Fritz v. Presbrey , 44 R.I. 207 ( 1922 )

I agree with the opinion of the Court, in which they hold that the Superior Court has jurisdiction to hear and determine the question of the reasonableness of the ordinance; but respectfully dissent from their conclusion reversing the decrees granting the preliminary injunctions, and my reasons for dissenting are as follows:

As has been stated, these appeals are before this court upon the respondents' appeals from decrees of the Superior Court granting preliminary injunctions, restraining the respondents from enforcing an ordinance passed by the city council of Providence.

It appears from the bills of complaint that the complainants operate motor buses in said city, and they allege that the ordinance is unreasonable, unjust and discriminatory; that it is a gross abuse of regulatory power, and that its enforcement will result in the destruction and prohibition of their business, and cause them irreparable loss, injury and damage.

The respondents do not attack the insufficiency of the allegations of fact in the bills of complaint, nor their want of equity, by demurrer, as they should do, if such were apparent upon an inspection of the bills of complaint. Allen v.Woonsocket Co., 11 R.I. 288. On the contrary, they impliedly admit the sufficiency of the bills by filing answers, admitting some of the facts alleged in the bills, and denying others, and the cases are ready for the framing of issues of fact, and the trial thereof.

At the hearing in the Superior Court on the question of fact, — the unreasonableness of the ordinance, — upon the testimony adduced, the Court was of the opinion that the evidence required the granting of preliminary injunctions to protect the rights of the complainants from irreparable injury and damage. The respondents, deeming themselves aggrieved by the granting of said injunctions, claimed appeals therefrom to this court, as authorized by Sec. 34, Chapter 289, General Laws 1909. This section, permitting an appeal from the granting of an injunction in the Superior Court, provides, among other things, that "The appeal shall transfer to the Supreme Court only the question whether the decree appealed from shall be affirmed, reversed or altered." Said section also requires the appellants to "file a claim of appeal, with a statement of the reasons therefor."

The respondents state, as the only reasons for their appeals (1) that the decrees granting the injunctions are contrary to law; and (2) that the Superior Court improperly granted injunctions by mistake and error of law. In their printed brief the respondents state the questions raised by them under their reasons of appeal as follows:

"1. Was the question whether the ordinance was reasonable a question that could be determined by the Superior Court?

"2. Did the Superior Court have any discretion to grant an injunction?"

The respondents argue under question 1 that "the question whether the ordinance was reasonable was not a question that could be determined by the Superior Court"; and under question 2 they argue that "the Superior Court had no discretion in the matter of granting an interlocutory injunction." In concluding their argument of these questions, on page 41 of their brief, they say, "This line of consideration, which need be pursued no further, reduces to an absurdity the suggestion, that ordinances of this character, enacted in pursuance of a statute of the character here under discussion, are subject to the test of a court's approval.

"The Superior Court, in granting these preliminary injunctions, committed error in law."

This court, after careful consideration of the argument of the appellants, has decided that the ordinance in question, being passed under general legislative authority, is subject to judicial review as to its reasonableness, and therefore the Superior Court has jurisdiction of the question.

It being held that the Superior Court has jurisdiction of the subject matter, its authority to issue a preliminary injunction, in the exercise of judicial discretion is inherent and unquestionable.

In the claims of appeal it is not stated that the decrees of the Superior Court in granting the preliminary injunctions were against the evidence, or the weight thereof; and the only questions raised by the respondents in this court in their claims of appeal, and argued in their brief, are those of law denying the jurisdiction of the Superior Court to hear and determine the question of the reasonableness of the ordinance, and the power of that court to grant an injunction.

In trying to sustain their appeals, the appellants are restricted to the reasons stated by them in their claims of appeal.

The effect of an appeal in an equity cause, and the necessity of a sufficient statement of the reasons of appeal, has been discussed by this court in a carefully prepared opinion in the cause of Vaill v. McPhail, 34 R.I. 361, wherein the court states on pages 363, 364, "If, however, the appeal removes nothing to this court except the errors appearing upon the record and complained of by the appellant, then the statement of the reasons of appeal should be specific; should be as full as the claim of the appellant, and must be regarded as the jurisdictional basis of the cause in this court, limiting all subsequent proceedings here." The court further says, page 371, "Certain incidental and subordinate jurisdiction over the cause is given to this court pending the appeal, but the general effect of the appeal is to bring before the Supreme Court for review merely the errors stated in the appellant's reasons of appeal." And the court holds that "In conformity with our view of the nature of equity appeals in this State, we hold it essential that the appellant should clearly indicate in his reasons of appeal the particular errors of the Superior Court of which he complains and which he seeks to have reviewed. These reasons should be stated separately, and specifically. The statement of reasons of appeal which the statute requires is a statement of the erroneous rulings, orders or decrees of which the appellant complains." Page 373. The opinion concludes the discussion of this subject by saying, "To the consideration of the alleged errors which they have thus designated they will be restricted in the proceedings before this court." Page 376.

There is a presumption in favor of the validity of the ordinance; but this presumption is a rebuttable one and may be overcome by testimony produced by the person attacking its validity. In the instant cases the complainants attacked the validity of the ordinance and introduced sufficient testimony to require the court, in the exercise of its discretion, to enter decrees granting preliminary injunctions to protect the rights of the complainants from irreparable injury and damage.

The respondents do not claim that the entry of these decrees was contrary to the evidence or to the weight thereof and, under their limited reasons of appeal, this ground cannot now be considered as a reason for reversing said decrees, and the respondents have not argued such a ground.

As the question of the sufficiency of the evidence showing the unreasonableness of the ordinance to require the issuance of the injunctions is not before this court on the reasons of appeal, I refrain from discussing it.

This court having decided that the Superior Court had jurisdiction of the question of the reasonableness of the ordinance; and as the question of its reasonableness is dependent upon the testimony introduced by the complainants and respondents; and the court having found that the testimony required the granting of the preliminary injunctions to protect the rights of the complainants from irreparable injury and damage; and there being no claim by the respondents that this finding of the court is against the evidence or the weight thereof; under the law, and the issues before this court, the decrees appealed from should be affirmed.