THE DEWEY HOTEL COMPANY v. THE UNITED STATES ELECTRIC LIGHTING COMPANY

THE DEWEY HOTEL COMPANY v. THE UNITED STATES ELECTRIC LIGHTING COMPANY. Equity; Jurisdiction; Equity Pdeading and Practice; Injunctions ; Adequate Remedy at Law ; Pubdic Nuisances. 1. Want of jurisdiction will be recognized by the court and given effect, even though the question is not raised in the pleading nor suggested in argument. 2. An answer under oath, though neither required to be under oath, nor the oath waived by the bill, may be used as evidence in favor of the defendant, and will 'be taken as conclusive, if not contradicted by evidence in the case. 3. A bill in equity by an electric lighting company against the District of Columbia and others for an injunction against the construction of certain conduits for electric lighting, power and steam heating service, in a public alley under a permit granted by the Commissioners, will not lie upon the ground that the complainant is a taxpayer, in the absence of anything to show that by reason of the granting and execution of the permit, the complainant will be injured or wronged in its character as a taxpayer. 4. The fact that the complainant in such a case has a contract with one of the defendants for the exclusive supply of his premises with light and steam, and the new conduit is to be used by another defendant to supply such premises with light and power, will afford the complainant no right to maintain his bill, for the remedy for any violation of its contract is at law and not in equity. 5. To entitle a private individual to an injunction restraining a public nuisance, it must clearly appear from his bill that he will sustain a special and particular injury therefrom for which he can not be compensated in damages. No. 1026. Submitted November 23, 1900. Decided January 8, 1901. Hearing on an appeal (specially allowed) by some of several defendants from an order of the Supreme Court o the District of Columbia enjoining pendente lite the construction of certain conduits under a permit from the Commissioners of the District of Columbia. Reversed. The Court in its opinion stated the case as follows: The bill in this case was filed by the appellee, the United States Electric Lighting Company, against the Commissioners of the District of Columbia, and against the appellants, the Dewey Hotel Company, Herman M. Schriener, Nathaniel McKay, and William A. Fenwick, praying a restraining order pendente lite, and, upon hearing, a perpetual injunction, against the construction of certain conduits and pipes for electric lighting, power and steam heating service, under a permit of the Commissioners of the District of Columbia, granted under and by virtue of the act of Congress of May 26,1900. The projected conduits and pipes were planned and intended to connect the premises Nos. 1326, 1328 and 1330 L street, northwest, known as Hotel Dewey, with premises No. 1008 Thirteenth street, alleged to be occupied as a private residence by Nathaniel McKay, and premises Nos. 1010 and 1012 Thirteenth street, known as the Hotel YI, operated as a hotel by one William A. Fenwick, one of the defendants below, but who has not joined in this appeal. The bill prays for the cancelation of the permit granted by the Commissioners of the District, but that relief has not been granted, and the said Commissioners have not joined in this appeal. The court below granted a restraining order pendente lite, and, upon further hearing upon bill and answer, that order was continued in force until final hearing, or until the further order of the court. It is from this interlocutory order that this appeal, by special leave of this court, is taken by some of the defendants in the cause; there having been a severance allowed. It is alleged by the complainant in its bill, that the Dewey Hotel premises were operated and managed by the Dewey Hotel Company; that the Hotel YI was leased to and operated by the defendant, William A. Fenwick, to which premises the complainant company was furnishing electric light, heat and power under a contract for the exclusive privilege of doing so for one year from the 9th day of July, 1900, and that the premises No. 1008 Thirteenth street, were occupied, controlled and managed by the defendant Nathaniel McKay as his dwelling or private residence; that neither the Hotel YI nor the McKay residence was, or at the time had been, in any manner operated by the Dewey Hotel Company; the Hotel YI being operated by and exclusively under the management and control of the defendant Fen-wick, and the McKay residence being in the exclusive occupation, operation and control of the defendant McKay, for purposes of a private residence, and wholly unconnected with the Dewey Hotel; that, consequently, the Dewey Hotel Company was not entitled to a permit, and that the Commissioners were without authority to grant any permit, for the purposes expressed in the permits issued by them on September 18 ; and that the Dewey Hotel Company intends to use the said conduits for the purpose of furnishing electric light and power to the said McKay residence and to the Hotel YI. It is then alleged that the complainant claims relief as an electric lighting company having many thousands of dollars invested