Summary
holding that when the Legislature declares certain conduct to be unlawful, it is tantamount to calling it injurious to the public, and to continue such unlawful conduct constitutes irreparable injury for purposes of seeking injunctive relief
Summary of this case from Seiu Healthcare Pa. v. CommonwealthOpinion
March 25, 1947.
March 29, 1947.
Constitutional law — Courts — Jurisdiction — Dauphin County Common Pleas — Constitution — Article V, sections 4 and 26 — Act of April 7, 1870, P. L. 57 — Public Utility Law.
1. The Act of April 7, 1870, P. L. 57 (which confers jurisdiction on the Court of Common Pleas of the County of Dauphin in all suits in which the Commonwealth may be the party plaintiff) does not violate Article V, section 26 of the Constitution (which provides, in part, that all laws relating to courts shall be general and of uniform operation.) [410-11]
2. Section 903 of the Public Utility Law of May 28, 1937, P. L. 1053 (which provides that the Public Utility Commission may institute in the court of common pleas of Dauphin County appropriate legal proceedings to restrain violations of the provisions of the Public Utility Law or of the regulations and orders of the Commission, and that such Court of Common Pleas shall have exclusive jurisdiction throughout the Commonwealth to determine all such actions) does not violate Article V, section 26, of the Constitution. [411-14]
Equity — Rules — Preliminary injunctions — Allegation of irreparable loss or damage — Unlawful conduct — Preservation of status quo.
3. Under Equity Rule 38, a preliminary injunction may be granted, when notice is given to the defendant, without an allegation that immediate and irreparable loss will result to plaintiff. [406]
4. The legislature's declaration that certain conduct is unlawful is tantamount in law to calling it injurious to the public, and for one to continue such unlawful conduct constitutes irreparable injury. [406]
5. Spreading unlawful conduct is irreparable injury of the most serious nature, and a proper subject for a preliminary injunction. [407]
6. The status quo which will be preserved by preliminary injunction is the last actual, peaceable and lawful non-contested status which preceded the pending controversy. [407-8]
Public Utility Law — Regulation of utilities — Legislature — Public necessity — Public Utility Commission.
7. It is for the legislature to determine what regulation there should be of public utilities. [408-9]
8. The Public Utility Commission is charged with the responsibility of determining the extent of the public need for transportation in motor vehicles and how and by whom the need can best be met. [409]
9. In an equity proceeding, it was Held that a preliminary injunction was properly granted restraining the defendants, who had no certificates of public convenience, from transporting passengers in taxicabs for compensation, though the funds received for the transportation were obtained allegedly as a "donation or tip" and not by a fixed charge. [402-14]
Argued March 25, 1947.
Before MAXEY, C. J., DREW, LINN, STERN, PATTERSON, STEARNE and JONES, JJ.
Appeal, No. 9, May T., 1947, from decree of C. P., Dauphin Co., Equity Docket, 1947, No. 1767, and Commonwealth Docket, 1947, No. 16, in case of Pennsylvania Public Utility Commission v. Louis Israel et al. Decree affirmed; reargument refused April 17, 1947.
Bill in equity.
The facts are stated in the opinion of the Supreme Court and in the opinion, by WOODSIDE, J., of the court below as follows:
The question here presented is whether we should grant a preliminary injunction restraining the defendants, who have no certificates of public convenience, from transporting passengers in motor vehicles, commonly called taxicabs, within Pennsylvania, for compensation, when the funds received for the transportation are obtained as a "donation or tip" and not by a fixed charge.
The Bill in this case was presented to President Judge HARGEST on January 22, 1947, and a rule was thereupon issued on the defendants to show cause why a preliminary injunction should not be issued. This rule was made returnable January 27, and then continued to February 13, on which day testimony was taken to determine whether or not the preliminary injunction should be issued.
