State Ex Rel. Public Service Commission v. District Court

MR. JUSTICE MORRIS delivered the opinion of the court. Petition for writ of supervisory control. October 9, 1935, the Public Service Commission upon its own motion held a hearing at the town of Sweet Grass, Montana, for the purpose of investigating and determining whether the Consumers Gas Company, a Montana corporation that supplied gas to the inhabitants of the towns of Sun Burst, Sweet Grass, and other points in that locality, was charging reasonable rates to its customers, or not. August 31, 1936, an order was made by the commission reducing the rates charged to the inhabitants of the towns of Sun Burst and Sweet Grass. September 18, 1936, the gas company commenced an action in the district court of the first judicial district of the state of Montana, seeking to restrain the commission from putting the new rates into effect or prosecuting* the gas company for failure to comply with the commission’s order reducing the rates. *565 The complaint prayed for a restraining order enjoining the commission until the final determination of the action, and that upon final hearing the act of the commission in the premises be adjudged in excess of jurisdiction. Upon filing the complaint in the district court, an order was issued directing the commission to show cause at 10 o’clock A. M., September 29, 1936, why it should not be restrained from enforcing the order complained of. The order to show cause was duly served, and the commission appeared by counsel and objected to the granting of the-injunction pendente lite or any restraining order, on the ground that such proceeding is expressly prohibited by section 3906, Revised Codes, until final determination of the action. October 6, 1936, the restraining order was issued as prayed for and served November 5, 1936. December 14, 1936, the commission filed its petition here, praying for a writ of supervisory control requiring the district court to appear and show cause why the restraining order should not be set aside and annulled. The writ was issued requiring the district court to appear and show cause at 9:30 o ’clock A. M. December 19, 1936, why a writ should not issue requiring that court to annul and set aside the temporary restraining order. The matter came on for hearing on the date fixed; the commission and the district court appeared by counsel, and in addition E. G. Toomey, Esq., appeared and asked permission to argue the matter orally and to file a brief as amicus curiae, which request was granted. The gas company moved to quash the writ on the grounds that the petition for the writ of supervisory control does not state facts sufficient to entitle the relators to such writ, or any other writ or relief whatever, and further that it affirmatively appears from the petition for the writ that relators are not entitled to the writ of supervisory control or any other writ. Arguments were heard, briefs were filed, the controversy has been duly considered, and we are of the opinion that the position taken by counsel who appeared as amicus curiae is sound, wherein he contends that the court should, of its own motion, dismiss the proceeding. This contention of counsel is based upon the *566 assumption that the restraining order of the district court was an injunction pendente lite, made after notice and hearing —a proceeding under which the commission had a clear right of appeal as provided by section 9731, Revised Codes, and that, such appeal not having been taken or perfected within sixty days' from and after the time the order fixing the new rates was issued, the commission had no right to a writ of supervisory control. In seeking the writ of supervisory control, the commission had proceeded on the theory that the order issued by the district court was merely a temporary restraining order, and that, under such an order, no right of appeal existed. The complaint in this action is accompanied by various exhibits which are attached thereto and made a part thereof. Such exhibits provide a record of the various steps in the proceedings. Exhibit 4 is a copy of the restraining order issued by the district court, which the petitioners here desire to have set aside and annulled. Upon reading such order it is very clear that it is an injunction pendente lite. It restrains “the defendant, their agents, representatives, attorneys and employees, * * • and each of them * * * until the final determination” of the action, and from commencing or prosecuting any action or proceeding against the plaintiff for failure to comply with the order of the Public Service Commission of August 31, 1936. The fact that it is referred to as a “temporary restraining order” does not make it so. “Whether an order is a restraining order or a temporary injunction must be determined from its form and substance. The restraint which the order purports to impose and not the name given to it determines its true name and character.” (32 C. J. 28.) In the case of Labbitt v. Bunston, 80 Mont. 293, 260 Pac. 727, 730, this court said: “The decision in Maloney v. King, above [25 Mont. 256, 64 Pac. 668], which, on the authority of the Wetzstein opinion [Wetzstein v. Boston & Montana etc. Co., 25 Mont. 135, 63 Pac. 1043], held that an appeal does not lie from a temporary restraining order pending the hearing *567 of an order to show cause why an injunction pendente lite should not issue. * * * As injunctive orders, granted without notice, are not appealable, they are vulnerable to a motion to vacate, dissolve, or modify. (Sec. 9250, Rev. Codes 1921; Butte Consolidated Min. Co. v. Frank, 24 Mont. 506, 62 Pac. 922; McDermott v. American Bonding Co., 56 Mont. 1, 179 Pac. 828; Winnett Pacific Oil Co. v. Wilson, 71 Mont. 250, 229 Pac. 850.) Where the matter is heard upon an order to show cause, the right to a temporary injunction is ‘adjudicated’ by the decision rendered after the hearing (Winnett Pacific Oil Co. v. Wilson, above); so here, as the motion to dissolve presented the question of plaintiff’s right to the restraining order, and the decision on the motion was equivalent to a decision on the hearing on the order to show »cause and rendered such a hearing needless, the order of September 24th was an ‘adjudication’ of the plaintiff’s right to an injunction pendente lite and an order refusing to dissolve an injunction, from which an appeal lies under section 9731, above.” We think there is no question that the order issued by the district court was an injunction pendente lite, and, being such, was an appealable order. Such being the case, petitioners are not entitled to a writ of supervisory control. (State ex rel. Meyer v. District Court, 102 Mont. 222, 57 Pac. (2d) 778.) True, there is an exception to this rule which, however, applies only in cases where the remedy by appeal is inadequate, and the commission earnestly contends here that such a situation confronts them in this proceeding, but after careful consideration we think such contention is without merit. The writ is denied and the proceeding dismissed. Associate Justices Matthews, Stewart and Anderson concur.