Εικόνες σελίδας
PDF
Ηλεκτρ. έκδοση

than one directly interested in the suit, and | information as to the amount of compensabrought into it for the purpose of punish- tion paid to the employees of themselves or ing a known violation of an order in defi- subcontractors, or to any other persons conance of the authority and power of the templated in the contracts upon which suit court. In such case the proceeding is en- was brought. The court deemed it proper, tirely independent and its prosecution does in view of certain contracts between the not delay the conduct of the action between parties, that these books and papers be the parties to final decree. True it is that opened for inspection for the benefit of the in some cases, as in the Christensen Case, plaintiff. And, after hearing the parties, it 194 U. S., the punishment for contempt was adjudged that if they produce the books which has been held reviewable is for a past they should be liable only for the costs of act of a party in violation of an order made the proceedings, or, in default of payment, for the benefit of the other party. In that suffer imprisonment for a period of sixty case one half of the fine imposed went to days. And if the books and papers were not the United States, and was not intended for produced on or before January 15 a fine of the enforcement of an order in favor of a $250 and costs was imposed, or, in default of party, but rather for the vindication of the payment thereof, imprisonment in the counauthority of the court, and punishment for ty jail for the period of sixty days. We an act done in violation of the court's order, think it is apparent from a perusal of this and it was held that such judgment was in order, in the light of the statement of facts a criminal proceeding and reviewable in the under which it was made, that its object circuit court of appeals. In the present and purpose was to obtain information for case, while it is true that the fine imposed the benefit of the plaintiff in the suit to is not made payable to the opposite party, which the court found it entitled, and that compliance with the order relieves from the punishment of fine and imprisonment, payment, and, in that event, there is no which was in the alternative, was imposed final judgment of either fine or imprison- not for the vindication of the dignity or aument. thority for the court, in the interests of the public, but in order to secure, for the benefit of the plaintiff, a compliance with the order of the court as to the production of the books. The case clearly falls within the class of contempt proceedings which are not criminal in their nature, and are not reviewable before final decree. The proceed

"It may not be always easy," said the learned justice, speaking for the court in the Conkey Case, "to classify a particular act as belonging to either one of these two classes [speaking of vindicatory and remedial proceedings]. It may partake of the characteristics of both. A significant and general determinative feature is that the acting is against a party, the compliance with is by one party to a suit, in disobedience of a special order made in behalf of the other. Yet sometimes the disobedience may be of such a character and in such a manner as to indicate a contempt of the court rather than a disregard of the rights of the adverse party."

In view of the principles which we deem settled by the adjudications referred to, the question decisive of the present case, therefore, is: Was the judgment rendered in the contempt proceeding criminal in its nature, and having for its object the vindication of the authority of the court, or was it one in the nature of a proceeding to enforce an order seeking the protection of the rights of the party to the suit for whose benefit it was made?

The certificate does not fully indicate the character of the action in which the order was made; yet sufficient appears from which it is to be inferred that the action before the court was one in which it was necessary for the protection of the plaintiff that an inspection of the books and papers of the defendant be had. The defendants were required to produce in the office of the clerk the time books, cash books, etc., containing

the order avoids the punishment, and there is nothing in the nature of a criminal suit or judgment imposed for public purposes upon a defendant in a criminal proceeding.

It may be true, as said in argument, that, unless the party complies with the order, he may be subjected to fine or imprisonment; and, if the order cannot be reviewed until after final decree, it may come too late to be of any benefit to the party aggrieved. But the power to punish for contempt is inherent in the authority of courts, and is necessary to the administration of justice, and part of the inconvenience to which a citizen is subject in a community governed by law regulated by orderly judicial procedure. As has been said, while the party may suffer imprisonment, "he carries the keys of the prison in his own pocket" (Re Nevitt, 54 C. C. A. 622, 117 Fed. 461), and, by compliance with the order of the court, may deliver himself from punishment.