in an electric plant in the city of Washington; as a taxpayer in said city, and as already furnishing electric light and power service to the Hotel YI, under a contract giving it the exclusive privilege so to do. All the defendants answered, and they distinctly controvert and deny the claims and pretensions set up by the complainant, as grounds for the relief prayed for in the bill. The Dewey Hotel Company and Nathaniel McKay join in making answer to thebill; and they aver that the Dewey Hotel Hotel Companyis owner of and conducts a hotel erected upon three building lots fronting on L street, between Thirteenth and Fourteenth streets, northwest, and running back to Stanton alley; that it also owns three building lots on Thirteenth street, adjoining each other,the more southerly of which has its side line on Stanton alley; that on this south lot is a building in which resides defendant McKay, who is general manager of the hotel company, and in which is also the office of the company. That on the two northerly lots is a hotel building, occupied by defendant Fenwick under a lease from the Dewey Hotel Company, made September 18, 1900. That the Commissioners of the District of Columbia issued to the Hotel Dewey Company a permit to lay a conduit in Stanton alley for electric wires and steam pipes to extend from the rear of the hotel property to the rear of the premises No. 1008 Thirteenth street; such conduit to be laid at the hotel company’s expense, and $200 being deposited by it to make good any injury that might occur to the surface of the alley. That the Dewey Hotel Company thereupon caused an excavation to be made, and was about to lay the conduits, when the present bill was filed by the complainant. The Commissioners of the District in their answer, among other things, aver and insist that the permit granted by them to the Dewey Hotel Company was in all respects rightfully and lawfully granted; and they say and aver, “That at the time of the granting of said permit, and as a condition thereof, the said Dewey Hotel Company made a deposit of two hundred dollars to cover the cost and expense of inspection and the restoration of the pavement in Stanton alley, which said sum of $200 is more than sufficient to restore said alley to its condition at the time of the granting of said permit, and these defendants' say that neither the complainant.nor the public will in any manner be subjected to any expense or tax whatever on account thereof. And these defendants, further answering, say that the complainant is a non-resident corporation, being incorporated under the laws of the State of West Virginia, and, as they are advised, it is without right to maintain this suit. And they further say, that the complainant has not in its said bill of complaint made any such case as entitles it to the relief prayed for, or any other relief against these defendants, and they pray the same benefit of this suggestion as if they had demurred to said bill for the want of equitjc” Mr. Arthur A. Birney and Mr. Henry F. Woodard for the appellant: 1. The claim of complainant is, in substance, that with the assent of the District Commissioners, the Dewey Hotel Company is about to lay conduits in a public alley and that this is unlawful. For such an act the remedy must be sought by the public through its proper officer, and may not be sought by the individual who does not show special injury. 10 Am. &Eng. Encyc. L.,p. 798; S. B.Co. v. Railroad Co., 4 L. R. A. 209 and note; Swanson v. Boom Co., 7 L. R. A. 673 and note; Kuehn v. Milwaukee, 18 L. R. A. 553; 1 High on Inj., Sec. 762 and cases cited; Houck v. Wechter, 34 Md. 265; O’Brien v. Railroad Co., 17 Conn. 372; Seager v. Kankakee Co., 102 Ill. 669; Bd. of Trade v. Bldg. Assn., 102 Ill. 378; Railroad Co. v. Ward, 2 Black, 485; Georgetown v. Canal Co., 12 Pet. 91; Irwin v. Dixion, 9 How. 10; Miller v. New York, 9 Wall. 385, 395; United States v. Cole, 18 D. C. 504. As taxpayer the complainant has no standing. It does not show that public funds are to be expended in this work, or that any burdens will be or can be placed upon it by reason of the work. The answers show that no such burden can arise. The distinction is recognized both in this court and in the Supreme Court. Roberts v. Bradfield 12 App. D. C. 453; Crampton v. Zabriskie, 101 U. S. 601. 2. But if the above objection be not well taken, yet the injunction should have been refused, because the bill made no case of irremediable injury either to the public or to any individual should the conduit be completed. This was necessary. Irwin v. Dixion, 9 How. 10, 29. So, also, the answers swore away all the supposed equities of the bill. Mr. J. J. Darlington for the appellee : 1. The claim of the appellant that the complainant has no standing in equity, jurisdictionally, to maintain its bill, is based upon the following propositions: (a) That injunctive relief against a public nuisance can only be sought by the public, though its proper officers. (b) That the bill shows no injury to the complainant as a taxpayer, (c) That the complainant shows no special injury. The negative of the first and second of these propositions has been declared by the Supreme Court of the District of Columbia in a number of well-considered and heretofore accepted decisions. 