The San Francisco Call. Newspaper, March 13, 1896, Page 9

THE SAN FRANCISCO CALL, FRIDAY, MARCH 13, 1896. e ———————————————————————————————————————————————————————————————————————————————————————————————————————————————————————————————————————————————————————————————————————————— MUST SUE IN CALIFORNIA, Claus Spreckels Has Gained a Notable Vic- tory. DEMURRER OVERRULED. It Contained- the Gist of the Hawaiian Company's Litigation. RIGHTS OF FOREIGN COURTS. When AIl Parties Are Citizens of This State Suits Cannot Be Brought Elsewhere. The demurrer submitted by C. A. Spreck- | els to the complaint of Claus Spreckels has | been overruled and his motion to dissolve | the temporary injunction issued by Judge Bahrs and to strike out certain portions of lai ve been denied. us Spreckels grew out of an action brought in the courts of Haw: by the Hawailan Comme and Su Company, which is a Cal tion doing business in Claus Spreckels. The suit was for ration of trust regarding certain property owned by Mr. Spreckels in theisland of Maui and for the conveyance of that prop- erty to the corporation.” It wasclaimed b the corporation that the land owned by Mr. Spreckels had been acquired by him while he was one of its « nd that he on. was brought to the Is in this Cit , Detm 1 ic { said 6000 acr What Claus Spreckels Rejused to Do. an_agreement with Hermann Schussler, Fred- | erick Low, Willisam F. Babcock and Hermann | Bendel, all of San Francisco, to establish a Jarge sugar plantation on the aforesaid island of Maui, and to secure the necessary land and water supply, and to form a corporation under the laws of California to own and to operate such 8 plantation, and that about September 30, 1878, such corporation was formed by said persons, under the name of Hawaiian Com- mercial Company, after said Claus Spreckels had obtained, in pursuance of the aforesaid agreement, certain grants and leases of land, water franchises and contracts for the use and benefit of said plantation. The Dircctors’ Resolution of 1875. (b) That about October 24, 1878, said Claus Spreckels executed & deed of trust declaring that he held all of the property, deeds. grants, leases, contracts and franchises of, concerning, and connected with said plantation, to the use and for the benefit of said company, to be conveyed 1o it upon dema: 7 (¢) That on Ociober 8, 1878, the directors of id company adopted & Tesolution authorizing | said Claus Spreckels to lease, sell or exchange | any of said property upon such terms and in such manner as he might deem best, in_ his own name and as his own act, and providing that said company would accept from him as and for a full and complete performance of the obligations imposed on him by said deed of trust, so- much of the property described therein as might remain in his hands when demand was made upon him for & transfer, together with all proceeds received by him for any disposition of the property in said instru- ment described. Siz Thousand Acres in Dispute. (@) That said Claus Spreckels was at all | times the owner of & majority of the stock of said company and the managing director thereof, and had the entire direction and con- trol of the affairs thereof, and continued to ac- quire in his own name at the expense of said company, and for its useand benefit, certain | lends, rights of way | | other leases and grants of vay | and wateron the island of Maui, including the aforesaid 6000 acres of land in dispute. ©) Thaton March 31,1882, new corpora- | tion was formed under the laws of California, | under the name of the Hawailan Commercial | and Sugar Company,and the new compary | duly purchased all the assetsof the old com- | pany, and recerved an assignment of the afore- said deed of trust, (f) That by deeds of September 25, 1882, and Fevruary 183, said Claus Spreckels pre- tended to v to the new company “‘all | and singular the lands, tenements, heredita: menis, rights, liberties, iranchises, powers and authorities then vested in or &cquired” by him, but in fact he failed to convey the afore- of land. That in 1894 it was ascertained for the first time that seid Claus Spreckels had failed to convey to the said Hawaiian Commercial and Sugar Company the aforesaid 6000 acresof land and had failed to account forand pay over | to said company the moneys he had received therefrom. Thereupon a demand was duly made upon bim that he should so convey said land snd sccount to said company and pa over said moneys, all of which he then refused and ever since has refused to do. tiff then proceeds to deny specifi- he allegations in the company’s 1t in its Hawaiian suit concerning the 5000 acres of land, and he sets forth e circumstances under which he ac- ed title to said land and claims that he1s suit here s aland Sugar and for him the the Hawaiian C pany and Ru gal bega nmer Wilson, Ch r, Rudolph preckels and B. J. er, the direct- | all of the e company ding the land i and asking for an injunction g them from proceeding in the B the ground that the rought at the mstance Spreckels, who, it al controller of the 1 and Sugar Com- t was alleged in the complaint that the Hawaii had becn brought in fur- rerance of a systematic pian by which C.A. reckels has for years annoyed his father, Claus Spreckels. It was further urged that it was iniquitous for citizens of this State to attemnt to drag another citizen of | this State into a foreign jurisdiction to answer 1o a suit which must u nately be determined by the laws of the place of residence of all parties and where all of the contracts and obligations, if any, were | entered into by Claus Spreckels. It was | also alleged that Claus Spreckeis could not ¢ process of the courts of Hawa e the testimony wh would be iven in the foreign courts, and that all of the testi- mony couid be given in the courts here. OniNovember 21 Judge Bahrs issued an injupction as prayed for and the h fendants demurred and moved to strike out various parts of the complaint and _to di colve the injunction granted by Judge ney did, onl rd very fully | reeler for the defendants motions raisi les of law, w zued by W and D. M. Delmas for the plaintiff. On | the part of the defendant it was contended that as the 1 which w4 it to be recovered was in Hawaii the suit was properly brought there, and that section 3428 of the Civil Code of this State, which declares that an injunction shall not be granted to stay proceedings in another court which ‘have already been com- menced, prohibited the ¢ s here from enjoining the defendants from continuing in their proceedings in Hawaii. To this the plamtiff replied generally that it made no difference where the land in question was situated, our own courts had the power to require citizens of this te to do all things necessary to protect the rights of other citizens of this State, even to compelling the transfer of land, and further that no citizen shounld in good conscience be permitted