D. C.] Argument of Counsel. trict of Columbia, from an order of the Supreme Court of the District of Columbia overruling a motion to vacate a temporary restraining order and continuing the same until final hearing, and also on a motion by the appellee to dismiss the appeal. Motion to dismiss overruled and order appealed from reversed. The facts are sufficiently stated in the opinion. Mr. Andrew B. Duvall, Attorney for the District of Columbia, and Mr. C. A. Brandenburg, Assistant Attorney, for the appellants. Mr. J. M. Wilson, Mr. A. S. Worthington and Mr. A. A. Hoehling, jr. for the appellee. 1. The appeal should be dismissed. This is the ordinary case of a motion by a defendant to dissolve a pending injunction after he has filed his answer. The practice in this regard has long been settled, and will be found discussed in 3d Daniell's Chancery Pleading and Practice (3d American edition), top pages 1786 to 1788, and in 2d Beach's Modern Equity Practice, sections 781 to 786. The order appealed from expressly overrules the motion " to dissolve the restraining order heretofore granted." It is submitted that the fact that the order appealed from also continues the restraining order cannot affect the matter, because the overruling of the motion to dissolve left the prior order in force as a matter of course. 2. The appeal is from a preliminary injunction. We understand this court to hold that in appeals from interlocutory orders, where the court below is called upon to exercise its discretion, this court will not reverse such an order unless the case is a plain one. The United States Electric Lighting Company v. The Metropolitan Club, 6 App. D. C. 536. Mr. Justice SHEPARD delivered the opinion of the Court: 1. This is an appeal from an interlocutory order. On August 25, 1900, the Washington, Alexandria and Mount Vernon Railway Company filed a bill against the District commissioners to enjoin the execution of an official order to complainant to remove an electrical switch and appliances erected by it at the intersection of Maryland avenue and Fourteenth street southwest. On the same day an order was made restraining the defendants, as prayed, until the further order of the court upon hearing to be had on September 12, 1900. The next thing shown in the record is the sworn answer of defendants, filed October 13, 1900, controverting the material allegations of the bill and explaining the grounds of their action. April 1, 1901, the court overruled defendants' motion to vacate and discharge the restraining order and further ordered that the same be continued till the final hearing. The defendants, treating this as an order for an injunetion, took an appeal and perfected the same within the time required by law. The appellee moves to dismiss, on the ground that the appeal is not from an order granting an injunction within the contemplation of the seventh section of the act creating this court and defining its jurisdiction, but is merely from the interlocutory decree refusing the motion to dissolve the restraining order, and hence is not appealable save by special leave of the court. It is clear that the original order was intended to operate as the ordinary temporary restraining order pending notice of preliminary hearing. Without such hearing and without special order continuing it in force, it seems to have been treated as continuing until further order might be made. The defendants' motion, after answer, brought the question on for hearing whether the order should be dissolved or should remain in force pendente lite. Though continued as a restraining order it had all the consequences of an injunetion. Being in substance an injunction, it was clearly ap pealable. U. S. Elec. L. Co. v. Met. Club, 6 App. D. C. 536, 543. And the appeal, though technically from the order overruling the motion to dissolve, brings up the only question involved, namely, the propriety of the temporary injunction. Parsons v. Hill, 15 App. D. C. 532, 539. The motion must, therefore, be overruled. 2. Passing now to the merits of the cause, we find no material conflict in the facts alleged in the bill and answer. The appellee is a corporation of the State of Virginia authorized to construct and operate a passenger railway, operated by electric power, between the Potomac river and Mount Vernon. By act of Congress of August 23, 1894 (28 Stat. 494), the corporation was authorized to lay double tracks on certain streets in the city of Washington, commencing on B street between Seventh and Eighth, northwest, thence westward along B to Thirteen-and-a-half street, thence northward on Thirteen-and-a-half street to E street, by single track, thence westward on E to Fourteenth street, on a single track, thence southward on Fourteenth street, using the tracks of the Belt Line street railway to the Potomac river, thence across the same. This included the necessary switches, turnouts and other mechanical devices, "the number and location of which shall be approved by the commissioners