Fisk v. Leith

• Citation: 299 P. 1013,137 Or. 459
• Parties: FISK v. LEITH ET AL. [a1]
• Decision Date: 09 June 1931
• Court: Oregon Supreme Court

299 P. 1013

137 Or. 459

FISK v. LEITH ET AL. ^[a1]

Supreme Court of Oregon

June 9, 1931

Department 2.

Appeal from Circuit Court, Curry County; J. T. Brand, Judge.

Suit by B. E. Fisk, doing business under the assumed name and style of Gold Beach Electric Company against J. C. Leith, doing business under the assumed name and style of Gold Beach Light & Power Company, and another. From a decree for plaintiff defendants appeal.

Reversed.

H. A. Slack, of Coquille (J. C. Johnson, of Gold Beach, and Bennett Swanton, of Marshfield, on the brief), for appellants.

Wm. P Ellis, of Salem (Collier H. Buffington, of Gold Beach, on the brief), for respondent.

BELT J.

This is an appeal from a decree enjoining the defendant J. C. Leith and the Gold Beach Utilities, Inc., a corporation, from constructing any "line, plant, or system" within the territory of Gold Beach and vicinity for the purpose of the manufacture or transmission of electrical energy and power without having first obtained from the Public Service Commission a certificate of public convenience and necessity. The plaintiff, Gold Beach Electric Company contends that it was the pioneer public utility company serving the people of the above territory with electric energy under an exclusive right or franchise, and that the defendants, in violation of the law and without any certificate of public convenience and necessity, invaded such territory for the purpose of furnishing the people thereof with light and power. The trial court, in addition to the order of injunction, awarded plaintiff damages in the sum of $2,000, caused by the alleged wrongful acts of the defendants.

At the time this suit was commenced, viz., on April 30, 1929, section 61-301, Oregon Code 1930, provided that: "No public utility * * * shall henceforth begin the construction of a line, plant or system, or any part thereof, in or into any territory already served by a similar utility without having first obtained from the public service commission of Oregon * * * a certificate that the present or future public convenience and necessity require, or will require such construction. * * *" Defendants made application to the Public Service Commission for such certificate, but, after hearing of all parties interested, it was denied.

Pending appeal to this court, the above statute requiring a certificate of public convenience and necessity was repealed by two legislative acts, without any saving clauses (chapters 59 and 103, G. L. O. 1931). Each of these acts carried an emergency clause and went into effect on February 28, 1931, and February 23, 1931, respectively.

In view of the repeal of the statute requiring the certificate, it is clear that no injunctive relief can be granted, although it may have been proper to do so at the time the decision was rendered in the circuit court. No person has a vested right in a remedy. It would be an absurd thing to enjoin defendants from engaging in the business of furnishing light and power until a certificate of public convenience and necessity had been obtained from the Public Service Commission when, in fact, such commission has no longer authority to issue the certificate. Whether plaintiff is entitled to equitable relief must be determined by the law existing at time of final adjudication and not as of the date when the suit was commenced.

The more difficult question is whether equity should retain jurisdiction to assess damages for the wrongful acts of defendants while the law was in force and effect. It is argued that, since the basis for equitable jurisdiction has been taken away by virtue of repeal of the statute, it should no longer concern itself with the assessment of damages which is only incidental to the main relief sought. In Drainage Dist. No. 7 v. Bernards, 89 Or. 531, 174 P. 1167, 1175, it is said: "The general rule is that the repeal of a statute without any reservation takes away all remedies given by the repealed statute and defeats all actions pending under it at the time of its repeal"--citing State v. Ju Nun, 53 Or. 1, 97 P. 96, 98 P. 513. This rule, however, has its exceptions and does not apply to vested rights. Rights which are inchoate and are incident to the statute are lost unless saved by express words in the repealing clause. There is strong language in the texts and encyclopedias supporting the theory of defendants that the statute repealed precludes any recovery by plaintiff, but, when the facts in the cases cited in support thereof are closely examined, it will be found that statutory remedies, procedure, or penalties were involved. In the leading case of Vance v. Rankin, 194 Ill. 625, 62 N.E. 807, 88 Am. St. Rep. 173, relied upon by the defendants, the statute repealed deprived petitioners therein of the especial remedy to compel the performance of certain acts by mandamus. Neither are we concerned with the repeal of a statute expressly creating a cause of action as in Robinson v. McHugh, 158 Wash. 157, 291 P. 330, and Wall v. Chesapeake & O. R. R. Co., 290 Ill. 227, 125 N.E. 20.

In the instant case the statute repealed conferred upon the plaintiff a right as distinguished from a remedy. It protected the plaintiff...