to bring vexatious suits in foreign courts wh could be better brought and more advantageously tried in the courts of this State. As to thi m that the court was denied jurisdic- tion by the provision of the Civil Code, the plaintiff urged that the constitutional provision, which gives to the Superior courts of this State jurisdiction in all cases in_equit above any provision which the Legislature could make; that the constitutional provision had been ex- pressly declared by the Supreme Court of this State to give the Superior courts ex actly the same jurisdiction that was exercised by the High Court of Chancery in England at the time ot the adoption of the constitution; that the High Court of Chancery had always restrained citizens of England from prosecuting iniquitous suits against other citizens in foreign courts; that this practice had been adopted by the courts of the United States and of the various Statesof the Union and that on general broad equity pri ciples the power was in the courts of this State to protect its citizens from wrongs on the part of other citizens, no matter whether those wrongs were committed here or committed elsewhere. Judge Trouttin his decision yesterday morning decided thatthe plaintiff wasright in all of his contentions, and that the de- fendants as.a matter of law had no ri to require him to go two-thousand miles to answer their alleged claims against him. This means that the rights of the parties to the suit will be tried here, where all of the parties live and where all of the obli- gations arose. In the Superior Court of the City and County of San Francisco. State of California, Depart- ment 6. Hox. James M. TrovtT, Judge. CLAUS SPRECKELS, Plaiintiff, HAWAITAN COMMERCIAL AND § corporation), RUSSELL J. W FORD 8. WILSON, CHARL Y poLpi SPRECKELS and B. J. HOFFACKEE, De- fendants. z DELMAS & SHORTRIDGE, Attorneys for Plaintiff. GUY C, EapL and C. 8. WHEELER, Atiorneys for Defendants. The Plaintiff, Claus Spreckels, seeks to ob- tain a decree of court enjoining the defendant corporation (Hawailan Commercial and Sugar Company) and its directors from prosecuting the corporation’s action which was commenced on October 1, 1893, and is now pending in the Cirenit Court of meflrim Judicial Circuit of ublic of Haweii. ll']’le’nr:pwmnlnim substantially alleges as fol- 10;‘ That the defendant corporation (created and existing under the laws of California) be- gan its suit in the Hawaiian republic for the alleged purpose of obtaining a decree of court eclanng said Claus Spreckels to be a trustee 10 the said corporation’s use of the fee simple of about 6000 acres of land situate on the island of Maui, in said republie, and directing him to execute and deliver to said corporation « deed of said property, and also to @ccount for and pay over to it . money received by him as rent, issues and profits thereof since the time when he acquired title thereto. Points in the Corporation’s Complaint. AR COMPANY (a s Moux | 1894, he sold his stock and ail his interest in | led to hold the same in his own name and to and for his own use, together with a ¢s received therefrom 28 rents or profits therwise. egation as to Right and Title. And plaintiff further alleges thatin January, | said Hawalian Commercial and Sugar Com- pany to C. A. Spreckels, and said C. A. Spreck- | els has ever since had the controlling interest | in said company; and that the directors of | said company ever since have been named by | him, and have in every way acted in subordi- | nation to his wishes and directions, and have exercised but nominal functions, and have in fact, i1 not in law, delegated and surrendered all their powers and the whole management | of the affairs of said company to C. A. Spreck- | els. And thatsaid C. A. Spreckels from 1878 to 1893 was perfectly familiar with all the affairs of plaintiff, and with every fact and | circumstance attending the acquisition by | plaintiff of the title in fee to the aforesaid six thousand acres of land, and that he has always well known that said company has never had | any right or title to said land either in law or in equity, and that said C. A, Spreckels insti- gazed and caused the-board of directors of said | company to authorize and direct the institu- | tion and prosecution of the aforesaid action against plaintiff in the courts of the Hawaiian Islanas in pursuance of & plan to harass and annoy plaintiff and to place hin ai a disad- vantage in the maintenance of his defense to such action. | Defendants Demur'to the Action. | In support of their demurrer the defendants | 8 urge as one.point that section ‘ subdivision 1 of our Civil Code is a bar to vlaintiff’s action. | The subdivision of the section cited reads: | #3423. An injunction cannot be granted. 1. To stay a judicial proceeding pending at | the commencement of the action in which the | injunction is demanded, uniess such restraint is necessary to prevent s multiplicity of such proceedings.”” In respon that the I to this point plaintiff contends lature intended in this provision that one court shall not and not that & court may not by injunction | restrain the personal actof & party to the ex- tent of commanding him to proceed no further with his suit. Authority of the Court in Foreign Lands. To sustain this distinction plaintiff refers to sllowing language in “Story’s Equity | sprudence,” (vol. 2, section 899 1 It has sometimes been made & question whether | courts of equity have authority to stay proceed- | ings in the coirts of foreign countries. Nothing | can be clearer than the proposition that the courts ‘ of one country cannot exercise avy control or superintending authority over those of another country. The- independence, equality and sov- erignty of every country woula repudiate any such interference as inconsistent with its own supremacy within its own ter rial domains. But although the courts of one country have no authority to stay proceedings in the courts of another, they have an undoubted authority to control all persons and | things w n their own territorial limits, When, therefore, both parties to a suit in a foreign coun- | try are resident within the territorial limits of an. | other country, the courts of equity in thelatter | may act in personam upon those parties and direct them by injunction 1o proceed no further in such suit. In sucn & case these courts act upon ac- | knowledged principles of public law in regard to | jnrisdiction. They do not pretend to direct or con- trol the foreign court, but thout regard 1o the situation of the subject matter of the dispute they | consider the equities between the parties and de. cree in personam according to those equities, and | enforce obedience to their decree by process in per- | sonam. Hence it s the known habit of courts of | to relieve in cases of contracts and other s respecting 1ands situated in foreign coun- tries. Jurisdiction to Restrain