I dissent. Upon the record before us, it seems to me that there can be no question but that the injunction changes the status of the city and county of San Francisco in relation to its claim of right to operate the "C" and "D" cars over the outer tracks on Market Street and the loop on the Embarcadero — a right which had been peacefully enjoyed with the apparent acquiescence of petitioner for some months prior to the commencement of the action. To disturb such a status involves the exercise of mandatory authority. And "it is thoroughly settled that, while an injunction which merely has the effect of preserving the subject of the litigation in statu quo is not suspended by an appeal (Merced Min. Co. v. Fremont, 7 Cal. 130;Heinlen v. Cross, 63 Cal. 44; Swift v. Shepard,64 Cal. 423, [1 P. 493]; Dewey v. Superior Court, 81 Cal. 64, [22 P. 333]; Rogers v. Superior Court, 126 Cal. 183, [58 P. 452]); a mandatory injunction, i. e., one which compels affirmative action by the defendant, cannot be enforced pending a duly perfected appeal. (Foster v. Superior Court,115 Cal. 279, [47 P. 58]; Mark v. Superior Court, 129 Cal. 1, [61 P. 436]; Schwarz v. Superior Court, 111 Cal. 106, [43 P. 580]; Stewart v. Superior Court, 100 Cal. 543, [35 P. 156, 563].) If an injunction, though couched in terms of prohibition, is mandatory in effect, a proceeding by the court issuing it to punish a violation as a contempt is in the nature of process for the enforcement of the affirmative feature of the writ. . . . If the injunction compels him affirmatively to surrender a position which he holds, and which, upon the facts alleged by him, he is entitled to hold, it is mandatory." (Clute v. Superior Court, 155 Cal. 15, [132 Am. St. Rep. 54,99 P. 362]. See, also, Hagen v. Beth, 118 Cal. 330, [50 P. 425].)
As to the "C" and "D" cars, it was sought to compel the said city and county to abandon the use and occupation of the tracks which would have had the result of placing the petitioner in the precise position it seeks through a permanent injunction.
On the score of the equities involved, it is to be kept in mind that if the legal effect of the injunction was to make it prohibitory, its enforcement would have worked a serious injury *Page 94 not alone to the said city and county, but to the public at large, by reason of the interference with the expeditious transportation of passengers to and from the Panama-Pacific International Exposition, to which service these cars were particularly dedicated. And as the proceeding may involve the liberty of the persons sought thereby to be brought before the superior court, any doubt touching the question of the character of the injunction should be resolved against the petition.