Sanitary Reduction Works of San Francisco v. California Reduction Co.

• Decision Date: 25 May 1899
• Docket Number: 12,714.
• Citation: 94 F. 693
• Parties: SANITARY REDUCTION WORKS of SAN FRANCISCO v. CALIFORNIA REDUCTION CO. et al.
• Court: U.S. District Court — Northern District of California

94 F. 693

SANITARY REDUCTION WORKS of SAN FRANCISCO v. CALIFORNIA REDUCTION CO. et al.

No. 12,714.

United States Circuit Court, N.D. California.

May 25, 1899

William M. Pierson and Charles L. Tilden, for complainant.

Alfred L. Black, for respondent California Reduction Co.

Garret W. McEnerney, R. T. Harding, and Mich. Mullaney, for other respondents.

MORROW Circuit Judge.

This is an order to show cause why an injunction pendente lite should not issue. Complainant's bill is brought to secure an injunction restraining respondents from carrying away outside of the city and county of San Francisco, certain garbage and other enumerated materials collected therein, of which complainant claims exclusive right to dispose; also for the sum of $25,000 as damages for infringement of complainant's rights. Complainant's bill alleges that it is a corporation duly organized under the laws of California, and that the respondent corporation is organized under the laws of Colorado, and that the other respondents are aliens, residents of the city and county of San Francisco; that a certain order, known as 'Order No 2,965,' was duly and finally passed, adopted, and enacted by the board of supervisors of the city and county of San Francisco on February 17, 1896; that another order, known as 'Order No. 12' (second series), and one known as 'Resolution No. 903' (fourth series), were also regularly enacted in order to carry out the provisions of order No. 2,965 the more effectively; that by virtue of order No. 2,965 a valid contract was entered into between the city and county of San Francisco and one F. E. Sharon, under the terms of which the said F. E. Sharon was to have the exclusive privilege, for the period of 50 years from February 17, 1896, of cremating and reducing garbage and other specified materials collected in the city and county of San Francisco, at a maximum charge of 20 cents per cubic yard and the said F. E. Sharon, on his part, was to erect a crematory of the capacity of at least 300 tons a day, to reduce the enumerated substances within 24 hours of their receipt, and in such a manner as to avoid the emission of noxious gases; that this contract was assigned by F. E. Sharon to complainant on September 18, 1896; that complainant has carried out the provisions of the contract, having erected a crematory at a cost exceeding $200,000, and notified the board of supervisors of its readiness to receive garbage for reduction, and that, unless complainant can have the exclusive right of cremating and destroying the materials mentioned, the contract and franchise so entered into will be rendered worthless; that complainant has faithfully discharged the obligations imposed upon it by the contract; that the respondents other than the respondent corporation have hindered complainant in carrying out its contract by diverting large quantities of garbage and other materials from complainant's crematory, and depositing them upon lands in the city and county of San Francisco, and that some of them have been arrested and fined for so doing; that the respondent corporation was organized under the laws of Colorado for the express purpose of depriving complainant of its lawful gains by preventing large quantities of garbage from reaching the crematories of complainant, and shipping it away and depositing it on lands in the county of San Mateo and elsewhere, outside of this city and county; that in pursuance of the same object the other respondents have conspired with the respondent corporation to deliver daily to it large quantities of garbage, thus diverting it from the crematory of complainant, and that in pursuance of this conspiracy the respondent corporation has hired two barges, capable of carrying more than 500 tons, for the purpose of transporting garbage and such materials to the county of San Mateo, and other places outside of this city and county; that, by reason of these acts of respondents, complainant's contract and franchise have been depreciated, and damages have been inflicted upon it to the amount of $25,000; that many of the enumerated materials, when reduced, are of value as articles of commerce, and that the acts of respondents are depriving complainant of just gains and profits to an amount which it is impossible to state; that complainant is under a contract with the city and county of San Francisco to incinerate all the garbage and enumerated articles, and, if respondents are allowed to divert material from complainant, complainant will be rendered liable for breach of contract, and will thereby suffer great and irreparable injury; that complainant has frequently requested respondents to desist, but they have not done so, and, if they continue to infringe upon complaint's rights, complainant will suffer great and irreparable injury, without any plain, adequate, and complete remedy at law; that respondents have not yet begun to engage in any business except the hiring of barges for the purpose of diverting garbage from complainant; that respondents' acts are contrary to equity; and that complainant has no remedy at law. Complainant therefore asks that an injunction provisional and perpetual issue, and for damages to the amount of $25,000. A restraining order was issued from the filing of the bill.