by Injunction. The case of Engel vs. Scheuerman, decided in 1869 by the Supreme Court of Georgia (40 | 211)is also cited. The court there says: 'his bill is not filed for the purpose of restrain- ing the proceedings of the court of New York; the courts this State have ro jurisdiction to do that, | nor would the courts of this State have jurisdic- tion to enjoin the enforcement of & judgment ob- tained in the courts of New York petween citi- zens of that State resident there. The question here is, whether @ court of chancery in this State Las jurisdiction to restrain_the personal action of | a defendant so far as to prohibit him from enforc- | ing the collection of the judgment obtained in the | courts of New York according to the facts of this case, There Is & clear distinction as to the_power and ‘anthority of a court of equity in this State to restrain by injunction the proceedings of a court in another State and the power and autherity of such conrt to restain by injunction’ the personal aciion of a citizen of this State. In the one case s court of equity in_this State has no jurisdiction in the other: it has jurisdiction to restrain by injunc- tion the personal action of the defendant h mself from enforcing any unconscientious demand in an- other State, wheither that demand is reduced to judgment of not, npon & proper case being made.’” What Chief Justice Fuller Said. Mr. Chief J: e Fuller of the Supreme | Court of the United States is quoted as saying | in 1890: ? And the reason urged against the exercise of the DOWer (to restrain by injunction proceedings pend- ing in the courts of another State) was that if the | cours of one State should see fit to enjoin pro- ceedings in another, the latter might retaliate in like manner in enjoining proceedings in the first, und thus give rise 0 an_endless confiict of jurisdiction. But this reasoning has not com- mended itself to the judicial mind, for the in- i ction is not directed to the courts of e other but simply to the parties litizant; and, al- the power should be exercised with care, and with & just regard to thie comity which ought to prevail among co-ordinate sovereignties, yet its existence cannot at this day be denied. Authorities Cited by the Defendants. Agalnst this construction of the statute de- fendants cite certain decisions of our Supreme Court, holding that one court cannot stay pro- ceedings 1n another court of this State, if of co- ordinate jurisdiction, by enjoining a party in interest from continuing with his suit. ‘An- thony vs. Dunlap, 8 Cal., 26; Rickett vs. John- son, & Cal, 34; Uhlfelder vs. Leyy, 9 Cal., 607; Crowley vs. Davis, 37 Cal., 268; Wilson vs. Baker, 64 Cal., 475. TUpon an_examination of these authorities I am satisfied that plaintiff’s aforesaid interpre- tation of the statute is not the one that should | prevail. From another point of view, however, the | question_presents itself as to whether or not the Legislaiure intended by the aforesaid section_to deprive a court of equity of the power to enjoin & citizen of this State from taking &n_unfair, oppressive, inequitable ad- vantage of a fellow-citizen by presecutinga Ga. | 2. Thata writ of injunction was duly issued commending said Claus Spreckels to refrain from selling or incumbering the aforesaid land. 3. That no process has been served in said suit. 4. That said corporation allegea in its com- laint: z (ul) That said Claus Spreckels in 1878 made pending suit in & foreign country. When the reason of a rule ceases, the rule itself should cease. This is an important maxim of jurisprudence. California Laws for California Citizens. To use the language of plaintiff’s counsel, | one exception to this doctrine which has been dul | equity. | stitutional poivers of the courts or | chased of the prior equity of the compiainant. | cree of the - court “When the Civil Code was adopted the Legis- lature established the law in this State for the governance of the people of this State. It was flol concerned in protecting the dignity or e larging the jurisdiction of the courts of Ha- waii, of New York or of England. It was eon- cerned in the protection of citizens of Califor- nis from wrongs threatened or carried on by other perscns, whether citizens or not. The State owes this protection to its citizens in re- :grfi!fil for the support which the citizens give “The old distinctions between actions at law and actions in equity have been abolished, so far as concerned the forum, by the constitu- tion in this State. Therefore, where all of the Superior courts in California had complete equitable jurisdiction wrong, or least con- fusion, would have resulted, if citizens sued in one Superior Court haa been permitted to bring counter actions for equitable relief in another Superior Court of concurrent jurisdics tion. This rule had been adopted by the courts | rior to the adoption of sec- | of this State long tion 3423 oi the S!\'Il Code, and that section m\llsl be taken as merely declaratory of the rule,” Foreign Judgments May Be Reviewed. In the case of Smith vs. Davis, decided in June, 1891 (90 Cal., 32), the object of the action was to obtain a decree directing the execution of a trust relating to certain lands | in Washington Territory. The Supreme Court says: ‘“If the parties are within the jurisdic- tion of the court an injunction will be granted 1o stay proceedings in a suit in a foreign coun- try. Courts of equity have, s between parties, reviewed the judgments of foreign courts and even sales made under their judgments when fraud or undue advantage was shown. ‘A trust will be enforced pertaining to realty, regardless of the situation of the prop- erty. “The decrees of courts of equity primarily and properly act in personam, and, at most, collaterally only in ‘rem.'” One Exception to the Doctrine. Story says (Eq. Jur., Sec. 900): 1t is now held that whenever the parties are resi- dent within a country, the eourts have full author- ity 10 act upon them personally with respect to the stbject of suits in & foreign country, as the ends of Justice may require: and with that' view to order them to take or omit Lo take any sieps and proceed- ings in any other court of justice, whether in the same country or in any foreign country. There recognized in America: and that is, that the State cannot enjoin proceedings in the courts of the United States. nor the latter in the former courts. “This exception proceeds upon peculiar grounds of municipal and constitutional law, the respective courts being entirely competent to administer full Tellef in the suits pending therein, We find_ the following statement in Pome- roy’s Eq. Jurisprudence, Vol. 3, Sec. 1318: The power to act in personam, throngh their remedies, is still held by all_courts of equity, even in ‘the presence of the foregoing legislation. Of this nature must always be the remedies when the subject-matter, either real or personal property, is