For many years it has been the practice of this Court, when exercising jurisdiction as to the so called "Commonwealth Court", to grant a rule upon the defendant to show cause why a preliminary injunction should not be issued, rather than to immediately issue an ex parte preliminary injunction upon the presentation of a bill in equity praying for injunction.
This practice has been well known to, and uniformly approved by the various Attorneys General, and the bar throughout the state. It has been recognized or condoned by the Supreme Court in numerous cases. Among them are the following: Page v. King, et al., 285 Pa. 153 (1926); Werner v. King, et al., 310 Pa. 120 (1932); Clark, et al., Commissioners of Phila. County v. Beamish, et al., 313 Pa. 56 (1933); Scudder v. Smith, et al., Heinel Motors Inc. v. Roberts, et al., 331 Pa. 165 (1938); Holgate Bros. Co. et al. v. Bashore; Miller v. Bashore, et al, 331 Pa. 255 (1938); York Railways Co. v. Driscoll, et al., 331 Pa. 193 (1938); Carolene Products Co. v. Harter, et al., 329 Pa. 49 (1938); Merchants' Warehouse Co. v. Hitchler, L.C.B. 335 Pa. 465 (1939); Rich Hill Coal Co. v. Bashore, 334 Pa. 449 (1939); Annenberg v. Roberts, et al., 333 Pa. 203 (1939); Bell Telephone Co. of Pa. v. Driscoll, et al., 343 Pa. 109 (1941); Hayes et al. v. Harris, et al., 351 Pa. 600 (1945); Pennsylvania Electric Co. v. Morrison, Secy. of Commonwealth, 354 Pa. 472 (1946); Schireson v. Shafer, et al., 354 Pa. 458 (1946); Commercial Banking Corp. v. Freeman, 353 Pa. 563 (1946).
This practice apparently was not confined to Dauphin County for it was also used by a Philadelphia Court in the case of Commonwealth v. Rosenblit, 347 Pa. 7, 8 (1943) where Justice DREW referred to the "hearing on the rule for a preliminary injunction", and by the Delaware County Court in the case of Trainer v. International Alliance of Theatrical Stage Employees and Moving Picture Machine Operators of the United States and Canada, Local No. 516, et al., 353 Pa. 487, where Justice PATTERSON referred on Page 491 to "the rule for a preliminary injunction."
However, in the recent case of Commonwealth v. Dauphin County, et al., 354 Pa. 556 (1946) where the action was begun on petition and rule the Supreme Court admonished us against the practice followed in that case.
Here upon the presentation of a bill in equity praying for a rule our President Judge (now senior of all Common Pleas Judges of Pennsylvania) feeling that it would be more equitable in this case, issued upon request of counsel, a rule instead of an injunction.
When the case came to hearing the Court (President Judge HARGEST being absent) suggested to counsel that if objections to the issuance of a rule in the case were made to us we would be inclined to sustain it on the authority of Commonwealth v. Dauphin County (supra), permitting the Public Utility Commission to take such action as it then would see fit, but counsel for the defendants joined with counsel for the Public Utility Commission in approving the issuance of the rule and waived all rights to object thereto.
We recognize that the objection to the proceeding in Commonwealth v. Dauphin County, supra, may not apply with equal force in cases such as the one before us, where the original proceeding is by bill rather than petition, nevertheless, to avoid any controversy on this point we made the aforesaid suggestion to counsel concerning it.
The facts of the case are not seriously in dispute.
In September, 1945, a number of the defendants organized under the name of "G. I. Taxicab Association," sought from the Public Utility Commission certificates of public convenience to operate 100 taxicabs as common carriers for the transportation of persons upon call and demand in the City of Philadelphia.
The Commission made no determination on the applications until December 2, 1946, when it refused them. Thus none of the defendants hold a certificate of public convenience from the Public Utility Commission to operate or hold himself out as a common carrier of passengers.
