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Davis v. East St. Louis & Interurban Water Co.

MAY 27, 1971.

ROBERT DAVIS ET AL., PLAINTIFFS-APPELLEES,

v.

EAST ST. LOUIS AND INTERURBAN WATER COMPANY, INC., DEFENDANT-APPELLANT.



APPEAL from the Circuit Court of St. Clair County; the Hon. RICHARD T. CARTER, Judge, presiding.

MR. JUSTICE GEORGE J. MORAN DELIVERED THE OPINION OF THE COURT:

This is an interlocutory appeal by defendant from an order entered in the Circuit Court of St. Clair County on May 5, 1970, which made a temporary restraining order entered on April 20, 1970, into a preliminary injunction to remain in effect until a hearing on the merits.

Plaintiffs' petition for a temporary restraining order alleged that they had applied for water service for a house into which they were about to move; that defendant required a $40.00 deposit before water service would be available to that house; that plaintiffs moved into the house and are living there with their two children; that they are unable to pay the $40.00 deposit; that they require water for their personal health, safety and well-being; that defendant currently is the only source available for piped water to their house; that continued lack of water in the house will cause petitioners and their children irreparable harm and injury; that they believe the charging of a $40.00 deposit is unlawful and illegal under the laws and statutes of the State of Illinois and the Constitution of the United States; that they intend to file a complaint and petition before the Illinois Commerce Commission contesting the lawfulness of that deposit; and that they believe the petition before the Illinois Commerce Commission will not be frivolous.

Plaintiffs also filed a motion with supporting affidavits to waive filing fees. On April 20, 1970, the trial court granted plaintiffs' petition and temporarily enjoined defendant from "refusing to supply water service to petitioners' said house on account of petitioners not having paid a deposit", without notice and without bond. The trial court's temporary restraining order provided (1) that petitioners would suffer irreparable harm and injury unless they were able to receive water service; (2) that petitioners intended to file a complaint contesting the legality of charging a deposit as a precondition to supplying water; and (3) that this matter is of sufficient urgency to justify the immediate entry of a temporary restraining order.

On April 27, the trial court denied defendant's motion to dissolve the temporary restraining order to quash the injunction writ and to dismiss plaintiffs' case. Plaintiffs' motion for a preliminary injunction was continued until May 5, 1970, and the temporary restraining order was continued until that date. On April 30 plaintiffs filed their first amended complaint for a preliminary injunction, which was substantially similar to their original complaint, but contained additional allegations that plaintiffs are poor people whose sole source of funds is public aid; that while they are able to pay their water bills as they fall due, they are unable to make the deposit of $40.00 or more; that they have filed a complaint and petition before the Illinois Commerce Commission contesting the lawfulness of defendant's deposit policies; that they believe these policies are violative of pars. 32, 38 and 41 of ch. 111 2/3, Ill. Rev. Stat. 1969, and also the equal protection clause of the United States Constitution.

On May 5, 1970, after argument, the temporary restraining order was made into a preliminary injunction to remain in effect until a hearing on the merits.

• 1 Defendant first contends that the injunction is invalid because it contests the validity of Revised General Order 172 of the Illinois Commerce Commission and therefore violates that part of par. 72 of the Public Utilities Act (Ill. Rev. Stat., 1969, ch. 111 2/3, par. 72) which provides: "No proceedings to contest any rule, regulation, decision or order which the Commission is authorized to issue without a hearing and has so issued shall be brought in any court unless application shall have been first made to the Commission for a hearing thereon and until after such application has been acted upon by the Commission * * *." The present proceeding is not one to make a final adjudication of the validity of the practice of requiring a deposit, but is brought to preserve plaintiffs' right to water under Ill. Rev. Stat. 1969, ch. 111 2/3, par. 38, pending the resolution of the decision pending before the Commerce Commission and the merits of the underlying dispute is but one factor to be considered in the resolution of this issue.

• 2 Defendant next contends that plaintiffs have not shown that defendant has committed any legal or equitable wrong and are therefore not entitled to injunctive relief. Section 38 of the Public Utilities Act, supra, requires that:

"Every public utility shall, upon reasonable notice, furnish to all persons who may apply therefor and be reasonably entitled thereto suitable facilities and service without discrimination and without delay."

It is clear that plaintiffs have a prima facie right to water service and they alleged that the reason for denial of this service to them violates their rights under the equal protection clause of the United States Constitution and also violates pars. 32, 38 and 41 of ch. 111 2/3. These allegations of illegality were sufficient to invoke the equity jurisdiction of the trial court.

• 3 Defendant next contends that the granting of a temporary mandatory injunction is a drastic remedy which should be granted only in cases of great necessity and only where plaintiff would make a strong showing of probable success on the merits at the full trial to follow. We believe it suffices to say that the denial of water service to plaintiffs and their two children for their inability to pay a water deposit constitutes a showing of irreparable harm and of great necessity deserving of injunctive protection where otherwise proper. In O'Brien v. Matual, 14 Ill. App.2d 173, the court said at 187-188:

"* * * [A] temporary injunction should not be refused or dissolved merely because the court may not be absolutely certain the plaintiff or counterclaimant has the right he claims; the disposition of an application for a temporary injunction does not, of course, preclude in any way an inquiry into the sufficiency of the complaint or counterclaim upon a motion to dismiss, or determine the case on the merits at all; the plaintiff or counterclaimant, however, is not required upon such an application to make out a case which would entitle him, at all events, to relief at the final hearing; he need only prima facie show for this purpose that he raises a fair question as to the existence of the right he claims, present circumstances which lead to a belief that he probably will be entitled to relief, if the proof sustains his allegations, and satisfy the court that matters should be preserved in their present state and status quo until the cause can be disposed of on its merits; one important consideration upon an application for a temporary injunction is the relative inconvenience to be caused the respective parties if the application be allowed or denied."

• 4 In a case of this nature, a court will always consider the balance of convenience to the parties. In this regard the court considers whether a greater injury would be done by granting an injunction than would result from a refusal. In the present case the answer is clear that the injury to plaintiffs is great if they are not granted injunctive relief, whereas the injury to the defendant is negligible, if any. Plaintiffs' verified complaint which is unrebutted alleges that they are able to pay periodic water bills, but are unable to make any extraordinary deposit payment. Therefore, in this case the injury to defendant caused by the granting of the injunction is non-existent compared to the irreparable injury which will result if the injunction were not granted. ...


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