situated beyond the territorial jurisdiction of the court in another State or country. The jurisdic- tion to grant such remedies is well settled.” Where the subject matter Is situated within another State or country, but the parties are within the jurisdic- tion of the court, any suit may be maintained and remedy granted which directly affect and operate upon the person of the aefendant and not upon the subject master, although the subject matter is re- ferred to in tie decree and the defendant is or- dered to do or refrain from certain acts toward it, and it Is thus uitimately but indirectly affected by the relief granted. The Regulation of Provisional Injunctions. Our Code of Civil Procedure (section 76, sub- division 1) merely repeats what the constitu- tion declares, namely, that Superior Courts shall have original jurisdiction in all cases of (Article VI, section 5 ; The Civil Code (section ) provides that provisional injunctions shall be regulated by the Code of Civil Procedure. Section 536, Code of Civil Procedure, says: injunction may be granted in the following 1. plaintiff 1s entitled to the relief demanded and such rellef or any part thereof consists in restrain- ing the commission or continuance of the act com- plained of either for a limited period or perpetu- ally. When It appears by the complaint that the When it appears by the complaint * * % that the commission or continuance of some act during the litigation would _produce waste, great or irre- parable injury to the plaintift. FAC The Inhcrent and Constitutional Powers. The equity courts_are sted under the constitution is that administered in the High Courts of Chan- cery in England. (Peopie, ex. rel. Deschen 30 Cal., 379.) See also: , 58 Cal., 337; estate of Davidson, V. acher vs. Rosenberg | Hinckley, 58 Cal., 457. The Legislature must not preseribe such regulations concerning the exercise of juris- diction #s may substantally impair the con- ractically farker, 49 W defeat their exercises. (Ex parte Cal., 467; Wilson vs. Roach, 4 Cal., 3 lis vs. Farley, 24 Cal., 500.) As late as 1893 Mr. Justice Paterson, speak- ing for the court upon the subject of inherent and constitutional powers of the court }in the particular instancé the power to punish for contempt) said: “The Legislature may regu- late the procedure and enlarge the powers, but it cannot, without trenching upon the consti- tutional powers of the court and destro; -inF the autonomy of that system of checks and bal- itself.” In re Shortridge, 99 Cal., 532.) Jurisdiction of the Chancery Courts. In 1890, in the case of Cole vs. Cunningham (10 Sup. Court Reports, 272), the United States Supreme Court says: The jurisdiction of the English Court of Chancery to restrain persons within 1ts territorial limits and under its jurisdiction from doing anything abroad, whether the thing forbidden be a conveyance or other act, in pais, or the institution or the prosecu- tion of an action in a foreign court, is well settled. In Penn vs. Lerd Baltimore (1 Ves. Sr., 444), Lord | Hardwicke recognized the principle that equity as itacts primarily in personam, aud not merely in Tem, may, where & person_ sgainst whom relief i sought is within the jurisdiction, make a decr upon the ground of & contract or any equity sub- sisting between the parties respecting property uated out of the jurisdiction. * * * Penn v: Lard Baltimore i3 cited with approval by Chief Justice Marshall in Mass Watts (6 Crauch, 148), where a suit was institute Court of Kentucky (0 compe! the conveyance by the defendant of the legal title of land in Ohio on the ground, that he had notice when it was pur- he defense was that the land was beyond the jurisdi tion of the court and within the State of Ohio. This defense was overruled by the court below its decision affirmed by this court. ‘his court 1s of the ovinion, said the Chief Just- ice, that in a case of fraud, of trust or of contract, the jurisdiction of a Court' of Chancery is sustain: | ablewherever the person te found, athough lands not within the jurisdiction of cour: may be affected by the decree. And in Pennoyer vs. Neft (95 N. S., T34, T2, it Is sald {n e opiuion of the court, by Mr. Justice Field: “The State, through its tribu- nals, may compel persous domiciled within its Jimits to execute, In pursuance of the contracts re- specting property elsewhere situated, instraments in such foem and with such solemnities as 10 trans- | fer the title, 50 far as such formalities can be com- plied with, and the exercise of this risdiction in | no manuer interferes with the supreme control of the property by the State within which it is situated.” In Lord Portarlington vs. Soulvy (3 Mylne & K., 104, 108), Lord Chancellor Brougham Teviews the history of the jurisdiction to restrain parties from commenciug of prosecuting actions n foreign countries, and conciuded Nothing can be more unfounded of the doubts of the jurisdiction. That is grounded like all other jurisdiction of the court, not upon any precension to the exercise ot judicial and administrative rights abroad, but on the circamstance of the person or party on whom | this order is made being within the poiwer of the court.” Can Restrain Those Within the Limits. The case of Dehon vs. Foster (4 Allen, 545) Is & leading case upon the subject. It was argued by eminent counsel on both sides and decided upon great consideration. The Supreme Judi- cial Court of Massachusetts, speaking through Bigelow, C. J., points out that the jurisdiction of & court, &s & court of chancery, to restrain rsons within its jurisdiction from prosecut- ing suits upon & proper case may, either in the courts of Massachusetts or in other States or foreign countries, rest on the clear authority vested in-courts of equity over persons within | the limits of their jurisdiction and amenable | to process-to stay acis contrary to equity and good conscience, and that, as the de- in such case is directed solely at the party it is wholly immaterial that such party is prose- cuting his action in the courts of another State or country. We only assert and enforce our 0Wwn authority over persons within our juris- diction to prevent them from making use of means by which they seek to countervail and escape the operation of our own luws in deroga- tion of the rights and to the wrong and injury of our own citizen. The Court Has the Power to Act. By reasonably construing the aforesaid sec- tion of our Civil Code so as to allow a court of equity by process of injunction to restrain & resident” of ihis State, in & rroper case from continuing the prosecution of his action in a foreign country against another resident it becomes unnecessary to consider either the suggestion that the section in guesflon should ot be permitted to control the provisions of the Code of Civil Procedure regerding the sub- ject of injunctions, or the suggestion that the section s unconstitutional in that it