But, whatever the hardship, the question now before the court is as to the authority of the circuit court of appeals to review judg ments in contempt proceedings. In the circuit court of appeals act, as construed by this court, the jurisdiction of the circuit

court of appeals is extended to the right to | Limitation of actions-mandamus-laches. review judgments entered before final decree 2. Mandamus to compel the levy of a in the action out of which the contempt pro- tax to satisfy municipal warrants will not ceedings arose where the order is final and be refused on the theory that the relators in a proceeding of a criminal nature. Be-sonable time, to the prejudice of the rights have slept upon their rights for an unreayond this, the jurisdiction of the court has of respondents, or of other interested pernot been carried, and, in our opinion, no sons, where, in some form, legal proceedings right of review exists in such a case as is for the collection of these warrants have shown in the certificate before us, in advance been prosecuted by various holders in differof a final decree in the case in which the ent courts up to the commencement of the order was made. mandamus proceedings, without beneficial results.†

[No. 178.]

It is urged by counsel for plaintiff in error that the only authority of the circuit court to make an order for the production of books and papers in a common-law action is under § 724 of the Revised Statutes of the Argued January 24, 25, 1907. Decided FebUnited States (U. S. Comp. Stat. 1901, p. 583), providing for the productions of pa

ruary 25, 1907.

pers after issue joined. But the question IN ERROR to the Supreme Court of the

Territory of Oklahoma to review a judg certified is not as to the lack of authority of the circuit court to make the, order for ment which affirmed a judgment of the Diswant of jurisdiction, a question which trict Court of Logan County, in that terrimight arise upon a habeas corpus proceed-tory, awarding mandamus to compel the ing, but concerns the right of the circuit levy of a tax to satisfy municipal warrants.

court of appeals to review an order made in the circuit court, undertaking to punish for contempt for violation of an order made in other than a proceeding of a criminal character. The court of appeals act of 1891 gives no right to review other than final judgments in the district and circuit courts, except in injunction orders, as provided in § 7 of the act. McLish v. Roff, 141 U. S. 661, 668, 35 L. ed. 893, 895, 12 Sup. Ct. Rep.

118.

For the reasons stated we think the Circuit Court of Appeals has no jurisdiction to review the judgment set forth in the certificate, and the question certified will be answered in the negative.

Affirmed.

See same case below, 14 Okla. 284, 78 Pac. 108.

The facts are stated in the opinion. Messrs. A. H. Huston, L. E. Payson, William R. Benham, James Hepburn, and Laurence & Huston for plaintiffs in error.

Messrs. Frank Dale and A. G. C. Bierer for defendants in error.

Mr. Justice Day delivered the opinion of the court:

The original action was a proceeding in mandamus commenced in the district court of Logan county, Oklahoma territory, July 23, 1903, by Turner and Kirkwood against the mayor and councilmen of the city of Guthrie. The petitioners obtained a writ of

Mr. Justice Peckham took no part in the mandamus in the district court to compel decision of this case.

JOHN W. DUKE, Mayor, and William T.
Walker et al., Councilmen of the City of
Guthrie, Plffs. in Err.,

V.

C. W. TURNER and James A. Kirkwood.

Limitation of actions-mandamus.

1. A proceeding in mandamus cannot be deemed to be governed by the limitations prescribed by Okla. Code, §§ 18, 23, for civil actions. in view of the provision of § 694 of such Code, that pleadings in mandamus are to be construed and may be amended and issues joined and the proceedings had in the same manner as in a civil action, and of the declaration in § 687, that writs of mandamus may not be issued where there is a plain and adequate remedy in the ordinary

course of law.*

the city officials, for the payment of certain warrants, to levy a tax upon the property of persons residing in the territory covered by various former "provisional governments," and known as Guthrie proper, East Guthrie, West Guthrie, and Capitol Hill, now included in the city of Guthrie.

These warrants were issued in pursuance of a special act of the territorial legislature, approved December 25, 1890. 1 Wilson's Rev. & Anno. Stat. 260, 261. This act was the subject of consideration in this court, its validity was sustained, and its history will be found in Guthrie Nat. Bank v. Guthrie, 173 U. S. 528, 43 L. ed. 796, 19 Sup. Ct. Rep. 513. The act is set forth in the margin of the report of that case at P. 530, L. ed. at p. 797, Sup. Ct. Rep. at p. 514. The warrants sued upon are seventeen in number, all bearing the date of July 1, 1893, and maturing in various years, from

*Ed. Note.-For cases in point, see vol. 33, Cent. Dig. Mandamus, § 284. †Ed. Note.-For cases in point, see vol. 33, Cent. Dig. Mandamus, § 285.

