The opinion
HAYNSWORTH, Chief Judge, with whom BOREMAN, Circuit Judge,
joins (dissenting):
I find no fault with the decision of my brothers concerning the award of fees for counsel, and I am not in disagreement *213 that the conduct of the Supervisors was unconscionable. However, I must disagree with the majority in their interpretation of the power of this Court to adjudge parties in contempt.
It is clear that this Court has an inherent power to punish contempts. It was originally defined by the seventeenth section of the Judiciary Act of 1789 as the power to punish by fine or imprisonment all contempts of authority in any cause or hearing before the Court. But the power has since been limited and redefined by the Act of Congress of March 2, 1831, now 18 U.S.C. § 401 . The statute prescribes:
“A court of the United States shall have power to punish by fine or imprisonment, at its discretion, such contempt of its authority, and none other, as—
(1) Misbehavior of any person in its presence or so near thereto as to obstruct the administration of justice;
(2) Misbehavior of any of its officers in their official transactions;
(3) Disobedience or resistance to its lawful writ, process, order, rule, decree, or command.”
Considerable doubt was expressed in Ex parte Robinson, 19 Wall. 505 , 86 U.S. 505 , as to whether this statute could limit the contempt power of the Supreme Court, which derives its existence and powers from the Constitution, and it is obvious from Merrimack 1 that the Court has since gone beyond the statute. But Robinson 2 made it clear that there can be no question about the limiting effect the statute has upon the courts of appeals and the district courts. As courts created, not by the Constitution, but, through the power that document vested in Congress, exercise of their inherent contempt powers must be confined to the bounds that Congress has fixed.
Measuring the facts in the present case by the word of Congress, I am unable to find a basis in the statute for a contempt citation here. Phrases (1) and (2) of the statute are not applicable here. The majority finds, under phrase (3), that there was disobedience or resistance to a lawful writ, process, order, rule, decree, or command of this Court. Yet none in fact existed to be disobeyed or resisted. The plaintiff’s sought no temporary restraining order or injunction, and none was issued preventing the action taken by the Supervisors. The stipulation requested of the defendants by this court cannot be expanded to fit into any of the things specified in § 401(3).
The word “process,” as used in the statute in its context of writs, orders and decrees, obviously means more than the pen-dency of an appeal or of some other relevant judicial proceeding. It has been traditionally used to encompass such things as a summons, a subpoena, an attachment, a warrant, a mandate, a levy and, generically, other writs and orders. In the context of other orders and writs, “process” can reasonably be understood to mean no more than the sum of more explicit terms, such as “original process,” “summary process,” “mesne process” and “final process,” all of which clearly refer to papers issuing from the court and embodying its commands or judgments, or notice of them. Construed so expansively as the majority’s suggestion of equivalence with the pendency of any relevant judicial proceeding, it would entirely contravene the clearly limiting purpose of the congressional act.
Since the suggested construction of the word “process,” as used in the statute, is original with the majority, it has never-been treated in any reported opinion. The suggestion is inconsistent with the substantially uniform course of decision,, however, while the primary theory of the majority is explicitly at odds with the-precedents in this and other courts.
This court declared itself in Ex parte Buskirk, 4 Cir., 72 F. 14 . There it was held not only that an anticipatory, partial avoidance of a potential decree was not a. *214 punishable contempt within the confines of the limiting statute; violation of a stipulation made in open court, without which mesne process might, and probably would, have issued, was held not to be. Implicit in the decision is a narrow, literal reading of the word “process.”
Buskirk was a party in a judicial proceeding in a district court for a determination of the ownership of a tract of timber. In open court, he entered into a stipulation that none of the timber would be cut until the court had decided the question of ownership. Nevertheless, pending the court’s decision, he began cutting the timber and intentionally removed it beyond the reach of the court. This court held because of the statute, “[hjowever reprehensible such conduct * * * may have been * * * it nevertheless did not constitute a contempt to the court or its orders.”
My brothers now overrule Buskirk without deigning to mention it.
Our own decision in Buskirk is not an aberration. It is the exemplar of uniform decision. Four of our sister circuits have embraced the same construction of the statute, and have done so in no uncertain terms. 3 No court of appeals, until now, has toyed with any other reading.
I cannot dismiss all of these holdings on the basis of an asserted distinction of the Second Circuit’s decision in Berry. The basis of the asserted distinction of Berry was not present in the Second Circuit’s earlier Probst decision upon which Berry depended, or in our decision in Buskirk or in those of the First, Seventh and Eighth Circuits.
The holding in Lamb v. Cramer, 285 U.S. 217 , 52 S.Ct. 315 , is of some comfort to the majority, but I find myself unable to accept it as an authoritative interpretation of a statute which the Supreme Court and the lower courts did not even mention.
Lamb was a lawyer, who, assertedly in payment of accrued legal fees, accepted a transfer of some of the property in litigation, upon which the adverse parties had specific liens. Concurrently, a supplemental bill in equity to require his restoration of the property to the custody of the court was filed and a rule issued against Lamb to show.. cause why he should not return the property to. the custody of the court or be held in contempt. Lamb claimed immunity from service, and the district court upheld him in both cases. In both cases, the Court of Appeals for the Fifth Circuit reversed, holding that service upon Lamb was good, and that the supplemental bill in equity and the citation were each appropriate means to require restoration of the property to the control of the court, and that each means might be pursued concurrently. 4 Lamb appealed both eases to the Supreme Court, which affirmed the Fifth Circuit in each. 5
Clearly, the only purpose of the citation in Lamb was the procurement of the return of property in the actual possession and under the control of the attorney, an officer of the court. It was not to punish him or to compel him to replace out of his own funds dissipated assets or money. The most significant thing ■ about the Lamb cases, however, is that attention in both the Court of Appeals for the Fifth Circuit and the Supreme Court was focused upon a very different problem. In neither court was there a citation of the statute with which we are concerned or of the cases which had established a uni *215 form interpretation of it. The Supreme Court wrote in Lamb v. Cramer as if the affront had been to itself. One can only suppose that it did so because the statute had not been called to its attention, 6 for the Supreme Court had made it perfectly clear in Robinson 7 that the subordinate, statutory federal courts are subject to the statute, and that their powers to punish contempts are effectively limited by it.