24 Wash. Law Rep. 775; 26 Wash. Law Rep. 19. See, also, Railroad Co. v. Ward, 2 Black. 492. The rule allowing taxpayers to maintain bills under circumstances like the present is well settled in so far as the lower court could settle it, by a long series of decisions, some of the latest of which are above referred to, and the same view is laid down by many authorities. Dill. Mun. Corp., Secs. 419, 922; 1 Pom. Eq. Jurisprudence, Secs. 257, 270, 273; The Liberty Bell, 23 Fed. Rep. 845; New London v. Brainard, 22 Conn. 553; McCord v. Pike, 121 Ill. 288; Merrill v. Plainfield, 45 N. H. 126; Crampton v. Zabriskie, 101 U. S. 601. As to the contention that complainant shows no special injury, it is to be noted in the first place that the appellant uses the term “ irreparable damage ” in the sense of some damage which can not be compensated for by a money judgment. This is not the correct meaning of the term. It is any species of injury involving an unlawful and continuous violation of the plaintiff’s right, or the commission of a wrong which contemplates such violation. Electric Lighting Co. v. Metropolitan Club, 5 App. D. C. 545; 10 Am. & Eng. Encyc. (1st Ed.), 836-7. The question, therefore, is whether the complainant has a right here which it is proposed to make the subject of a continuous violation. That under the circumstances of this case, the grant of a permit and the construction of a couduit to be used for the purpose of connecting premises not both “ owned and operated by the permittee,” and for the supplying of power for other purposes than “the use of the permittee,” and for the purpose of renting the conduit or pipe or the service over it to other persons, thus enabling the defendants to enter into a competition with the complainant in the business of supplying light and power which is wholly unauthorized by law and is in terms prohibited by the act under which the permit is applied for, is a damage to the complainant in every respect different from any damage or injury suffered by the public at large, must be too plain for argument. 2. Every word used in an act will be given some effect, and Congress will not be presumed to have used any words to no purpose. Platt v. Railroad Co., 99 U. S. 48; United States v. Landram, 118 U. S. 81, 85; Dist. of Col. v. Sisters of the Visitation, 15 App. D. C. 300; Mackall v. Dist. of Col., 16 App. D. C. 301. Under a statute which authorizes a permit to one who both owns and operates the premises he desires to connect, a permit can not be rightly granted to one who owns but does not operate his premises. [MAJORITY — Mr. Chief Justice Alvey] Mr. Chief Justice Alvey delivered the opinion of the Court: By the act of Congress of May 26, 1900, under which the permit in question was granted, it is provided that the Commissioners of the District of Columbia are authorized to grant permission to lay conduits for the transmission of electric power, and pipes for the transmission of steam, in alleys in the District of Columbia, under the following conditions, namely: (1) The conduits or pipes shall be laid entirely within a square or block, and shall not cross or enter any avenue, street or highway. (2) The conduits and pipes shall be located as directed by the Commissioners, and be laid under their inspection; and the cost of such inspection, together with the cost of repaving all improved pavements disturbed in connection with said work, shall be paid in advance by the party desiring to lay said conduits or steam pipes. (3) The conduits or pipes shall be used only to connect the premises owned and operated by the permittee, and no power or steam shall be supplied therefrom for any other purpose than the use of the permittee. (4) The permittee shall not rent the conduit or pipe or any portion thereof. By section 2 of the act it is provided, that on violation of any of the above provisions or restrictions, the Commissioners shall require the permittee, after thirty days’ notice, to abandon the use of said conduits or pipes and remove them from the alley or alleys, in which they are located, and if said permittee shall neglect or refuse to remove said conduits or pipes and place the surface of the alley in good condition within thirty days after the date of said notice, the said permittee shall be deemed guilty of a misdemeanor, and shall be liable to a fine of ten dollars for each and every day that said conduits or pipes are allowed to remain in the alley, or the said alley shall remain out of repair, which fine shall be recovered in the police court of said District, in the name of said District, as other fines and penalties are now recovered in said court. And the third section of the act provides, that Congress shall have the right to alter or repeal the act at pleasure. The permit granted to the Dewey Hotel Company, was to construct an electric conduit and to lay pipes for the transmission of steam, in alley, square 248, from Dewey Hotel to premises Nos. 1008, 1010 and 1012 Thirteenth street, N. W. The permit was explicit in declaring that it was given subject to all the provisions of the act of Congress of May 26, 1900, regulating permits for private conduits in the District of Columbia. There is nothing