July 1, 1894, to July 1, 1898, inclusive. ¡ motion to dismiss said action, which motion
These warrants are in the following form: was sustained,
was sustained, and the case dismissed.
Shortly after the dismissal of the original

Warrant of the city of Guthrie, Oklahoma mandamus case Turner and Kirkwood

[blocks in formation]

Treasurer of the city of Guthrie:

One year after date pay to the order of Harper S. Cunningham, receiver National Bank, Guthrie, the sum of five hundred and fifty-four and 15.100 dollars with interest thereon at the rate of 6 per centum per annum, from June 3, 1891, from any moneys which shall arise from special levy for the payment of city warrants issued under the provisions of chapter No. 14, of the Statutes of Oklahoma, providing for the payment of indebtedness of the provisional governments of the cities of Guthrie, East Guthrie, West Guthrie, and Capitol Hill, upon the subdivision of Guthrie known as East Guthrie. By the order of the city council, July 1,

1893.

A. M. McElhinney, Mayor. Attest: E. G. Milliken, City Clerk.

The supreme court of the territory preceded its opinion with the following statement:

brought suit against the city of Guthrie upon these same warrants, wherein a judg ment against the city for the amount of the warrants was prayed for; they failed in this suit in the district court and appealed to the supreme court, where the judgment of the lower court was affirmed. [13 Okla. 26, 73 Pac. 283.]

"On the 23d day of July, 1903, after the final decision in this court in the case of Turner v. Guthrie, this mandamus proceeding was commenced against the mayor and councilmen, the same being in all respects similar to and identical with the original mandamus proceeding brought by W. H. Gray, receiver, upon the same warrants in 1895. The return and answer of the alternative writ sets forth the same defense as was alleged in the return to the proceedings brought by Gray, receiver, and also alleges the bar to the action of the statute of limitations. Trial was had before the court, wherein it was agreed that the allegations set forth in the fourth answer or return of the defendants to the alternative writ are true, and which show the facts substantially as above set forth. Thereupon the court rendered judgment for the plaintiffs below, and allowed a peremptory writ of mandamus against plaintiffs in error, from which judgment and final order the plaintiffs in error appeal to this court." [14 Okla. 285, 78 Pac. 108.]

The supreme court of the territory affirmed the judgment of the district court upon the ground that the statute of limitations, which is also the defense made in the case upon which the decision of the appeal to this court turns, did not begin o run in favor of the municipal corporation upon the obligation evidenced by the war

"This is the third time that these warrants have been brought before this court. W. H. Gray, receiver of the National Bank of Guthrie, and successor to Harper S. Cunningham, on the 7th day of September, 1895, commenced a mandamus proceeding, identical with this, in the district court of Logan county, for the purpose of compelling the then mayor and councilmen of the city of Guthrie to levy a tax to provide a fund for the payments of these warrants; the district court allowed the writ, but the case was appealed to this court, and, on the twelfth day of February, 1897, was reversed. [5 Okla. 188, 48 Pac. 106.] After this reversal nothing whatever was done by the holder of these warrants in the way of tak-rants until the municipality had provided ing any steps toward collecting them for more than four years thereafter. But after the decision in the case of the Guthrie Nat. Bank v. Guthrie was rendered in the Supreme Court of the United States [173 U. S. 528, 43 L. ed. 796, 19 Sup. Ct. Rep. 513] the holders of these warrants who had lain dormant during the years made another move. The old case of Gray v. Martin, after it had been reversed and remanded, had been dropped from the docket, and on the 28th day of June, 1901, Turner and Kirkwood filed their motion as the successors in interest of Gray, to have the case redocketed, and also filed on the same day an application to have the case revived in their names, as the successors in interest of Gray, and on the same day they filed their

funds by which payment could be made.

The authorities are much in conflict as to whether a statute of limitations, witnout express words to that effect, governs a proceeding in mandamus as though it were an ordinary civil action. Some of the cases hold that the statute of limitations applies which would govern an ordinary action to enforce the same right.

Other cases hold that the statute of lim itations does not apply as it would to ordinary civil actions, but the relator is only barred from relief where he has slept upon his rights an unreasonable time, particularly when the delay has been prejudicial to the rights of the respondent. The cases pro and con are collected in a note to § 30b, High on Extraordinary Legal Remedies, 3d ed.