If the holding in Lamb may be regarded as an interpretation of the unmentioned statute, one may more reasonably conclude that it was an application of § 401 (2) rather than § 401(3) with which, alone, we are concerned. 8
The large issue in this case was the constitutionality of a continuing program of disbursement of tuition grants allegedly for the purpose of continued maintenance of segregated school systems. The payment of such tuition grants for one-half year did not abort the appeal or frustrate adjudication of the large issue. It was an unwarranted disbursement of public funds, but the Supervisors, themselves, are not now in possession of any part of those moneys. They are not officers of this court punishable under § 401(2) for official transgressions. What is attempted here is far from what was accomplished in Lamb v. Cramer, and, to me, is inconsistent with an appropriate deference to an explicit congressional command of unquestioned constitutionality which limits our jurisdiction and authority.
I would not quibble with the majority’s-finding of fact that the conduct of the Supervisors was contemptible, but I do dissent from their conclusion that it was contemptuous and punishable as such, when the conclusion is dependent upon a reading of the statute which relegates it to meaninglessness. Such an unsympathetic construction is particularly inappropriate when the statute was clearly intended to inhibit our authority, has been declared by the Supreme Court to have that effect and has been uniformly construed by the courts of appeals in accordance with that evident intention. Such a statute limiting the jurisdiction of the federal courts is largely enforceable only by the limited courts, themselves. Above all other statutory commands, courts should be scrupulous to conform themselves to jurisdictional statutes, so that they do not appropriate to themselves powers which have been constitutionally withdrawn from them. If we exceed our authority, if we exercise powers we do not possess, the Supreme Court may correct us, but with the swelling *216 volume of demand upon that court, the congressional scheme can be effectively and promptly implemented only if the lower courts take great care to move only within the lawful boundaries of their authority.
Respectfully, I dissent from the conclusion that the Supervisors be held in contempt.
. Merrimack River Savings Bank v. Clay Center, 219 U.S. 527 , 31 S.Ct. 295 .
. Ex parte Robinson, 19 Wall. 505 , 86 U.S. 505 .
. Parker v. United States, 1 Cir., 126 F.2d 370, 380 ; In re Probst, 2 Cir., 205 F. 512 ; Berry v. Midtown Service Corp., 2 Cir., 104 F.2d 107 ; In re Sixth & Wisconsin Tower, 7 Cir., 108 F.2d 538 ; Dakota . Corp. v. Slope County, 8 Cir., 75 F.2d 584 ; and see United States v. Day, C.C. N.J., 6 Am.L.Reg. 632, 25 Fed.Cas.No. 14,934, p. 793; In re Rice, C.C.Ala., 181 F. 217 .
. Schmitt v. Lamb, 5 Cir., 48 F.2d 533 (the case arising from the supplemental bill in equity), and Cramer v. Lamb, 5 Cir., 48 F.2d 537 (the case arising upon the citation).
. Lamb v. Cramer, 285 U.S. 217 , 52 S.Ct. 315 (the case arising on the citation) and Lamb v. Schmitt, Receiver, 285 U.S. 222 , 52 S.Ct. 317 , 761 L.Ed. 720 (the case arising upon the supplemental bill in equity).
. It was of little moment in any event, for clearly the court had the power to compel the attorney to restore the property which he had taken with notice not only of the pendency of the proceeding, but with notice as well of the specific liens held by the adverse parties.
. Ex parte Robinson, 19 Wall. 505 , 86 U.S. 505 .
. It may be that Lamb did not seek protection of the statute because of ignorance of it. More probably, he did not because he thought the court’s authority sufficiently clear under § 401(2) to warrant his concentration of his defense in an attack upon the service of process. In either event, since, under the plain holdings of the relevant authorities at that time, the contempt proceeding was not arguably authorized by § 401(3), but probably was authorized by § 401(2), the Supreme Court’s opinion, with no reference to either, cannot be construed as an authoritative construction of § 401 (3). There are too many reasonable explanations of the Supreme Court’s action in that case to permit acceptance of the least likely and the most attenuated.
Twenty-four years after Lamb’s case was decided, the Supreme Court held that an enrolled attorney was not an officer of the court within the meaning of § 401 ’ (2), Cammer v. United States, 350 U.S. 399 , 76 S.Ct. 456 , 100 L.Ed. 474 , but that was not the xirevailing notion when Lamb sought to retain the fruits of his malfeasance. See e. g. Ex parte Bradley, 7 Wall. 364 , 74 U.S. 364, 374 , 19 L.Ed. 214 ; Tanner v. United States, 10 Cir., 62 F. 601 ; Ex parte Davis, C.C.Fla., 112 F. 139 . If the explanation of Lamb’s failure, and that of the courts which decided his case, to deal with the statute does not lie in an absence of awareness of it, speculation about the reason for ignoring it must be against a background of the law as it was understood at the time.