imposes a serious limitation I:Imn the equity powers of the court as conterred by article VI, section 5, of our constitution, and confirmed by the de- cisions of our Supreme Court. Being of the opinion that the aforesaid section |- | of the Civil Ccde does not affect the power of this court to grant the relief that plaintift seeks, it remains for the court to determine whether or not the admitted facts justify the issuance of an injunction to restrain defend. ants from continuing the ‘prosecution of the suit in the Hawaiian republic. Personal and Real Property Involved. The defendants by interposing their de- murrer, necessarily concede for the purpose of disposing of all questions raised by the de- murrer, that all facts well pleaded in'the come- plaintare true. The Hawaiian action concerns personal prop- jurisdiction with which our | in the Circuit | | ances which is one of the chief features of our | | triple_form of government, fetter the power | | erty as well as real proFer!y' for the plaintiff therein seeks to have Claus Spreckels account for and pay over all moneys received by him as rents, issues and profits of certain land since a certain time. ; For the purpose of ascertaining whether or not the facts alleged in the complaint are suf- ficient to entitle the plaintiff to the relief for which he vrays, reference will now be made to several well-known and interesting cases that aptly bear upon the subject. Precedents in the California Reports. In the case of Le Breton vs. Superior Court §66 Cal., 27), the petitioner prayed for the sauance of A writ of prohibition against the Superior Court of this City and County for the purpose of arresting the proceedings of the court in the case of Barroilhet against said petitioner. The Supreme Court in effect says: Itis contended that the obiect of Barroilbet's suit i to reach personal property as well as realty, and that in such a case there is concurrent juris- Qiction created by law in the court of the county in which the defendant resides. The prayer of the complaint against Le Breton is that an account be taken of and concerning a Certain trust and of the advances of Le Breton’s testator. and that the trust be executed by selling land subject thereto, etc. ‘We find that it was a proceeding to enforce a trust on both personal and real property. The suit was | brought in the country in Which the administrator resided, and we have no doubt the Kuperior Court had jurisdiction, as the plaintifts sought to reach personal property in the hands of the trustee. And this, although the lands lie in a foreign jurisdiction. In Dinsmore vs. Nerenheimer (32 Hun,, 204). injunction was praved for in New York to restrain the prosecution of two suits that has been brought in the District of Columbis, in order to avoid the decision of the Court of Ap- seuls of that State, and to_take advantage of & ecision to the contrary made by the Supreme Court of the District of Columbia. Injunction was issued. Location of Property Does Not Deter Action. The court says: The suits brought in the District of Columbia were commenced by u resident citizen of this State t enforce a measure of liability, which, un- der the facts as they had been made to appear, would be inequitable and oppressive and in viola- tion of the restrants contained in the contracts voluntarily entered into and accepted. This sub- ject was very thoroughly examined in Debon vs. Foster (4 Allen, 545), and it was held there that an injunction ought 10 issue to restrain resident cltizens there from doing acts abroad which would work wrong and injury 10 others, and are, there- fore, contrary to equity and good conscience. In Great Falls Manufacturing Compafy vs. Worster (23 New lHamp., 470), decided in 1851, the court says: It would he a great defect in the administration of the law if the mere fact that the property was out of the State could deprive the court of the power to act. As much injustice may be done in a given case against the Citizens of this State by go- ing out of the jurisdiction and committing a wrong as by staying here and doing it. The injustice does not lose its quality by being committed elsewhere than in_New - Hampshire, and as the Legislature has conferred upon the court the power fo issue injunctions whenever it Is necessary to prevent in- jury, it 15 the duty of the COurt to exercise that power upon the presentation of a proper case, and when it ean be done consis.ently with the scknowl- edged practice in courts of equity. AS the principle which is sought to be_applied here has been recog- nized for nearly 200 vears, we_have no hesitation in holding that the court has jurisdiction to issue the injunction prayed for. These Are Exceptions to the Rule. In Claflin & Co. vs. Hamlin (67 How. Pr., 294) the court say It has been held by this court that while, as a general rule, the courts of this State will decline to interfere by injunction o restrain its citizens from proceeding in an_action which has been com- menced in the courts of & Sister State there are ex- ceptions to the rule, and that where a-cuse 18 pre- | sented squarely constituting such exception ex- treme delicacy should not deter the court from | controlling the conduct of a party within its juris- diction to prevent oppression or fraud, and that no Tule of comity or palicy forbid it The afiidavits and papers in the case show that the suit brought in Illinois w8 not brought in good faith, but was brought for the purpose of vexing, annoying and harassing the plaintifis in this action, and that therefore the preliminary injunction granted should be eontinued until (he case can be tried. As to the inherent general powers of courts of equity our Supreme Court says (Merced Min- ing Company vs. Fremont, 7 Cal., 317): In reference to the subject of imjunctions the same writer (Justice Story). after stating that they “are now more liberally granted than in former times,” makes these practical and judiclous re- marks: “It may be remarked, in conclusion, upon the subject of injunctions, that courts of equity constantly decline to lay down any rule which shall limit their power and discretion as 1o the par- ticular cases in which such injunctions shall be granted or withheld. And there is- wisdom in this course, for it is impossible to foresee all the exi- gencies of society which may require their aid and assistance o protect Tights and redress wrongs. The jurisdiction of these courts, thus operating by way of special injunction, is manifestly indispensa- ble for the purpose of social justice ina great va- riety of cases, and (herefore should be upheld by & steady cohudence.” It is the boast of the common law, as of every other system of enlightened jurispradence, that the principles, when legitimately applied, will af- ford a redress for every substautial injury. And especially is it the distinguishing characteristic of equity that while its rules are certain