The question is not a new one in this | writ of mandamus may be obtained, and the court; it was under consideration in Chap-case is directly in point, owing to the simiman v. Douglas County, 107 U. S. 348, 27 larity of the Codes of Ohio and Oklahoma. L. ed. 378, 2 Sup. Ct. Rep. 62. That case The statute of limitation relied upon in was a bill in equity filed September 10, 1877, the case at bar is the three years' limitato compel the county of Douglas to surren- tion, contained in second paragraph, § 18, der possession of two certain tracts of land Oklahoma Code, 2 Wilson's Rev. & Anno. to which the county had acquired title Stat. 973, 975, as to statutory liabilities, through deed made by Chapman, March 5, and § 23, regulating the time for the be1859, or, in case the county elected to re- ginning of a new action to one year after tain and hold the land, that it be compelled reversal or failure of a former action. to pay the reasonable price and value there- These sections in article 3, "Time of Comof to the complainant. The land had been mencing Civil Actions," are as follows: conveyed for a "poor farm." The county made a payment on the land and gave its notes, secured by mortgage, payable in one, two, three, and four years. Afterwards the supreme court of the state decided that, by the purchase of lands for such a purpose, a county could not be bound to pay the purchase money at any specified time or to secure it by mortgage upon the land, but was limited to a payment in cash and to the levy of an annual tax to create a fund wherewith to pay the residue. The notes remaining unpaid, the bill was filed in equity for the purpose above stated. In considering the nature of the relief and the applicability of the statute of limitations Mr. Justice Matthews, speaking for the court (p. 355, L. ed. p. 381, Sup. Ct. Rep. p. 68), said:

"And if in such cases a proceeding in mandamus should be considered to be the more appropriate, and, perhaps, the only effective, remedy, it also is not embraced in the statute of limitations prescribed generally for civil actions. The writ may well be refused when the relator has slept upon his rights for an unreasonable time, and especially if the delay has been prejudical to the defendant, or to the rights of other persons, though what laches, in the assertion of a clear legal right, would be sufficient to justify a refusal of the remedy by mandamus, must depend, in a great measure, on the character and circumstances of the particular case. Chinn v. Trustees, 32 Ohio St. 236; Moses, Mandamus, 190. There is no statute of limitations in Nebraska applicable to that proceeding."

It will be observed that the learned justice refers in the citation just given to Chinn v. Trustees, supra, and Moses on Mandamus, 190. In that treatise the author gives his preference for the English rule, that the party should suffer no unreasonable delay in the opinion and discretion of the court, as more just and equitable than the rule countenanced by some of the American cases.

The case of Chinn v. Trustees, supra, holds that under the Ohio Code there is no strict limitation as to the time wherein a

"Sec. 18. Civil actions, other than for the recovery of real property, can only be brought within the following periods, after the cause of action shall have accrued, and not afterwards:

"First. Within five years, an action upon any contract, agreement, or promise in writing.

"Second. Within three years, an action upon a contract not in writing, express or implied; an action upon a liability created by statute other than forfeiture or penalty.

"Sec. 23. If any action be commenced within due time, and a judgment thereon for the plaintiff be reversed, or if the plaintiff fail in such action otherwise than upon the merits, and the time limited for the same shall have expired, the plaintiff, or, if he die and the cause of action survive, his representatives, may commence a new action within one year after the reversal or failure."

The limitation of three years, said to be applicable here, is upon an action created by statute other than forfeiture or penalty; but this language is in a section limiting civil actions other than for the recovery of real property, and the language used in § 23 has reference to actions of like character.

The proceeding in mandamus is regulated in article 33, Oklahoma Code, 2 Wilson's Rev. & Anno. Stat. 1130. That the proceeding is not regarded as a civil action is shown in § 694, Code, 2 Wilson's Rev. & Anno. Stat. 1131, which provides that pleadings are to be construed and may be amended in the same manner "as pleadings in a civil action," and issues joined, tried, and the proceedings had, "in the same manner as in a civil action." civil action." The Oklahoma Code (§ 687) also declares that writs of mandamus may not be issued where there is a plain and adequate remedy in the ordinary course of the law.

