City Sanitation Company v. City of Casper

• Decision Date: 18 April 1922
• Docket Number: 1086
• Citation: 206 P. 149,28 Wyo. 452
• Parties: CITY SANITATION COMPANY v. CITY OF CASPER
• Court: Wyoming Supreme Court

206 P. 149

28 Wyo. 452

CITY SANITATION COMPANY v. CITY OF CASPER

No. 1086

Supreme Court of Wyoming

April 18, 1922

ERROR to the District Court, Natrona County, CYRUS O. BROWN, Judge.

Action by the City Sanitation Company against the City of Casper to establish its exclusive right to remove garbage under a certain contract. From a judgment in favor of defendant plaintiff brings error and moves for an injunction pending appeal.

Motion denied.

John B Barnes, Jr., and E. H. Foster, for plaintiff in error.

Injunction is a proper and only remedy and should be granted pendente lite pending appeal. (Coxe v. Huntsville Co., 129 Ala. 496; Hicks v. Michael, 15 Cal. 107; Will v Fire Commissioners, 46 La. Ann. 731; Harriman v Sanitation Co., 132 F. 464; Newton v. Lebis, 79 F. 715; Tel. Co. v. Pa. R. R. Co., 120 F. 981; Sanitary Reduction Works of San Francisco v. California Production Co., 94 F. 693.) Plaintiff is entitled to an injunction upon the facts in its petition. (Smiley v. Alex McDonald, 27 L. R. A. 540; State v. Lowery, 49 N.J.L. 391; Walker v. Jameson, 28 L. R. A. 679; Com. v. Stodder, 2 Cush. 562; People v. Gordon, 81 Mich. 306; River Rend. Co. v. Behr, 7 Mo.App. 345.) To enjoin the city from making a contract is not enjoining a legislative act. (Alpars v. San Francisco City and County, 32 F. 503; Fertilizer Co. v. Lambert, 48 F. 459.) If the injury to an applicant will be greater if an injunction is denied than will result to his opponent for granting it, the court will afford relief asked for. (Kryptok Co. v. Len Co., 190 F. 767.) The remedy at law must be adequate and speedy. (Boyce v. Grundy, 3 Pet. 210; Watson v. Sutherland, 5 Wall 74; Romono v. Light Co., 182 Ala. 335; 62 So. 677.) A cause of action being stated in the petition, it is proper to grant the relief asked for. (Western Union Tel. Co. v. R. R. Co., 120 F. 981.) Each case must be decided on its own facts. (41 A. S. R. 771 in note, 32 Am. Dec. 411.)

R. M. Boeke, for defendant in error.

The temporary restraining order was granted by the court commissioner without a hearing and later dissolved upon the sustaining of a demurrer filed to the petition. From an order sustaining demurrer and dissolving the restraining order plaintiff prosecutes error. The affidavits of E. A. Thomas and J. B. Boyer, relate to immaterial facts. Plaintiffs contract is in the nature of a license. The granting of a contract by a city is a discretionary power that will not be interfered with by the court. (Dillon on Municipal Corporations, Section 242.) The courts will not enjoin a legislative body. (Alpers v. San Francisco, 32 F. 503; New Orleans Company v. New Orleans, 164 U.S. 471.) The courts will not restrain the enactment of an ordinance by a municipality if the object of the ordinance is within the discretion of the city council.

BLUME, Justice. POTTER, Ch. J., and KIMBALL, J., concur.

OPINION

BLUME, Justice.

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 about to, or threatens to enter, or has entered into a contract with others granting them the same privilege possessed by the plaintiff in error, and asking that the said city be restrained from entering into such contracts. The petition alleges that the said city passed and adopted an ordinance, No. 225-A, which regulates the collection and removal of rubbish, miscellaneous refuse, garbage, etc. The ordinance is set out in full. Sections 6 and 7 of the said ordinance, which sections have a particular bearing on this case, are as follows:

"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 conditions 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 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 F. 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; Dyeing & Printing Works v. Calderini, (N.J. Eq.) 91 N.J. Eq. 378, 111 A. 517; Lumber Co. v. Mather, 53 Fla. 969, 43 So. 590; Buffalo v. Gas Co., 60 Misc. 550, 112 N.Y.S. 468; Epstein v. Smith, 121 N.Y.S. 854; Paxton v. Fabry, 200 Ill.App. 104; Beidenkopf v. Ins. Co., 160 Iowa 629, 142 N.W. 434; Easton v. R. Co., supra.) On the other hand, it is held that when the questions of law are grave, novel and difficult, which the court must decide before rendering a final decree, it, in its discretion, may grant an injunction pendente lite to preserve the existing status until the case is finally determined. (King Lumber Co. v. Benton, 186 F. 458, 108 C. C. A. 436; City of Newton v. Levis, 79 F. 715, 25 C. C. A. 161; Massie v. Buck, 128 F. 27, 62 C. C. A. 535; Harriman v. Northern Securities Co., 132 F. 464.) It would seem to follow as a corollary to the foregoing principles that the court should refuse to grant a temporary restraining order when it is clear that the applicant therefor cannot, as a matter of law, ultimately succeed. It has in fact been held that the court has the right, and it is sometimes its duty to determine, on a motion for an injunction pendente lite, whether such applicant has or has not, as a matter of law, such right to recover ultimately, even though such determination virtually disposes of the whole case. (Minneapolis Electric Co. v. City of Minneapolis, 194 F. 215.) And when the points of law involved have been fully argued, then the court clearly has the right to do so. (Johnson v. Belmar, 58 N.J. Eq. 354, 44 A. 166. See also Crawford v. Gilchrist, 64 Fla. 41, 59 So. 963.) In the case at bar the sole object of the case is to obtain an injunction. The only question involved is as to whether or not the petition states facts sufficient to constitute a cause of action, and we cannot see how it is possible for us, in deciding as to whether or not an injunction pending the appeal should be granted, to avoid indicating our view as to whether or not under the law the plaintiff is ultimately entitled to recover, unless we should say that the points of law involved are grave and difficult, which we do not believe to be true. In fact, the motion has been argued by counsel on both sides, and cases cited, in the expectation that the decision on the motion practically disposes of the whole case.

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 contract being pleaded in full, the allegation in the petition that it grants an exclusive right is not...