On or about November 16 a number of motor vehicles appeared on the street in Philadelphia painted in the manner taxicabs are usually painted, and containing in prominent letters, "G. I. Taxicab Association," and in somewhat smaller letters, "Riders Fully Insured." These cabs had roof lights of the character generally seen on taxicabs and contained the letters, "G. I." They cruised the streets of Philadelphia, picked up passengers in the manner that a taxicab generally uses to pick up passengers, and took the passengers to their requested destination. When the passenger got into the cab the driver read the speedometer and made a note thereof. When the passenger alighted the driver again read the speedometer and figured the distance which had been traveled. If the passenger asked how much the bill was, some of the drivers would state that they do not charge, but would accept whatever is given them. Others would say: "We do not have a fixed charge," or words to that effect, "but if you would ride in a regular taxicab it would cost you so much," stating an amount which the driver obtained from a card which had been furnished him by the association. Some drivers would merely say, "the charge is so much," giving the amount which was shown on the card as the sum which would have been charged by a regular taxicab equipped with meter for the same service. One of the defendant drivers said 99 and 99/100 per cent of the people who rode in the cabs paid something.
"The G. I. Taxicab Association" had an office and telephone, duly listed in the telephone book, where prospective customers could call and obtain taxicab service.
The Public Utility Law provides: "Upon the approval of the commission, evidenced by its certificate of public convenience first had and obtained, and not otherwise, it shall be lawful for any proposed public utility — (a) To be incorporated, etc. . . . (b) To begin to offer, render, furnish, or supply service within this Commonwealth." Act of May 28, 1937, P. L. 1053, section 201 ( 66 PS 1121).
In the Public Utility Law a "public utility" is defined inter alia as a person operating equipment for transporting passengers as a common carrier; and a "common carrier" as any person holding out, offering or undertaking, directly or indirectly, service for compensation to the public for the transportation of passengers between points within this Commonwealth; and "common carrier by motor vehicle", as a common carrier who holds out or undertakes the transportation of passengers by motor vehicle for compensation. Section 2 of the Public Utility Law (supra) 66 PS 1102.
Section 903 of the Public Utility Law, supra (66 PS 1343) provides that: "Whenever the commission shall be of opinion that any person . . . is violating, or is about to violate, any provisions of this act; or has done, or is about to do, any act, matter, or thing herein prohibited or declared to be unlawful; . . . then and in every such case the commission may institute in the court of common pleas of Dauphin County, injunction, mandamus, or other appropriate legal proceedings, to restrain such violations of the provisions of this act, or of the regulations, or orders of the commission, and to enforce obedience thereto; and such court of common pleas is hereby clothed with exclusive jurisdiction throughout the Commonwealth to hear and determine all such actions. No injunction bond shall be required to be filed by the commission." . . .
It is the contention of the Public Utility Commission that the defendants, in violation of the aforesaid provisions, are undertaking the transportation of passengers by motor vehicles for compensation.
This is not seriously disputed by the defendants. At least they presented no authorities to the Court to substantiate the suggestion that their plan of operation was not transporting passengers for compensation. Transporting passengers in the manner here admitted by the defendants has been held to be in violation of the provisions of the Public Utility Law. The Yellow Cab Co. v. Cab Drivers Local No. 249A, 79 P. L. J. 242 (1931).
The defendant made preliminary objections to the Bill and argued that since there was no allegation of irreparable injury no preliminary injunction could be issued.
Equity Rule 38 provides: "Preliminary injunctions may be granted on bill and injunction affidavits, with notice to defendant; without notice to the defendant, they may only be granted on the filing of an affidavit by plaintiff or some one cognizant of the facts, supported by other affidavits when necessary, that immediate and irreparable loss or damage will result to plaintiff before the matter can be heard on notice. . . .
The rule requires the allegation, supported by affidavit of "immediate and irreparable loss or damage" only when the preliminary injunction is sought "without notice to the defendant". The rule has no such requirement when notice is given. Here the defendants have had nearly a month's notice, and have defended.