its expansive principles are ample enough to embrace all new cases. The circumsiances may be new, but there is always some known principle or new combina- tion of known principles applicable to it. Law, in fact, 13 but the rules of commion sense, and the principles of justice as applied (o circumstances as they really exist. And it is upon this sensible ground that courts of equity have wisely refused to Jay down any Hmits to their right to grant special injunction. The right must be exerclsed with due caution, but it must be exercised in proper cases. Facts Assumed by the Court. And now, in determining whether the de- fendant's demurrer should be sustained or overruled, the court must assume, in the face of the admitied facts, that the land in contro- versy is not held by the piaintift’ in trust for the defendant corporation, mnd hence that there was no occasion for said corporation to commence its aforesaid action against plain- tiff; and thatin the light of all the circnm- staneces and facts as alleged in plaintiff’s com- plaint, tne said corporation ought not in equity | and good conscience to be permitted to main- tain and continue its aforesaid action in the courts of the republic of Hawaii. The Preliminary Injunction Continuéd. Hence, it is the opinion of this court that the preliminary injunction heretofore granted should be continued in force until by the trial of the cause it shall have been determined whether or not the facts established by the evidence then adduced may justify the court in permanently enjolning the defendant from prosecuting the Hawaiian suit, Accordingly the demurrer 1s overruled, with leave to defendants 10 answer within ten days, and the motion to dissolve the temporary in- junction is denied. JaMEs M. TROUTT, Judge. Dated March 12, 1896. . FOR THE GOTB REMEDIES Subscriptions, Large and Small, Coming In for the Pest- house Lepers. Caustic Letter From a Contributor on the Rarity of Christian Charity. The interest awakened in the Pesthouse lepers still brings in contributions to the | fund for the purchase of the Japanese remedy. Supervisor Beniamin is meeting with success in his efforts among those who are generously disposed toward the unfor- tunate ]elx_-rs‘ 7 The following donations were received yesterday through this office: SAN FRANCISCo, March 11, 1896, To the Editor of the Call—DEAR Str:' 1 have seen in your paper that money is being raised to purchase medicine for tne lepers. I inclose 25 cents which I would like 1o have added to the fund. Iremain yours truly, G. Mc. SAN FRANCISCO, March 11, 1896, To the Editor of the Call—Sir: Allow me to contribute my mite ($1) toward Mr. Benja- min’s fund for buying the needed remedy for the poor unfortunate lepers whont a so-called Ckristian Nation and Government allow to rot by degrees day after day, each day being one day less of suffering and suspense, until at last that great boon, d h, which we all dread so much, brings relief and peace to them. Like criminals, they are incarcerated by their feliow-men and kept irom their liberties, which their unfortuate cordition makes necessary. But why not give them a fitting abode to live in and the best the market affords for the few remaining days thay may have to live on this earth? Wespend millions a year to convert heathens to our ways of belief in the hereafter, and it would be & ehame if we could not have enough Christianity ameng us to raise the paltry sum that is needed to alleviate the pain and sufferings of the poor lepers. Let us take Rrop«r care of them, or let our boast of being nown as a civilized Christian community be no longer heralded abroad. The heathen Chinese do no less with their incurables than we do with ours. Re!pect(ully_‘yonn. R. T. Baccus, Southwest corner O’Farrell and Mason streets. A lady calling herself Mrs. Gollin, but refusing to give her address, called at the business ottice of THE CALL and left a $5 old piece, saying that she wanted it added go the leper fund. Mr. Benjamin stated yesterday that he |- will gather in the $200, the amount needed, as soon as possible and send to Japan for the medicine. 9 MB, HERRIN TALKSALL DAY The Lawyer Battles Gallantly in the Southern Pacific’s Cause. MISTRUSTS ASSESSED VALUES. He Considers Mr. Larue’s Affidavit Inadmissible and Incompetent Evidence. Attorney Herrin continued his argument for the Southern Pacific Company during yesterday’s sitting of the United States Circuit Court. Mr. Herrin commenced by paying his respects to the affidavit of Railway Com- missioner Larue relating to the assessed valuation of the property in California owned by the Southern Pacific Company. He contended at considerable length that the court could not take cognizance of Mr. Larue’s figures and strongly maintained that assessment lists were incompetent and unreliable as evidence of the actual value of property assessed. Assessments were made, he said, for the special purpose of taxation, and in determining the ques- tion at issue he thought no court could properly take them under consideration. Having been prepared for one special pur- pose and with a view to one specia! end, he did not see how any court could have the right to make any use of them for any purpose whatever other than that for which they had been prepared. No attack, he explained, was intended to be directed against the official honesty of Tax Assessors. The statement was fre- quently made that property, both real and personal, was seldom or never assessed for anything near its market value. This, Mr. Herrin_said, might be true, but it made no difference so long as the basis of assessment was uniform and no unfair dis- tinctions were made between taxpayers. He maintained that such distinctions were | seldom or never made, and denied that; corporations were the recipients of favors | greater than those shown to individuals. | The Assessor could not be attainted as| uilty of criminal negligence or bad faith in office merely because he usually assessed | taxable property at a fieure below its mar- ket value. Still, this fact should render all tax assessment-lists inadmissible for the purpose of proving the real value of property assessed, and hence be objected | to A{'r. Larue’s facts and figures as evidence of the value of the Southern Pacific Com- pany’s property. In relation to the transactions between the Central Pacific Railway Company and | the Contract and Finance Company Mr. Herrin maintained that while the road was in process of comstruction the railroad | made no money. Every dollar received by the latter-named organization from the sale of bonds and otber securities went forthwith into the construction fund, ieav- ing Mr. Crocker and the other members of the concern without a cent of profit as in- dividuals. i At the opening of the afternoon session | Mr. Herrin commenced by reading an affi- davit made by W. E. Curtis during the | Central Pacific investigation