though there is later a determination of lack of jurisdiction, an injunction has the force of law during its pendency
How later courts described this case
- though there is later a determination of lack of jurisdiction, an injunction has the force of law during its pendency
- “[Ejxcept in case of plain usurpation, a court has jurisdiction to determine its own jurisdiction.”
Written by the judges who cited it.
The opinion
HUTCHESON, Circuit Judge
(dissenting).
I agree with my associates that the trial from which this appeal comes was one for criminal contempt, McCann v. New York Stock Exchange, 2 Cir., 80 F.2d 211 . I agree, too, that “Since a prosecution for a criminal contempt is between the public and the defendant therein, such prosecution is not a part of the cause out of which the contempt arose”, Russell v. United States, 8 Cir., 86 F.2d 389, 392 , and, therefore, that “The ultimate fate of the civil case is of no consequence at all, though it would be controlling in a case of civil contempt”. I agree with them, too, that even where the federal court is without jurisdiction of a particular cause for want of the requisites giving the federal court jurisdiction, if it has in fact asserted jurisdiction, acts of interference with the subject matter of the suit or with property in custody of the court may be punished as acts in contempt of the court as a court. O’Malley v. United States, 8 Cir., 128 F.2d 676 ; Converse v. Highway Const. Co., 6 Cir., 107 F.2d 127 , 127 A.L.R. 860 ; Cramer v. Lamb, 5 Cir., 48 F.2d 537 ; Lamb v. Cramer, 285 U.S. 217 , 52 S.Ct. 315 , 76 L.Ed. 715 ; and that this is so even where the court did not have the jurisdiction it assumed to exercise, United States v. Shipp, 203 U.S. 563 , 27 S.Ct. 165 , 51 L. *863 Ed. 319 , 8 Ann.Cas. 265. I even agree with them that the law ought to be as they have written it that one who, as Carter did here, deliberately defies a temporary order of the court, which does not purport to interfere with his person or his property, as this order did not, ought not to have the right to defend a criminal contempt brought for his disobedience by asserting that the order he disobeyed was void for want of authority of the court to make it, and that the court was, therefore, without authority to punish him for contempt for disobeying. But I think it clear that the law as set down both in the statute and in the decisions is to the contrary. First, as to the statute, 28 U.S.C.A. § 385 . Declaring the power of the courts to punish con-tempts of their authority, the statute proceeds to limit that power thus, “Such power to punish contempts shall not be construed to extend to any cases except * * * and the disobedience * * * by any party * * * or other person to any lawful writ, process, order, rule, decree, or command of the said courts.” (Emphasis supplied.) And next to the authorities. Gathered in a note to Sec. 385, Title 28, beginning at page 336 and again at page 124 of the pocket part are numerous authorities all pronouncing, without “variableness, neither shadow of turning”, that if the injunction was “for any reason totally invalid,” no person is required to obey it and “no violation or disregard of it could constitute a punishable contempt”, and that persons held under judgments of contempt or disobedience to such void orders will be released on habeas corpus. That this is the law, I think, the majority does not deny. The view it takes is that the order was not void because though the court did not have jurisdiction of the cause, it had jurisdiction to determine whether it did or did not have such jurisdiction, and while it was considering that question 'and until it determined that it did not, all its orders, must be obeyed. The mere statement of this proposition as applied to this case, I think, carries its own refutation, for here the judge having already made up his mind and declared when he issued the temporary injunction that he had jurisdiction,, continued to be of that mind in issuing a permanent injunction in identical terms.
I understand my associates would concede, if the disobedience here charged had been of the permanent injunction, that the conviction could not stand. I cannot see that the fact that the order disobeyed was a temporary one at all changes the picture. For the temporary injunction was not an order merely preserving the subject matter from destruction or even preserving the status quo, while the court was determining its jurisdiction. It was a sweeping mandate based on an affirmation that jurisdiction existed, disrupting everything that had gone before, completely demolishing the status quo and taking under complete surveillance all of the activities which were the subject of the civil suit. 1 *864 The final order, identical in words and figures with the temporary order, merely made it permanent. To treat such an order, as the majority do, as one, like that in Shipp’s case, merely preserving the subject matter and the telegram of Carter, which in terms sought merely to preserve the “status quo”, as a similar act to the murder of the defendant in Shipp’s case, is, I think, without warrant either in the authorities or in the principles which underlie them. While, therefore, I deplore the act of Carter in taking the law into his own hands, as I have deplored violent acts in disobedience of an injunction when the violators were on the other side of the docket, Brotherhood of Ry. & S. S. Clerks, etc., v. Tex. & N. O. R. Co., D.C., 24 F.2d 426 , at pages 431 and 432, I cannot subscribe to the view of the majority that in acting as he did, Carter violated a lawful order of the court and, therefore, could be found guilty of the offense for which he was convicted. As to Locke v. United States, 5 Cir., 75 F.2d 157 , which the majority cites, I sat, and helped to reach the opinion, in that case. With deference, that case has no points of similarity to this one, for there the United States had a right to sue in its own courts, the court had jurisdiction of the suit, its judgment in issuing the injunctive order was not void, but merely erroneous. It is the law that in order to warrant jurisdiction in a federal court, allegations of a bill should be specific and should clearly show federal jurisdiction, Abbott v. Eastern Massachusetts St. Ry. Co., 1 Cir., 19 F.2d 463 . We have decided in the Brown case, opinion this day handed down, that the bill here contained not a single allegation which would confer jurisdiction. I firmly believe that no good citizen ought to take it upon himself to disobey orders of a court on the ground alone that they have been issued without authority, but should obey them until properly set aside unless, indeed, the void orders deprive him of his liberty or his property. I deplore the action of Carter in this case in setting himself up as the judge of the validity of the court’s order. But I cannot concur in the judgment of affirmance, because I believe it runs counter to the law as it has been and is written. I respectfully dissent.
“And the Court haying jurisdiction in the premises:
“Now, Therefore, Be It Ordered, Adjudged and Decreed by the Court that Harry Brown, Thelma Metcalf, Leo Carter, Frank J. Cappallo and Floyd Starkey, as individuals and as agents or representatives of the aforesaid Union, and the Hotel and Restaurant Employees International Alliance and Bartenders’ International League of America, Local No. 563, an unincorporated association of Mobile County, Alabama, and to all known persons whose unlawful acts have been complained of, be, and the same are ordered to forthwith cease and desist from:
“1. Unlawfully picketing complainants’ place of business.
“2. Unlawfully boycotting, by disseminating false and fraudulent statements in writing and by word of mouth, complainants’ place of business.
“3. Unlawfully disseminating false and fraudulent statements in writing and by word of mouth, concerning complainants’ place of business, and the working conditions of complainants’ employees.
“4. Interfering with the delivery of food, beverage and merchandise used or to be used by complainants in the legal pursuit of their business.
“5. Interfering with complainants’ personnel and complainants’ customers by false, fraudulent or insulting remarks.
“6. Threatening to use strong measures or commit acts of violence against complainants, their agents, servants or employees.
“It is Further' Ordered, Adjudged and Decreed that this temporary injunction shall be void, after the expiration of five days; and this cause shall be heard on its merits at 10 A. M., July 6, 1942.
“It is Further Ordered, as a condition to the issuance of this said temporary restraining order, that complainants shall file an undertaking in an amount which the Court fixes at $250.00, to recompense those herein enjoined for any loss, expense or damage caused by the improvi *864 dent or erroneous issuance of 'this order, including all reasonable costs, together with a reasonable attorney’s fee and expense of defense against the order or against the granting of any injunctive relief sought in the same proceeding and subsequently denied by the Court.”