At the hearing the Commonwealth has made a prima facie showing that the defendants are operating taxicabs in violation of law. The argument that a violation of law can be a benefit to the public is without merit. When the Legislature declares certain conduct to be unlawful it is tantamount in law to calling it injurious to the public. For one to continue such unlawful conduct constitutes irreparable injury.
Furthermore, the evidence shows, and additional cases heard by us indicate, that the number of people operating taxicabs unlawfully in Philadelphia is increasing since the defendants started their method of operation. Spreading unlawful conduct is irreparable injury of the most serious nature, and a proper subject for preliminary injunction.
In Commonwealth v. Pittsburgh Connellsville Railroad Co., 24 Pa. 159, 160 (1854) the Court said: "The argument that there is no 'irreparable damage,' would not be so often used by wrongdoers, if they would take the trouble to observe that the word 'irreparable' is a very unhappily chosen one, used in expressing the rule that an injunction may issue to prevent wrongs of a repeated and continuing character, or which occasion damages which are estimable only by conjecture and not by any accurate standard. . . . Besides this, where the right invaded is secured by statute or by contract, there is generally no question of the amount of damage, but simply of the right."
The defendants further argue that the purpose of granting a preliminary injunction is to maintain the status quo and that since the defendants were operating before the bill was filed they should be allowed to continue to do so at least until final determination of the matter before us.
None of the cabs was in operation prior to the middle of November 1946. The bill was filed in this case on January 22, 1947.
It is true that in general the object of a preliminary injunction is to maintain things as they are until the rights of the parties can be considered and determined after a full hearing, but it is now well settled that at times it is necessary to make even a preliminary injunction mandatory: Leisenring v. Pennsylvania Lighting Co., 59 Pa. Super. 202, 208 (1915).
In Commonwealth v. Cohen, 150 Pa. Super. 487, 489 (1942) the Court said: "The rule is 'that the status quo which will be preserved by preliminary injunction is the last actual, peaceable [and, we may add, lawful] non-contested status which preceded the pending controversy.' "
A preliminary injunction is to put and keep matters in the position in which they were before the improper conduct of the defendants commenced and to prevent them from gaining any advantage by their own wrongful acts: Baptist Congregation v. Scannel, 3 Grant 48; Fredericks, et al. v. Huber, et al., 180 Pa. 572, 575 (1897).
In McDevitt, et al. v. Phillips, et al., 45 Dauphin 394, 398 (1938) this Court held that the Court is not bound to preserve a status which it finds to exist at the moment the Chancellor gets his grasp of the case, but he is bound where the right is clear to restore 'the status' which existed immediately before the dispute arose."
A situation almost identical to the one now before us arose in Pittsburgh in 1930 during a cab drivers strike. The strikers obtained automobiles and held themselves out as ready to accommodate the general public by transporting passengers anywhere in the City of Pittsburgh. With a few exceptions no fares were charged, but no "contributions" were refused. The defendants held no certificates of public convenience from the Public Service Commission. The Courts granted a preliminary injunction restraining the defendants from transporting passengers, holding that they were engaged in business as common carriers and that the jurisdiction to restrain them as law violators by preliminary injunction was clear: Yellow Cab Co. v. Cab Drivers Local No. 294A, 79 P. L. J. 242 (1931).
The defendants have argued that they should be permitted "to enjoy the right of following a chosen occupation" and "go into business for themselves," and that to prohibit them from so doing is "contrary to the principles of free enterprise." This is true, but their occupation must be carried on according to law. In matters of this kind it is for the Legislature, not us, to say what regulations there should be of this type of business.
The defendants also argue, and apparently with considerable merit, that taxicabs are badly needed in Philadelphia and that the public there is, at least during the present time, benefiting from their service. But again, our opinion on this is of no importance for here again it is not this Court which is to determine such matters. The Public Utility Commission is charged with the responsibility of determining the need of such public service and how and by whom the need can best be met.
