Camblos v. Philadelphia & R. R.

McKENNAN, Circuit Judge. The prayers of these bills are the same. Although, in form, they invoke the preventive intervention of the court, they are founded upon the alleged denial of certain legal rights claimed by the Adams Express Company, and it is manifest that the only beneficial measure of' relief would be a mandatory order, constraining the defendant to concede to the express company the exercise and enjoyment of the rights claimed by it. This it may be within the range of the power of the court to decree, but it ought to be done only under-circumstances of special exigency, to avert the continuing injuriousness of clearly wrongful acts. As a method of enforcing the concession of a mere right, it is inconsistent with the object and appropriate functions of a preliminary injunction. In Lehigh Coal & Nav. Co. v. Lehigh Valley R. Co., referred to-in Audenried v. Philadelphia & R. R. Co., 18 P. F. Smith [68 Pa. St.] 376, Mr. Justice Strong said: “A preliminary injunction-ought never to be granted except in a clear ease, and then only to prevent a substantial injury. Its purpose is to keep things in their existing condition until the case can be finally heard. As it is the strong arm of the-law, it must be used only when necessity 1100 requires it And a preliminary injunction •can never be necessary when the thing sought to be restrained has been already done; for its province is not to undo, but to prevent and preserve.” And in Farmers’ R. Co. v. Reno, O. C. & P. Ry. Co., 3 P. F. Smith [53 Pa. St.] 224, the same learned judge said: “The sole object of such an order is to preserve the subject of the controversy in the •condition in which it is when the order is made. It cannot be used to take property out of the possession of one party and put it into possession of the other. That can be accomplished only by a final decree.” It is true the allowance of mandatory interlocutory injunctions has, to some extent, the sanction of the modern English practice. It has grown up upon the supposed authority •of Lord Eldon, who made such an order, for the first time, in Lane v. Newdigate, 10 Ves. 193. But he evidently regarded it as exceptional, and while he considered the injury complained of as a dear invasion of the complainant’s rights, demanding prompt rep.aration, he declined to decree a specific correction of it by the defendant^ but so avowedly framed his order as to “create the necessity” for the defendant doing what he was unwilling to order him directly to do. Such a case cannot be regarded as evidence of the existence of a uniform practice, or .as a warrant for the establishment of one. It has certainly not led to such a result in this country, for in Audenried v. Philadelphia & R. R. Co., supra, Mr. Justice Sharswood ■says with great force: “There are some few instances in England in which a mandatory order has been made in an interlocutory application, but they have been very extreme ■case, and ought not to be followed as precedents.” Is there anything, then, in the circumstances of the present case to demand a resort to so questionable a mode of interposition? 'The Adams Express Company is entitled to protection only against such illegal acts of the defendant as are prejudicial to its rights and interests. If the railroad company has , assumed the exercise of any franchise not i •conferred by its charter, the express cornpa- ¡ uy is not authorized to call it to account. If, i without right, it seeks to appropriate the j profits of a business of which the express : company before had the monopoly, it does not thereby incur any liability to the express company. Their relations to each other grew out of the corporate duties of the defendant as a common carrier, and it is only for a failure or refusal to perform any of these duties to the express company as a shipper that the latter has a right to complain. The transportation of its freight over the defendants’ road is not denied to the express company, nor can it be. The parties disagree as to the regulations imposed and the rates demanded by the defendant. The right to rebate from the charges of the defendant, equal to the cost of collecting, trans- i porting, and delivering parcels from and to ■ the doors of the consignors and consignees, and the right to pay for transporting a package of parcels only the price charged for a separate one, are claimed by the plaintiff, and constitute the substantial subjects of the contention. Practically, only the profits to be derived from the express business on the Philadelphia and Eeading Eailroad are involved in it. Shall these profits accrue to the railroad company or to the express company? Are these questions of such urgent significance as to call for their decision before a final hearing? To decide them now, as must necessarily be done if the present motion is allowed, is, in effect, to decide them finally, because a final decree could not more fully secure to the plaintiff the enjoyment of what it claims than would an interlocutory injunction. Why should this be done in the absence of an answer and of the proofs necessary to a precise adjustment of the relative rights and duties of the parties, or without a trial at law? “To preserve the subject of the controversy in the condition in which it is” now, does not require it, but the effect would be to undo what has been done, to take away from the defendants the controverted rights now enjoyed by them and confer them upon the plaintiff. This can be accomplished appropriated only by a final decree. Nor has the complainant Cambios any better title to this summary relief than the express company. As a stockholder in the corporation defendant, his only interest is in being protected against the risk of loss. So long as those who manage the corporation keep within the limits of its charter, and commit, or propose to commit, no breach of their trust, he has no right to complain. In Dodge v. Woolsey, 18 How. [59 U. S.] 341, the court says: “It is now no longer doubted, either in England or the United States, that courts of equity in both have jurisdiction over corporations, at the instance of one or more of their members, to apply preventive remedies by injunction to restrain those who administer them from doing acts which would amount to a violation of charter, or to prevent any misapplication of their capitals or profits, which might result in lessening- the dividends of stockholders, or the value of their shares, as either may be protected by the franchise if the acts intended to be done create what is, in the law, denominated a breach of trust.” If the acts complained of are violations of the defendants’ charter, as they are not, because concerning only the administration of its legal faculties, the mischief has been already done, —and a preliminary injunction could not avert their injurious consequences; and surely the value of the complainant’s stock will not be impaired, or the dividends upon it lessened, by securing, its participation in the profits of a business which he seeks to divert into another channel. And then as to the 1101 apprehended liability of the defendants to the express company for damages, he has voluntarily sought the risk from which he asks to be protected. It is charged and not denied that he acquired his stock “on account and in the interest of the Adams Express Company, and solely with the view of giving himself a supposed status in court, to enable him to maintain the present suit ostensibly as a stockholder of the Philadelphia and Reading Railroad Company, but really as an agent of the Adams Express Company,” and “that the expenses of the said suit, are to be borne by the said company.” And these averments are corroborated by the fact that his bill is filed at the same time with and is an exact counterpart of the express company’s bill. . He does not, therefore, come into court with a bona fide complaint as a stockholder really seeking protection, but as the auxiliary of another party whose proceeding is adverse to his, interest as a stockholder. It is not a question of his motives, but of the genuineness of the character in which he presents himself, and of the good faith of his appeal for summary relief. A court of equity is not the redresser of simulated wrongs, nor will it exert its strong arm to relieve a complainant in a position which he has voluntarily assumed, with a full knowledge of its perils. The motion for a preliminary injunction is therefore denied.