before the | | Railway Commission. Mr. Curtis’ state- ment dealt with the cost of laying and maintaining the railway between Sacra- | mento and Ogden. He named $30,000,000 | as a conservative figure and gave an esti- mate of the running expenses and extra- | ordinary disbursements, from which Mr. | Herrin ‘deduced the conclusion that the | company owning and operating the road | should be free to charge such transporta- tion rates as would yieid a reasonable rate of interest on the funds invested. Esti- mates of the cost of other Pacific Coast railway lines were also cited to the same effect. “The result of the testimony cited,” con- tinued Mr. Herrin, *'is to show that in the case of the Southern Pacific lines the ¢ of laying and maintaining them far ex- ceeds the amount of their bonded indebt- edness. The California lines earned a sur- plus during 1894 of over §$400,000, but in Thie first hal of 1895 there was o deficit of over $800,000. This shows how the reve- nues of a railway may fluctuate. An ar- bitrary reduction of the company’s trans- portafion rates might injure the company to a great extent. *Now the Railway Commission has not segregated the various Pacific lines, but has treated them all as branches of the Southern Pacific Company, regarding them | practically as a unit. However, some of i these lines are merely leased whil are the property of other compani He contended that care should be used | in referring to the different lines, so as to | avoid danger of confusion and possible iu- | justice, i The case of ex-Parte Kobler, receiver of the Oregon Pacific Railway, was cited as | showing. that owing to the expense of travel on certain portions of the road a rate which might be considered high if the travel were uniformly even and easy on all sections of the line was sustained as reasonable. Mr. Herrin reiterated his ref- erences to the dictam of Judge Brewer in | the Day case as being in harmony with the spirit of the Oregon Pacific case. Other citations to the same effect were com- mented upon at length. g Mr. Herrin was spirited and vigorous in his contention that if complaint is made that rates on certain lines are exces- sively high, the offending lines alone are to be heFd subject to investigation, and in case of an injunction issuing to reduce the rates complained of this reduction ought i to effect the line or lines concerned, and not all lines of railway owned, leased or operated by the company owning the road or roads whose rates are called in question, | At the same time, he said, the expenses of running other lines owned by the same company would have to be taken into con- sideration in arranging the schedule of transportation charges. E “Thiscircumstance,”” continued Mr. Her- rin, “is peculiarly deserving of consider- ation in this case. The Southern Pacilfi Company’s lines are the links which join California to the Eastern State Now, the transcontinental line is not a gold mine for the company. The cost of laying it was enormous, while the expenses attendant upon its maintenance are enough to render its gains exceedingly small. For }m,m the company depends mainly upon the reven- ues derived from its branch roads and leased lines. Hence, in fixing the rates to be charged on any one or more of these lines regard must be had to the general expenses of the entire system of which the roads in question form a part. “The power of .fixing transportation rates is not an arbitrary, tyrannical one, irresponsible in its natare, with no other object than the oppression of property- owners, It is a benignant power, whose only end is the prevention of fraud and extortion. 3 *The Railway Commission can have no greater authority than the Federal Con- gress, yet that body cannot confiscate pri- vate property without allowing its owner a fair compensation. The Southern Pa- cific Company is entitled to earn enough money to run its roads and keep them in . repair, to pay the salaries of its employes and the interest on its bonded indebted- ness, and to yield its stockholders a fair return for their funds inyested.”” Mr. Herrin read a large number of citations, which were noted by the counsel for the defense, after which he informed the court that he would endeavor to close his argument this morning. WILL NOT PROVIDE, Mrs. Hattie Graham Wants Her Hus- _band Compelled to Support Her. Mrs. Hattie Graham, who lives at 61914 Mission street, has asked General McComb of the Humane Society to arrest her hus- | Most of the schools are on car lines. | sidering the number of children and the | | minds the necessi | street wharf on February 25. As the Queen band and compel him to provide for his two little children. Mrs. Graham states that in December, | 1895, he deserted her and since then she | has been unable to locate him, although ! she has heard he is getting a good salary, | Graham is a professional cook and has worked in several of the large restaurants | about town. | TRUST IN LIGHT. Contracts for Lighting Streets and Pub- lic Bulldings May Soon Be Awarded. The committee representing the interests of the San Francisco Gas Company and the Edison Electric Light Corporation continues to make headway in the efforts to form a trust. It is now regarded as almost a certainty that the consolidation will be effected. - The stock of the San Francisco Gas Company sold yesterday at 82, The Grand Jury is keeping in mind the provability of an advance in rates should the “‘combine’” be effected. It is an open question whether the law does not pro- hibit the organization of trusts to advance rates for commodities such as gas and water. On this point the Grand Jury may seek the advice of the -District Attorney. The fact has not escaped the attention of the Grand Jury that contracts may sqon be made by the Boara of Supervisors for lighting the streets and public build- ings of the City. The pooling of corporate interests at this time is therefore regarded as significant and the course of future events will be closely watched. CHLOREN IND OIS A System of School Drills for the Protection of Young Pupils. Superintendent Babcock Knows of but | One Accident toSchool Children | in Nine Years. | | ““The question of protection against street car accidents should be agitated, but more with a view to protect aduits than | | children. The teachers of the m\b]ic“ schools are extremely careful to guard the children against the possibility of acci- dents from streetcars,” said Superintend- ent Babcock yesterday. “Every day between 2:3¢ and 3 p. 33,000 children leave the public schools. | | M| Con- | number of streetcars, it is surprising there | are not more accidents. During my nine years’ connection with the schools I have known but one. That occurred on Eady street a few months ago. ““A rule that teachers never fail to insist upon is that children shall not cross the street except at regular crossings, where there are car lines. “Yet these suggestions are good. Too | much-care cannot be taken.” | The Superintendent of Schools pro- | duced the following letter, which called | | out his remarks, a practical one: Ty the Editor of the Call—DEAR StR: In view | of the frequent accidents since the introduc- tion of the electric-car and the increased speed at which the cable-cars are run, would it not be well to have the children taught at school | 10 be more careful? In order to impress on their | t ‘ising more eaution and instill it in their minds, I would suggest that something like the following be put in inrce:‘ 1. Look both ways when crossing the street or when alighting from a car. 2. Never iry to cross the sireet when either | car or team is ANy ways near. 3 | 3. Don’t get on or attempt to getff car until | car stops. 