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Horton v. City of Los Angeles

Supreme Court of California
Jan 17, 1898
119 Cal. 602 (Cal. 1898)

Summary

In Horton v. City of Los Angeles, 119 Cal. 602 [51 P. 956], a dismissal of the appeal from a judgment enjoining defendant from proceeding under a special statute was ordered after the repeal of such statute.

Summary of this case from Diederichsen v. Sutch

Opinion

         Department One

         Hearing In Bank Denied.

         Beatty, C. J., Dissented from the Order Denying a Hearing In Bank.

         APPEAL from an order of the Superior Court of Los Angeles County. Lucien Shaw, Judge.

         COUNSEL:

         R. L. Horton, for Appellant.

         William E. Dunn, City Attorney, and Graves, O'Melveny & Shankland, for Respondents.


         JUDGES: Chipman, C. Searls, C., and Belcher, C., concurred. Morrison, J., Van Fleet, J., Garoutte, J.,

         OPINION

          CHIPMAN, Judge

         Plaintiff brought this action to restrain defendants from taking any further steps under a notice of sale of a certain telephone franchise. The city council of Los Angeles had invited proposals for the sale of a telephone franchise under the act of March 23, 1893. (Stats. 1893, p. 288.) Under the notice, the tenders or proposals were to be opened on May 10, 1897. On that day plaintiff filed his complaint and obtained a temporary injunction as prayed for. An act of the legislature was passed March 13, 1897 (Stats. 1897, p. 135), repealing all acts inconsistent with it, and this act went into effect May 12, 1897. This act in effect superseded the act of March 23, 1893, and this latter act ceased to exist after May 11, 1897. Any proceedings taken under the act of 1893 to sell any franchise, contemplated by the act, could not be carried to a conclusion after May 11th, but would become functus officio after that day. Proceedings begun under the act of 1893 could not be perfected or completed under the act of 1897. This being the situation, defendants applied at once on May 10th, after the restraining order issued, to have it dissolved, and the court shortened the time for hearing the motion to 9:30 o'clock A. M. May 11th, and at the hearing granted the motion to dissolve the injunction. The result of this order was to leave the city council free to act. What it did in the matter is not disclosed, except by respondents' brief, of which we, of course, cannot take notice. Whatever may be the fact, it is obvious that by deciding the questions now before us no purpose can be subserved; but to do so might lead to the result of suggesting, if not promoting, further litigation in the matter. The notice of appeal was served July 8, 1897, nearly two months after the act of 1897 went into operation, and the act of 1893 had ceased to be law. No order that this court can now make in the premises could possibly avail appellant. If the council granted the franchise on May 11th, it could not help appellant now to restore the temporary injunction. If the council did not act upon the proposals until after May 11th, it would have to proceed and we must presume did proceed under the later act, and this injunction would avail nothing. (See Foster v. Smith , 115 Cal. 611.)

fdld;

         It is therefore recommended that the appeal be dismissed without prejudice to any of the parties.

         For the reasons given in the foregoing opinion the appeal is dismissed without prejudice to any of the parties.


Summaries of

Horton v. City of Los Angeles

Supreme Court of California
Jan 17, 1898
119 Cal. 602 (Cal. 1898)

In Horton v. City of Los Angeles, 119 Cal. 602 [51 P. 956], a dismissal of the appeal from a judgment enjoining defendant from proceeding under a special statute was ordered after the repeal of such statute.

Summary of this case from Diederichsen v. Sutch
Case details for

Horton v. City of Los Angeles

Case Details

Full title:R. L. HORTON, Appellant, v. CITY OF LOS ANGELES et al., Respondents

Court:Supreme Court of California

Date published: Jan 17, 1898

Citations

119 Cal. 602 (Cal. 1898)
51 P. 956

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