We are urged not to issue this preliminary injunction because a number of young men will suffer economic loss, but if the law is being violated, our duty is clear.
The situation is quite simple. The Legislature has said that no one shall transport passengers within Pennsylvania for consideration without first obtaining a certificate of public convenience from the Public Utility Commission to do so. The defendants are transporting passengers within Pennsylvania for money. They cannot circumvent the provisions of the law by contending the service is "free" or not for compensation. It is for compensation 9999 times out of 10,000, according to one of the defendants.
When the provisions of the Public Utility Commission Law are being violated the Legislature provided for the Commission to come before this Court, and prevent the violation by obtaining an injunction. When the right to such injunction is clear, as it is here, under the undisputed facts, it is our duty to issue a preliminary injunction.
Defendants appealed.
Joseph Sharfsin, with him Irving R. Shull and Bernard L. Lemisch, for appellants.
Gabriel D. Weiss, with him William M. Rutter, for appellee.
The entire decree of the court below, enjoining the defendants from, inter alia, operating motor vehicles in the City of Philadelphia or elsewhere in this Commonwealth in the manner or of the character herein described; from offering, rendering, furnishing or supplying service as a public utility within this Commonwealth; from operating motor vehicles in this Commonwealth bearing the word "taxicab" or "cab" upon such vehicle; from holding out, offering, or undertaking, directly or indirectly, service for compensation, whether in the nature of tips, gratuities or otherwise to the public for the transportation of passengers; from permitting or suffering any motor vehicle owned by them or any of them to be operated in any of the manners aforesaid, is affirmed upon the opinion of Judge WOODSIDE of the court below.
Judge WOODSIDE in his opinion discussed and correctly decided all the questions raised in the court below.
In this court appellants for the first time contended that the court below did not possess the jurisdiction nor the power to enter its decree upon the subject matter involved and against the defendants herein. We have considered this contention and we find no merit in it. Appellants claim that the alleged lack of jurisdiction arises from Article V, section 26, of the Constitution of Pennsylvania. This section provides as follows: "All laws relating to courts shall be general and of uniform operation, and the organization, jurisdiction and powers of all courts of the same class or grade, so far as regulated by law, and the force and effect of the process and judgments of such courts, shall be uniform . . ."
In answer to this contention, it must be noted (1) that Article 5, section 4, of the Constitution provides as follows: "Until otherwise directed by law the courts of common pleas shall continue as at present established, except as herein changed . . ." And (2) that the Act of April 7, 1870, P. L. 57; 17 PS 255, provides as follows: "The court of common pleas of the county of Dauphin is hereby clothed with jurisdiction, throughout the state, for the purpose of hearing and determining all suits, claims and demands whatever, at law and in equity, in which the commonwealth may be the party plaintiff, for accounts, unpaid balances, unpaid liens, taxes, penalties and all other causes of action real, personal and mixed."
The Act of May 25, 1937, P. L. 793, amended the above Act of 1870 by adding after the word "Dauphin" the following: "the judges of the orphans' court of Dauphin County are hereby clothed with jurisdiction throughout the State", etc.: 17 PS 1946 Cumulative Annual Pocket Part section 255.
In Commonwealth v. Wilkins, 271 Pa. 523, 115 A. 887, this court said of the above Act of 1870, "its evident purpose is that the Commonwealth, when suing in her own right, shall be allowed to prosecute her claims at the seat of government, and not be required to go to other parts of the State, where the defendants happen to reside. The fact that, under other legislation, she has also the privilege of proceeding wherever the defendants may be found and served with process, is beside the question; for this does not repeal the Act of 1870, either expressly or by implication, and hence she still has the absolute right to litigate her claims in Dauphin County, if she chooses so to do."