apparent on the face of the permit to show that any of the conditions or restrictions of the statute had been violated, or were authorized to be violated, in the issuance of the permit; and if there has been any such violation, it must be in the use or application of the permit by the holders thereof to premises within the prohibition of the statute. The act of Congress authorizing the granting of the permit has prescribed the penalty, and the mode and manner of trial and punishment, for the violation of any of the provisions and restrictions of the act. There is, therefore, no want of legal remedy for the violation of the statute. Why, then, should the jurisdiction of a court of equity be invoked? It is doubtless true, as decided by many cases, that a court of equity will sometimes, under special circumstances, interpose to prevent the municipal authorities from transcending, or from making an illegal use of, their powers, and relieve against their unauthorized or illegal acts. But this is on the established principle, that there must be some reason to justify a resort to the equity jurisdiction, such as the want of an adequate remedy at law, multiplicity of suits, irreparable injury, breach of trust, or the like. This general doctrine would seem to admit of no exception, with the qualification just stated; and it has been maintained by the highest authority. Mayor of Brooklyn v. Meserole, 26 Wend. 132; Mooers v. Smedley, 6 John. Ch. 28; Dows v. Chicago, 11 Wall. 108. Indeed, as said by the Supreme Court of the United States, in the case last cited, “this upon principle must be the case. The equitable powers of the court can only be invoked by the presentation of a case of equitable cognizance. There can be no such case, at least in the Federal courts, where there is a plain and adequate remedy at law.” The question whether municipal and public corporations are acting, or have acted, within the limits of the authority which the law confers upon them involves an examination of purely legal principles, unmixed with equity. Therefore, in general, a court of equity has no jurisdiction to restrain, review, or set aside, even if irregular or illegal, the proceedings of such corporation. This jurisdiction belongs, except in very special cases, to the supervisory powers and control of the courts of common law. 2 Dill. Mun. Corp., Sec. 907; Hannewinkle v. Georgetown, 15 Wall. 547. Therefore, if upon review of the case as presented by the complainant it appeal’s that there is nothing in the case that justifies the exercise of equity jurisdiction, or to grant an injunction, it is the duty of the court to recognize the fact, and to give it effect, even though the question were not raised in the pleading nor suggested in the argument of counsel. Allen v. Pullman Palace Car Co., 139 U. S. 658, 662. In this case, however, the question of the jurisdiction of the court is raised both in the pleading and the argument of counsel. And the answers of the defendants under oath, though neither required to be under oath nor the oath waived by the bill, may be used as evidence in favor of the defendants, and will be taken as conclusive, if not contradicted by evidence in the case. Conley v. Nailor, 118 U. S. 127. The plaintiff wholly fails to show any ground upon which it can rightfully claim relief of a court of equity. The fact that it has a large amount of capital invested in the establishment and maintenance of an electric.lighting plant in the city of Washington, certainly furnishes no ground for the exercise of equity jurisdiction; nor does the allegation that the complainant is a taxpayer in the District furnish such ground for relief. The complainant does not allege, or attempt to show, that by reason of the granting and execution of the license or permit to the Dewey Hotel Company, it will be injured or wronged in its character as a taxpayer. The principle is certainly well settled, that a taxable inhabitant may resort to a court of equity to have restrained a municipal corporation, or its officers, from transcending their lawful powers, or from violating their legal duties, in any manner which will injuriously affect the taxpayers, such as making an unauthorized appropriation of the corporate funds, or an illegal disposition of the corporate property. The principle has been clearly enunciated by the Supreme Court of the United States, in the case of Crampton v. Zabriskie, 101 U. S. 601, 609. In that case the court said, speaking by Mr. Justice Field: “Of the right of resident taxpayers to invoke the interposition of a court of equity to prevent an illegal disposition of the moneys of the county, or the illegal creation of a debt which they in common with other property holders of the county may otherwise be compelled to pay, there is at this day no serious question. 