A several answer was filed by the respondent California Reduction Company, and a joint and several answer by the other respondents. Respondents deny the validity of the Order No. 2,965, and that it was ever 'duly and finally passed, adopted, and enacted. ' Deny that the complainant has cremated the garbage and other materials within 24 hours, in such a way as to create no nuisance, but aver that a nuisance has been created by complainant. Deny that the respondent corporation was organized for the purpose of diverting garbage from complainant; that respondents have been repeatedly arrested and fined for violation of the ordinances named; that any confederacy or conspiracy has been formed for the purpose of interfering with complainant in carrying out the terms of its alleged franchise; that complainant is entitled to all the garbage, etc., collected in the city and county of San Francisco, but aver that it is only entitled to so much as is voluntarily taken to its crematory. Deny that complainant has suffered damage to an extent which it is impossible to estimate; that complainant is bound by any franchise to cremate all the garbage collected in the city and county of San Francisco, and that it will be liable for violation of the alleged franchise if it does not do so; that they have unlawfully combined, confederated, and conspired as charged in the bill. Admit that they have not yet begun to engage in any business other than the hiring of barges, as stated in the bill, but deny that this is being done in pursuance of any contract. Respondents also offer various affirmative defenses, by which respondent corporation avers that it is engaged in a lawful occupation, from which it would be deriving large profits, were it not for the stay order issued herein; that complainant can claim nothing under the franchise, as not having complied with the requirement that no nuisance shall be created in the reduction of the materials named; and because complainant has charged a sum in excess of 20 cents per cubic yard for the cremation of such materials. Respondents other than respondent corporation also offer affirmative defenses, in which they state that the Order No. 2,965 is null and void, in that the franchise was not granted to the highest bidder; that complainant has no rights under the franchise, because it has not complied with the conditions requiring the cremation of the specified materials without creating a nuisance, and has charged in excess of 20 cents per cubic yard of garbage brought for reduction; that respondents are scavengers, and were engaged in delivering materials to respondent corporation, and that they are prevented from lawful gains by the stay order granted herein; that the respondents are householders, and create large quantities of the materials enumerated; that these materials are of value to them, and they claim the right to dispose of them in such a way as not to cause a nuisance. Respondents ask for a dissolution of the stay order, and that no injunction be issued.

The argument of counsel has followed the wide range of the affirmative defenses set up in the respondents' answers. To determine these defenses now would, in effect, dispose of the case upon its merits,-- a result not contemplated by the rules governing courts of equity in granting preliminary injunctions. 'The order for such an injunction does not finally determine the rights of the parties to the action and its only purpose and effect are to preserve the existing state of things until the case has been fully heard by the court, and the entry of a final decree therein. And it is equally well settled that the granting of a provisional injunction rests in the sound discretion of the trial court, and that it is not necessary that the court should, before granting it, be satisfied from the evidence before it that the plaintiff will certainly prevail upon the final hearing of the cause. On the contrary, to adopt the language of the court in Georgia v. Brailsford, 2 Dall. 402, 'a probable right, and a probable danger that such right will be defeated, without the special interposition of the court,' is all that need be shown as a basis for such an order. See, also, Blount v. Societe Anonyme du Filtre Chamberland Systeme Pasteur, 3 C.C.A. 455, 53 F. 98, and cases therein...