Hulbert

Petitioner has made an original application to this court to suspend the operation of a certain injunction until the decision of the appeals in two cases, in each of which the California Portland Cement Company, a corporation, is the defendant, on the ground that the property of the corporation would be so greatly damaged by the operation of the injunction pending the appeals, that a judgment in defendant’s favor would be almost fruitless, while, it is contended, the damage to plaintiffs is easily susceptible of satisfaction by a payment of money. Petitioner offers to furnish any bond this court may require if the order which is prayed for shall be granted. As this was (the first case in America, so far as this court knew, in which the operation of a cement plant had been enjoined because of the dust produced in the processes of manufacture, and as the showing which was made indicated that petitioner’s loss would be very great if the injunction were enforced at once, an order was entered temporarily staying its operation until both sides to the .controversy could be hearcQ The court was moved somewhat to such action also because the trial court had made an order staying the…

I concur in the order, fit seems to me, however, that the discussion concerning the right of a court of equity to refuse an injunction where the injury resulting to the plaintiff from a denial of the relief would be far less than that sustained by the defendant if the injunction were granted, is applicable to a consideration of appeals on their merits, rather than to the question here involved.! If the court may balance the extent of the losses to be suffered by the respective parties, it exercises its discretion in this behalf when it grants or refuses the injunction. In this case the lower court has determined that it was essential, or at least proper, for the protection of the plaintiffs’ rights that the defendant should be restrained. We are not now reviewing the correctness of that determination. The petitioner cannot, of course, ask us in this proceeding to stay the force of the injunction on the ground that the trial court abused its discretion or that it erred otherwise in granting the injunction. What is claimed is that a suspension of the judgment “is necessary or proper to the complete exercise” of our appellate jurisdiction (Const., art. VI., sec. 4); it is claimed…