Lichtstern v. J. Rosenbaum Grain Co.

Mr. Justice Fitch delivered the opinion of the court. While counsel have presented and discussed at length a number of interesting legal questions which undoubtedly it would be necessary for us to decide if this were an appeal from a final decree, we have reached the conclusion that but two of them are of controlling importance upon this appeal from an interlocutory order. These two questions may be stated as follows: First, is the order appealable; or if appealable, is it erroneous, in view of the fact that it directs an injunction to issue upon the condition that the complainant file a bond of $100,000 without fixing or limiting any time when or within which it must be filed; second, is the right of appellee to maintain this bill sufficiently free from doubt as to justify the issuance of a preliminary injunction in the absence of any affirmative showing of irreparable injury to him? The order does not, in terms, enjoin or restrain the defendants from doing anything, nor does it, in terms, expressly require the complainant to file the specified bond, nor fix any time within which he may file it. It is, therefore, entirely optional with him when, if ever, the injunction shall “issue.” The record does not show that any injunction bond was ever filed, nor any injunction actually “issued.” Appellant’s counsel state in their brief, and appellee’s counsel conceded, on the oral arguments, that in fact no bond has even yet been filed. It is an elementary principle in the law of injunctions, that “the utmost care should be observed in the granting of preliminary injunctions,” and that such an injunction “should only be allowed upon a clear necessity being shown of affording immediate protection to some right or interest of the party complaining which would otherwise be seriously injured or impaired.” 1 High on Injunctions, sec. 10. By the terms of this order, however, the court in effect delegated to the complainant the power of deciding for himself whether his need was urgent or otherwise, and placed in his hands the right to use or not to use, in his discretion, the “strong arm of the court.” Until the complainant shall decide whether he needs an injunction and whether his need is sufficiently urgent to induce him to file a bond for $100,000, no injunction can “issue” under the order of the court. Until then, the order, in itself, has no restraining force or effect, for there is nothing elsewhere in the order which either expressly or by implication, enjoins or restrains the defendants from continuing the practice complained of. They could not be punished for contempt for so doing, for the reason that such an order has no force or effect as an injunction until the prescribed condition is performed. Winslow v. Nayson, 113 Mass. 411; Clarke v. Hoomes’ Ex’rs, 2 Hen. & M. (Va.) 23; State v. Irwin, 30 W. Va. 404 ; 2 High on Injunctions, secs. 1429, 1620, 1621. While it is true that whatever the defendants may do, or may have done, since the court below acquired jurisdiction, has been and will be done at the risk of being compelled to restore the conditions then existing, yet this was true as well before the interlocutory order was entered as since it was entered. Hence the order, in itself, imposed no additional restraint, if it can be called such, in this respect. Section 123 of the Practice Act, which governs appeals from interlocutory orders, requires an appeal to be “taken” within thirty days from the “entry” of the order, and to be “perfected” in this court within sixty days, whereupon the hearing of such an appeal takes precedence of all other causes in this court. The statute further provides that “the force and effect of such interlocutory order * * * shall not be stayed during the pendency of such appeal.” While it would seem clear from the language of this section of the statute, that the right of appeal would be lost if not exercised within the statutory thirty days from the date when the order is entered by the lower court, whether such order is in force during such thirty days or not, yet it by no means follows that the lower court may properly enter an order purporting to grant an injunction, in such form as to have no restraining force or effect “during the pendency of such appeal.” The contrary would seem to be clearly implied from the provision above quoted to the effect that the appeal shall not operate to stay the force and effect of the order appealed from. Evidently the legislature assumed, when it enacted this provision of the statute, that no order would be entered granting an interlocutory injunction, until after it has been made to appear that the necessity for such action is urgent, and that such order, when entered, would be immediately effective, or at least, would be made effective within thirty days. If, however, an order is entered which, does not expressly enjoin the doing of the acts complained of, but merely provides that a temporary injunction may issue at any time thereafter that the complainant shall see fit to file a bond of a specified amount, or shall see fit to perform some other specified condition, the fact that the order is so entered is, of itself, strong evidence that no such urgency exists as to warrant the issuance of a writ of injunction pendente lite. In our opinion, the order is erroneous in not fixing a short time, not exceeding thirty days, within which the specified condition must be performed, so that if the condition be performed, the interlocutory injunction order will be in force and effect when an appeal is taken therefrom, and this court will have before it for decision a live question; or, on the other hand, if the condition be not performed within the time limited by the order, then there will be no occasion for an appeal. We think the language above quoted from the Practice Act is entirely inconsistent with the theory that the legislature intended to require this court to hear and determine questions regarding the validity and propriety of interlocutory injunetional orders which are not in force at the time they are brought before us for review, especially in view of the provision requiring us to give such appeals precedence over all other causes. As to the second question above stated, counsel for appellee took the position, both in the court below and in this court, that it was unnecessary for the complainant to either allege or prove any actual damage or injury to complainant’s rights beyond the mere fact that defendants are indulging in a practice which is contrary to their duty as trustees for the holders of warehouse receipts. It will be noted that the order as entered does not purport to authorize the issuance of any injunction restraining defendants from doing anything to the prejudice of the complainant alone, but from indulging in the practice of storing any of their own wheat in their own warehouses and of cleaning wheat anywhere for such purpose. The argument was and is, that an equitable principle, viz.: a trust, is involved; that while defendants are public trustees and charged with a duty towards the public which will not permit them to own, directly or indirectly, any of the grain stored in their own warehouses, or to mix grain for the purpose of sending it to store in such warehouses, as was held in Central Elevator Co. v. People, 174 Ill. 203, and Hannah v. People, 198 Ill. 77, yet there is a special trust in favor of the holders of their warehouse receipts; and that on this principle, the complainant as one of the cesiuis que trust, may maintain a bill to enjoin any violation of duty by defendants as such trustees. To this argument, appellants’ counsel reply that for any violation Of the defendants’ duty as public trustees, the public, only, can complain, through its authorized, representative, the attorney-general; that no private individual can maintain an action based upon any alleged breach of a public duty unless he avers and proves some special injury, different in kind, and not merely in dégree, from that of the public generally. Without undertaking to analyze the numerous authorities cited by counsel in support of their respective contentions, it will suffice to say that from our examination of these, and other authorities, it is apparent to us that the right of the complainant to bring this suit, in the absence of any showing of special injury and particularly his right, as an individual receipt holder, to an injunction which restrains the defendants from continuing an alleged general practice affecting all present and future holders of warehouse receipts in precisely the same manner that it affects him, is so very doubtful that no preliminary injunction should have been issued. The right to a preliminary injunction under similar circumstances was denied in Weed v. Roberts, 49 N. Y. Supp. 366; Fritz v. Erie City Pass. Ry., 155 Pa. St. 472; Ryan v. Williams, 100 Fed. 177. For the reasons indicated, the order of the circuit court will he reversed. Order reversed.