In Chinn v. Trustees, ubi supra, Judge Scott, delivering the opinion of the Ohio supreme court, said:

"The Code of Civil Procedure limits the time within which an action can be brought 'upon a liability created by statute, other

right to obtain a writ of mandamus, nor does it appear that the municipal corporation has been in anywise prejudiced by the delay. In some form legal warfare seems to have been waged for the collection of these warrants by various holders in different courts without beneficial results until the present action.

than a forfeiture or penalty,' to six years. | asserting their rights such as would bar the 14. This provision is found in title 2 of the Code, the object of which is to define and prescribe the time of commencing civil actions.' The civil action of the Code is a substitute for all such judicial proceedings as, prior thereto, were known either as actions at law or suits in equity. § 3. By § 8, the limitations of this title are expressly confined to civil actions. But proceedings in mandamus were never regarded as an action at law, or a suit in equity, and are not, therefore, a civil action within the meaning of the Code. Mandamus is an extraordinary or supplementary remedy, which cannot be resorted to if the party has any adequate, specific remedy. The Code provides for and regulates this remedy, but does not recognize it as a civil action."

This language is no less applicable to the Oklahoma Code. The proceeding in mandamus is not a civil action, and therefore not within the terms of the statute of limitations.

Following, then, the rule recognized and approved in Chapman v. Douglas County, supra, the question is, Should the writ be refused because the relator has slept upon his rights for an unreasonable time, and has the delay caused prejudice to the defendant, or to the rights of other interested persons? We perceive nothing in the record to warrant that conclusion. Gray, as receiver of the National Bank of Guthrie and successor of Cunningham, to whom the warrants were payable, on September 7, 1895, began a suit in mandamus in Logan county, Oklahoma. He prevailed in that court. The case was reversed on February 12, 1897, by the supreme court of the territory (5 Okla. 188, 48 Pac. 106), and was remanded and refiled in the district court, April 7, 1897. The validity of the act was in controversy in the case of Guthrie Nat. Bank v. Guthrie, and sustained in this court, April 3, 1899 (173 U. S. 528, 43 L. ed. 796, 19 Sup. Ct. Rep. 513), reversing the supreme court of the territory.

While we do not put our decision upon the same grounds as the Supreme Court of the territory, we think its conclusion was right, and its judgment will be affirmed.

D. S. OSBORNE, J. K. P. Carroll, A. J.
Barnes, and G. L. Baker, Suing as Trus-
tees of Carrick Academy of the County of
Franklin, etc., Plffs. in Err.,

V.

R. A. CLARK and Winchester Normal
College.

Error to state court-Federal question-how
raised.

1. References to the Dartmouth College Case in the opinions of the state courts in educational institution is public or private, discussing the question whether a certain the decision of which question would determine the validity of state legislation under the state Constitution, do not show that the contract clause of the Federal Constitution was relied upon to invalidate such legislation, so as to sustain a writ of error from the Supreme Court of the United States.

Error to state court-Federal question

how raised.

state law under the Federal Constitution is 2. The question as to the validity of a not necessarily involved so as to sustain a writ of error from the Supreme Court of the United States to a state court merely because the state law logically might have been assailed as invalid under the Federal Constitution upon grounds more or less similar to those actually taken.

[No. 159.]

On the 28th day of June, 1901, Turner and Kirkwood, as the successors in inter- Argued January 16, 1907. Decided Febru

est to Gray, having purchased the warrants, as they allege, on January 5, 1901, filed their motion to dismiss the original action, which was sustained. They then (on June 28, 1901) brought suit against the city of Guthrie for judgment upon the warrants against the city, in which they failed in the district court, and on appeal to the supreme court, that court holding that the remedy, if any, was by mandamus. 13 Okla. 26, 73 Pac. 283. On the 23d day of July, 1903, this mandamus proceeding was begun.

These facts do not disclose any laches in

I

ary 25, 1907.

N ERROR to the Supreme Court of the State of Tennessee to review a decree which reversed a decree of the Court of Chancery Appeals in that state, affirming a decree of the Chancery Court of Franklin County, overruling a demurrer to a bill to set aside a lease of the property of an educational institution. Dismissed for want of jurisdiction.

See same case below, 112 Tenn. 483, 80 S. W. 64.

The facts are stated in the opinion.

« ΠροηγούμενηΣυνέχεια »