4. Always get off on the right side. | My suggestion is that rules such as the above should be posted in every kindergarten and | primary class room in the City, and that such | Tules be read aloud to the class every morning | Dy the teacher, or perhaps, better still, by a different pupil every day, taking them in regu- | lar rotation. | Tn my opinion it would ve but a short while | when children would, by such constant drun: ming, become mechanicaily careful and many accidents would be avoided. As it is now, a | very large proportion of our population, both | young and old, are getting so familiar with danger that they are becoming more heedless and take chances every day that they should | not and would not take had they been taught | the foregoing simple rules. : e The Queen Not Responsible. The United States Inspectors of Steam Ves- | sels yesterday took testimony in connection | with the collision of the Queen with the Brit- | ish bark Strathdon in the bay off the Lombard- | had kept its fog-bell ringing almost constantly and came to & stop_every minute, the board exonerated the captain of the steamer from all responsibility. The damage done to the bark | was estimated at $10,000. | | and start a | closure, | said. WILL FORBID COURSING. Secretary Holbrook Says That the Hares Shall Not Be Chased. NO CHANCE WITH THE DOGS. The Society for the Prevention of Cruelty to Animals Will Make Arrests. Charles Holbrook, secretary of the So- ciety for the Prevention of Cruelty to Ani- mals, says that the coursing grounds which are being made near the Ingleside track shall never be used while he is at the helm. “T should like these people to know that it is a waste of money and energy for them to construct any such grounds,” said the secretary yesterday. “We shall never al- low coursing in this County. At the first exhibition they give we shall have them arrested and at each subsequent exhibition they will be arrested. Coursing is allowed in the county of San Mateo, but they have dog fights and all sorts of things there which we should never tolerate on this side of the line. “I know that the hare is a pest in many parts of California and has to be exterminated. But thereis away of do- ing that without inflicting usbless cruelty. No trune sportsman would pat- ronize the sort of coursing that I hear they contemplate having near the Ingleside track. The sportsmen go into the valleys hare that 13 fresh and fleet of foot. Under those circumstances the crea- ture has a chance against the dogs; but vhat sort of sport, I should like to know, it to cramp up a hare for hours and then turn it out, sick and terrified, with scarcely a chance against the dogs that pursue it? Any man with an idea of fair play would revolt against taking such an unfair ad- vantage of the hare. “I have seen the sort of coursing I mean n San Mateo, and it was patronized by very low people. There was an inclosed course, and the only chance of escape for the hare was into the corners of the in- where the pickets were wide enough to let it through. I saw a sick, | terrified hare turned out on this course; it | did not know the ground, and had not one chance in a hundred against the dogs. One hare had its skin torn completely from its back, and yet is was alive, and another was torn in two by the dogs. Call that sport? Why, it was one of the most low down exhibitions of cruelty I ever saw.” ‘When asked about the coursing matches in which so many sportsmen in England participate, the secretary said that was an entirely different matter. “The great matches there are all run in the open,’”” he “As I understand it, the grouna near Ingleside is to be shut in, which makes it an exhibition no true sportsman would patronize. However, 1 shall see to it that at the first exhibition given there the people who give it are arrested. I should not be surprised if a whisky-milt were an adjunct of the coursing ground.” A FREE FRUIT MAREKET The Harbor Commissioners Petitioned on the Subject at Their Meet- ing Yesterday. At an adjourned meeting of the Harbor Commissioners held yesterday afternoon | a strong resolution was received from the Santa Rosa Grange, P. of H., No. 17, favoring the establishment of a free fruit market on the water front. Many of the prominent organizations in the large interior towns have long since favorea the project, and at the present time the sentiment 1s growing very strong. A similar communication from the Cali- forma Dried Fruit Agency, located at San Jose, was read, and some time was given up to a discussion of the subject by Com- missioners Cole and Chadbourne, their colleague, Mr. Colnon, being absent. What action may be taken, if any, was | not indicated by the order passed instruct. ing Secretary Keegan to reply to the com- | munications. —————— An Old Man Run Over. V. F. Bonner, an old man who lives at 703 Howard street, was run over by a delivery ‘wagon on the corner of California and Kearny streets vesterday morning and seriously in. jured. The driver whipped up his horse and disappeared. Bonner was taken to the Re- ceiving Hospital, where his injuries were at- tended to. NEW TO-DAY. would have changed. No more fancy prices for well made, stylish Clothing—$25.00 now will buy what formerly cost you $50.00. You won'teven have to pay the retailers’ profit if you will come down to the “blue sign’ store, in the wholesale district, and buy direct of the - Men’s Suits manufacturer. for Spring. SERVICEABLE CHEVIOT BUSINESS SUITS—properly cut sack coats, good patterns, gray, brown linings, well made or blue; stout $5.00 A BETTER CHEVIOT BUSINESS SUIT— single or double breasted sack; large line of patterns and colors; Retailers’ price $10 at least - $7.50 NOBBY INVISIBLE PLAID SUITS—the very latest fad, All-Wool Cassimeres, round cut corners, bronze plaids; fancy brown, tan and bone buttons. These suits were made for samples and are as perfect as possible—Lowest tailors would say $25 for these pl-'ice;d $ I 5_09 BROWN BROS. & CO., Wholesale Alanufacturers—Proprictors Oregon City Woolen Mills. FINE CLOTHING RETAI LED AT WHOLESALE. 121-123 SANSOME STREET. ALL BLUE SIGNS. o