past recall, amounts to no more than the imposition of a temporary limitation upon the free exercise of his right, even if it should eventually appear to be entirely and rightfully his;" which is quite as far as any court can go in the first instance, and as preparatory to a fair beneficial hearing and final adjudication.

It was held accordingly in The Washington University v. Green, 1 Md. Ch. 97, that an injunction, unless issued after the final decree, when it becomes a judicial process, can only be used for the purpose of prevention and protection, and not for the purpose of commanding the defendant to undo anything which he had previously done. To the same effect are The New York Printing and Dyeing Establishment v. Fitch, 1 Paige 97; Bosley v. The Susquehanna Canal, 3 Bland 65; Attorney-General v. New Jersey Railroad Company, 2 H. W. Green's Ch. R. 136; Attorney-General v. City of Patterson, 1 Stockton 624. This distinction between a preliminary and final injunction is fully recognised in our own decisions.

Mr. Justice Strong states it in his opinion at Nisi Prius, in The Lehigh Coal and Navigation Co. v. The Lehigh Valley Railroad Co., January 1855, No. 59, April 5th 1855, in which he says: "A preliminary injunction ought never to be granted except in a clear case, and then only to prevent a substantial injury. Its purpose is to keep things in their existing condition until the case can be finally heard. As it is the strong arm of the law, it must be used only when necessity requires it. And a preliminary injunction can never be necessary when the thing sought to be restrained has been already done; for its province is not to undo but to prevent and preserve."

The same learned judge, delivering the opinion of the whole court in Farmers' Railroad Co. v. Reno, &c., Co., 3 P. F. Smith 224, said: "The sole object of such an order is to preserve the subject of the controversy in the condition in which it is when the order is made. It cannot be used to take property out of the possession of one party and put it into the possession of the other; that can be accomplished only by a final decree."

To the same point is Mammoth Vein Coal Company's Appeal, 4 P. F. Smith 183, in which the present Chief Justice said: "It ought not to be forgotten that a preliminary injunction is a restrictive or prohibitory process, designed to compel the party against whom it is granted to maintain his status merely until the matters in dispute shall by due process of the courts be determined." It is true that a mandatory order appears to have been made by Mr. Justice Lowrie, on a motion for a preliminary injunction before him in Allegheny county, in The Baptist Congregation v. Scannel, 3 Grant 48. It is enough to say of that case now, that the question does not appear to have been mooted or argued; at all events it is not adverted to in the opinion.

There are some few instances in England in which a mandatory order has been made on an interlocutory application; but they have been very extreme cases, and ought not to be followed...