of the District of Columbia." (Sec. 1.) "All rails, electrical and mechanical appliances, conduits, stations, and so forth, shall be of approved pattern and subject to the approval of the District commissioners." (Sec. 4.) Overhead wires are prohibited, except for 400 feet at a slip for ferry, etc., at foot of Fourteenth street (Secs. 5 and 1). The power to make all needed trenches and excavations is subject to the condition of, "having first obtained the permission of the commissioners of the District." (Sec. 7.) "The said company shall run street railway cars propelled by underground cable or underground electric power." * * * "Provided: That whenever the foregoing route or routes. may coincide with the route or routes of any duly incorporated street railway company in the District of Columbia Opinion of the Court. [18 App. the tracks shall be used by both companies, which are hereby authorized and empowered to use such tracks in common, upon such fair and equitable terms as may be agreed upon by said companies; and in the event the said companies fail to agree upon equitable terms, either of said companies may apply by petition to the Supreme Court of the District of Columbia, which shall immediately provide for proper notice to and hearing of all parties interested, and shall have power to determine the terms and conditions upon which and the regulations under which the company hereby incorporated shall be entitled so to use and enjoy the track of such other street railway company, and the amount and manner of compensation to be paid therefor." (Sec. 11.) Section 21 provides: "That all plans relating to the location and construction of said railway shall be subject to the approval of the commissioners of the District of Columbia, or their successors, and all work shall at all times be subject to their supervision." The operation of the new railway began in May, 1896. In Virginia it operated with an electric current of 550 volts from grounded generators with an overhead trolley. This crossed the Long bridge and terminated at the plow pit located at the foot of Fourteenth street. The District commissioners required it to operate the line in the city from nongrounded generators, and this forced the company to obtain power from the United States Electric Lighting Company, which was working in the District. The volt current to be obtained from that company was one of 250 volts, and the appliances of the cars were adapted thereto. Under an act of Congress of June 24, 1898 (30 Stat. 488), the Anacostia and Potomac River Railroad Company acquired the Belt Line franchise, tracks, etc., and reconstructed the tracks for the underground electric system of propulsion as required by Congress. This company and appellee being unable to agree upon terms of joint operation and maintenance of the tracks on Fourteenth street, between E street north and B street south, both appealed to the Supreme Court of the District for a settlement of the same as provided in section 11 aforesaid of the act of 1894. The commissioners were not parties to the proceeding. April 25, 1900, said court made a decree. It appears that the current of the Anacostia company, which was necessary to be used for the operation of both companies, was of 550 volts. This necessitated changes, on the part of the appellee, in the appliances of its. cars, and it was compensated therefor. Said decree contains the following clause upon which the appellee relies: "Said Anacostia and Potomac River Railroad Company shall, at its own cost, put in electrical switches at E street north, and B street north and at B street south, to enable the Washington, Alexandria and Mt. Vernon Railway Company to connect its own source of supply with its own conductor bars for use in case of an accident, or in the event that the said Anacostia and Potomac River Railroad Company shall fail to furnish the current required as aforesaid." The Anacostia company operated a metallic system with nongrounded generators, the same as the United States Electric Lighting Company, which was the then source of supply of appellee for its city service. Some time early in June, 1900, appellee installed a switch and connections at the intersection of Fourteenth street with Maryland avenue, so as to obtain an operating current from its Virginia power plant. No permission was asked of the commissioners for this installment. Hearing of it, they addressed the following communication to the appellee on June 22, 1900: 66 DEAR SIR: The commissioners are officially advised that your company has connected its grounded system with the metallic system within the District of Columbia. Not only was this work done without the approval of the commissioners, as required by the provisions of your charter, but is, in the opinion of the commissioners, both objectionable and unlawful, and I am directed to notify you to remove within ten days from this date all constructions connected with this work. "Respectfully, " (Signed) W. TINDALL, Secretary." |