'The right has been recognized by the State courts in numerous cases; and from the nature of the powers exercised by municipal corporations, the great danger of their abuse and the necessity of prompt action to prevent irremediable injuries, it would seem eminently proper for courts of equity to interfere upon the application of the taxpayers of a county to prevent the consummation of a wrong, when the officers of those corporations assume, in excess of their powers, to create burdens upon property holders.” And in support of the doctrine thus laid down, the learned justice refers to the work of Judge Dillon, on Municipal Corporations. In this case, there was nothing done, or proposed to be done, that could create burdens upon the taxpayers; for it is fully shown in the answer of the Commissioners that money more than sufficient was placed on deposit, by the Dewey Hotel Company, to restore and keep in repair the alley, after laying the conduits and pipes therein. The mere fact of being a taxpayer, therefore, confers no right to maintain this bill. Nor does the allegation that the complainant has a contract with defendant Fenwick for the exclusive supply of light and steam to be used in the premises Nos. 1010 and 1012 Thirteenth street, N. W., for the period of one year from July 9, 1900, afford any right to maintain this bill. That allegation is denied by Fenwick in his answer, and it is also denied in the answer of the Dewey Hotel Company. But if the allegation were conceded to be true, it would not alter the case. If there be any violation of such contract as that alleged with Fen-wick, the remedy would be at law, not in equity. All other grounds alleged for equitable relief being insufficient, the present bill must be supported, if supported at all, upon the ground that the laying of the conduits and pipes in the public alley, in square No. 248, one of the public ways of the city, constitutes a public nuisance. But then the question arises, how does it appear that the complainant has or will suffer any special and particular injury, as distinguished from any injury that the general public may suffer, by reason of the laying of the conduits and pipes in the alley? The complainant neither avers nor attempts to prove any special injury to itself, occasioned by any obstruction of the alley. Indeed, it is not averred or pretended that any person will be obstructed in the use of the alley, because of the laying of the conduits and pipes therein. In the case of a bill filed by a private individual to restrain a public nuisance, it must clearly appear from the allegations of the bill that the plaintiff will sustain a special and particular injury therefrom, and that such injury is or will be irremediable, as in the case of a purely private nuisance. There must be a clear necessity for the injunction in the light of inability to be compensated for the wrong. Otherwise a court of equity will not interfere. This is the established doctrine of the decided cases upon the subject, and especially of cases decided by the Supreme Court of the United States. City of Georgetown v. Canal Co., 12 Pet. 91; Irwin v. Dixion, 9 How. 10; Railroad Co. v. Ward, 2 Black, 485; Sparhawk v. Railway Co., 54 Pa. St. 401. None of the requisites are shown in the bill to entitle the complainant to an injunction or to a restraining order, and therefore the restraining order appealed from must be reversed, and the cause be remanded to the court below that the bill may be dismissed; and it is so ordered. Order reversed and cause remanded. On January 16, 1901, a motion was made on behalf of the appellees to modify the decree of this court. On March 8, 1901, the motion was overruled, Mr. Chief Justice Alvey delivering the opinion of the Court: In this case there has been a motion made by the appellee to modify the decree that was made by this court, by striking out and omitting therefrom the direction to the court below to dismiss the bill of complaint. The appeal to this court was from an interlocutory order granting a restraining order or injunction pendente lite. The injunction, however, was the principal relief sought by the bill; and this court held that the bill made no case for equitable relief whatever; that there was an entire want of ground shown for the exercise of equitable jurisdiction, and therefore the order appealed from was reversed, and the bill ordered to be dismissed. In such case, why or for what purpose should the bill be retained ? Perhaps the better-practice would be in such cases, instead of remanding the cause, with direction to the court below to dismiss the bill, for this court at once to dismiss the bill and put an end to the litigation. That would be according -to established practice in appellate courts, and especially in the United States Circuit Courts of Appeal, in such cases. Mast, Foos & Co. v. Stover Manfg. Co., 177 U. S. 485, 494, 495; Green v. Mills, 25 U. S. App. 383; Knoxville v. Africa, 47 U. S. App. 74. In the very recent case of Castner v. Coffman, 178 U. S. 168, the practice was fully approved;-the Supreme Court saying that if the bill be obviously devoid of equity upon its face, and such invalidity be incapable of remedy by amendment, they knew of no reason why, to avoid further litigation, the court might not order the bill to be dismissed. See, also, the case of Burton v. Marshall, 4 Gill, 488-9, for similar practice. There is nothing in the allegations of the bill, or in the nature of the case itself, to justify the opinion that the bill could be so amended as to entitle the complainant to the relief prayed. The motion to modify the decree must therefore be overruled, ; and it is so ordered.