Opinion
January 2, 1940.
February 1, 1940.
Equity — Preliminary injunction — Absence of threat of immediate harm.
1. A preliminary injunction is improvidently issued where at the time of its entry no immediate harm is threatened. [277-8]
2. In an action in equity to restrain municipal authorities from interfering with the plaintiffs' use of a municipal swimming pool, in which it appeared that the pool was closed and was not ready for use at the time the bill was filed, it was held that the issuance of a preliminary injunction was improvident. [277]
Argued January 2, 1940.
Before SCHAFFER, C. J., MAXEY, DREW, LINN, STERN, BARNES and PATTERSON, JJ.
Appeal, No. 222, March T., 1939, from decree of C. P. Allegheny Co., July T., 1939, No. 2573, in case of Joseph A. Randall et al. v. City of Clairton et al. Decree reversed.
Bill in equity. Before SMITH, J.
The opinion of the Supreme Court states the facts.
Preliminary injunction granted. Defendants appealed.
Error assigned was order granting a preliminary injunction.
John A. Metz, with him C. Joseph Recht, for appellants.
B. Robert Averbach for appellees.
Plaintiffs filed this bill in equity, setting forth that they are persons of color and citizens and residents of the City of Clairton, against the City, its mayor and councilmen, praying that an injunction issue, restraining defendants from interfering with the free use and enjoyment by plaintiffs of the facilities of a swimming pool, constructed, maintained and operated by the City. The pool was built from the proceeds of a municipal bond issue. An admission fee was charged for its use.
The bill was filed June 15, 1939. On June 30, 1939, the chancellor issued a sweeping preliminary injunction restraining defendants and all persons employed by them from interfering with plaintiffs or any citizens or residents of the City by reason of race or color in the free use and enjoyment of the facilities of the swimming pool.
It was stated at bar, and not denied, that at the time the bill was filed the swimming pool was closed and empty and that it still remains closed and empty. In view of this, the preliminary injunction was improvidently issued. Until the pool is prepared and ready for its intended use — to swim in — no one could or would use it. The questions raised will be ripe for determination when the pool is put in operation and the case proceeds to final hearing.
Decree reversed. Costs to abide final hearing.