Appellants specifically contend that section 903 of the Public Utility Law of May 28, 1937, P. L. 1053, 66 PS 1343, is in direct conflict with Article 5, section 26, of the Constitution. This section provides as follows: "Whenever the commission shall be of opinion that any person . . . is violating, or is about to violate, any provisions of this act, or has done, or is about to do any act, matter, or thing herein prohibited or declared to be unlawful; . . . then and in every such case the commission may institute in the court of common pleas of Dauphin County, injunction, mandamus, or other appropriate legal proceedings, to restrain such violations of the provisions of this act, or of the regulations, or orders of the commission, and to enforce obedience thereto; and such court of common pleas is hereby clothed with exclusive jurisdiction throughout the Commonwealth to hear and determine all such actions. No injunction bond shall be required to be filed by the commission."
In adopting the Constitution of 1874 containing Article 5, section 4, above quoted, the people of this Commonwealth obviously intended that the Court of Common Pleas of Dauphin County should until otherwise directed by law "continue as at present established", that is, continue as a court with State-wide jurisdiction in all litigation "in which the Commonwealth may be party plaintiff."
When by section 903 of the Public Utility Law of May 28, 1937, the Public Utility Commission as an agent of this State was authorized to institute in the Court of Common Pleas of Dauphin County injunction, mandamus or other appropriate legal proceedings to restrain the violations of the Public Utility Law of this Commonwealth or of the regulations or orders of the Commission and in effect directed that the Commission could resort to no other court for the same purpose, the Court of Common Pleas of Dauphin County "continued as at present established". Section 903 of the Act of 1937, supra, merely gave to the Public Utility Commission access for certain public purposes, to this long-established Court of Common Pleas, which since 1870 has possessed State-wide jurisdiction. The fact that this access was thus given to an agency of the State which was not in existence in 1870 did not change the character of the Court of Common Pleas of Dauphin County.
The fact that section 903 of the Act of 1937, supra, gave the Court of Common Pleas of Dauphin County "exclusive jurisdiction throughout the Commonwealth to hear and determine all such actions", i. e., the actions enumerated in this section, does not offend Article 5, section 26, of the Constitution, which declares that "the organization, jurisdiction and powers of all courts of the same class or grade . . . shall be uniform." Since by the Act of 1870 the Court of Common Pleas of Dauphin County was made a Court of Common Pleas of a special class, to wit, a court with State-wide jurisdiction, and since Article 5, section 4, of the Constitution declares that the "Court of Common Pleas shall continue as at present established" (meaning thereby that the court of common pleas of Dauphin County as well as all other courts "should continue as at present established"), the Act of 1937 giving the court with unique jurisdiction exclusive jurisdiction of the actions enumerated in Section 903, does not offend the uniformity provisions the appellants invoke.
It would be anomalous if any provision of the Constitution required this court to cripple the Commonwealth in the performance of its functions by holding that the Act of 1870, supra, and the Act of 1937, supra, are invalid, and that as a result of such invalidity the Commonwealth, whose seat of government is in Dauphin County, can in prosecuting claims or in resorting to legal and judicial process in enforcing its laws resort to the Court of Common Pleas of Dauphin County only when the defendants in such proceedings reside in that County or can be served with process there. Apparently those men who framed, and the voters who adopted, the Constitution of 1874 never intended that the Commonwealth should be compelled when it is its duty to assume the role of a litigant, to depart from the seat of government and to institute and carry on its actions, in law or in equity, in that one of the State's 67 counties in which those against whom its actions are directed happen to reside.
Under the Act of 1937, supra, the Public Utility Commission could institute these proceedings to restrain violations of the provisions of the Public Utility Act and of the regulations and orders of the Public Utility Commission and to enforce obedience to those laws and regulations, only in the Court of Common Pleas of Dauphin County and that Court possessed the exclusive jurisdiction to enter its decree upon the subject matter involved. This Act of 1937 is constitutional. The decree appealed from is well supported in fact and is in obedience to the prescriptions of the law.
The decree is affirmed, costs to be paid by the appellants.