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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 punisnment 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 “It may not be always easy,” said the public, but in order to secure, for the benelearned justice, speaking for the court in the fit of the plaintiff, a compliance with the orConkey Case, “to classify a particular act der of the court as to the production of the as belonging to either one of these two class-books. The case clearly falls within the es [speaking of vindicatory and remedial class of contempt proceedings which are not proceedings]. It may partake of the char- criminal in their nature, and are not reacteristics of both. A significant and gen-viewable before final decree. The proceederal determinative feature is that the acting is against a party, the compliance with is by one party to a suit, in disobedience of the order avoids the punishment, and there a special order made in behalf of the other. is nothing in the nature of a criminal suit Yet sometimes the disobedience may be of or judgment imposed for public purposes upsuch a character and in such a manner as on a defendant in a criminal proceeding. to indicate a contempt of the court rather It may be true, as said in argument, that, than a disregard of the rights of the adverse unless the party complies with the order, he party.”
may be subjected to fine or imprisonment; In view of the principles which we deem and, if the order cannot be reviewed until settled by the adjudications referred to, the after final decree, it may come too late to question decisive of the present case, there be of any benefit to the party aggrieved. fore, is: Was the judgment rendered in the But the power to punish for contempt is incontempt proceeding criminal in its nature, herent in the authority of courts, and is and having for its object the vindication of necessary to the administration of justice, the authority of the court, or was it one in and part of the inconvenience to which a the nature of a proceeding to enforce an or- citizen is subject in a community governed der seeking the protection of the rights of by law regulated by orderly judicial procethe party to the suit for whose benefit it dure. As has been said, while the party may was made ?
suffer imprisonment, "he carries the keys The certificate does not fully indicate the of the prison in his own pocket” (Re Nevitt, character of the action in which the order 54 C. C. A. 622, 117 Fed. 461), and, by comwas made; yet sufficient appears from which pliance with the order of the court, may it is to be inferred that the action before deliver himself from punishment. the court was one in which it was necessary But, whatever the hardship, the question for the protection of the plaintiff that an now before the court is as to the authority of inspection of the books and papers of the the circuit court of appeals to review judg. defendant be had. The defendants were re- ments in contempt proceedings. In the cirquired to produce in the office of the clerk cuit court of appeals act, as construed by the time books, cash books, etc., containing 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- have slept upon their rights for an unreayond this, the jurisdiction of the court has of respondents, or of other interested per
sonable time, to the prejudice of the rights not 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 It is urged by counsel for plaintiff in er
results. ror that the only authority of the circuit court to make an order for the production of
[No. 178.] 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.
ruary 25, 1907.
N to certified is not as to the lack of authority
a . 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.
Affirmed. court of appeals to review an order made in the circuit court, undertaking to punish for
See same case below, 14 Okla. 284, 78 Pac.
108. contempt for violation of an order made in
The facts are stated in the opinion. other than a proceeding of a criminal character. The
Messrs. A. H. Huston, L. E. Payson, Wilgives no right to review other than final liam R. Benham, James Hepburn, and Laujudgments in the district and circuit courts,
rence & Huston for plaintiffs in error.
Messrs. Frank Dale and A. G. C. Bierer except in injunction orders, as provided in §
for defendants in error. 7 of the act. McLish v. Roff, 141 U. S. 661, 668, 35 L. ed. 893, 895, 12 Sup. Ct. Rep. 118.
Mr. Justice Day delivered the opinion of For the reasons stated we think the Cir-the court: cuit Court of Appeals has no jurisdiction to
The original action was a proceeding in review the judgment set forth in the cer- mandamus commenced in the district court tificate, and the question certified will be of Logan county, Oklahoma territory, July answered in the negative.
23, 1903, by Turner and Kirkwood against
the mayor and councilmen of the city of Mr. Justice Peckham took no part in the mandamus in the district court to compel
Guthrie. The petitioners obtained a writ of decision of this case.
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 govern. JOHN W. DUKE, Mayor, and William T. ments,” and known as Guthrie proper, East Walker et al., Councilmen of the City of Guthrie, West Guthrie, and Capitol Hill, Guthrie, Plffs. in Err.,
now included in the city of Guthrie.
These warrants were issued in pursuance C. W. TURNER and James A. Kirkwood.
of a special act of the territorial legislaLimitation of actions-mandamus.
ture, approved December 25, 1890. I Wil. 1. A proceeding in mandamus cannot be son's Rev. & Anno. Stat. 260, 261. This act deemed to be governed by the limitations was the subject of consideration in this prescribed by Okla. Code, $$ 18, 23, for civil court, its validity was sustained, and its his. actions. in view of the provision of $ 694 of tory will be found in Guthrie Nat. Bank v. such Code, that pleadings in mandamus are Guthrie, 173 U. S. 528, 43 L. ed. 796, 19 to be construed and may be amended and is. Sup. Ct. Rep. 513. The act is set forth in sues joined and the proceedings had in the the margin of the report of that case at same manner as in a civil action, and of the declaration in § 687, that writs of man
p. 530, L. ed. at p. 797, Sup. Ct. Rep. at p. damus may not be issued where there is a 514. The warrants sued upon are seventeen plain and adequate remedy in the ordinary in number, all bearing the date of July 1, ovurse of law. *
1893, and maturing in various years, from •Ed. Note. For cases in point, see vol. 33, Cent. Dig. Mandamus, $ 284. tEd. 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, and the
and the case dismissed.
Shortly after the dismissal of the original Warrant of the city of Guthrie, Oklahoma mandamus
Turner and Kirkwood territory
brought suit against the city of Guthrie $554.15. No. 6.
upon these same warrants, wherein a judgTreasurer of the city of Guthrie:
ment against the city for the amount of the One year after date pay to the order of warrants was prayed for; they failed in this Harper S. Cunningham, receiver National suit in the district court and appealed to Bank, Guthrie, the sum of five hundred and the supreme court, where the judgment of fifty-four and 15.100 dollars with interest the lower court was affirmed. [13 Okla. 26, thereon at the rate of 6 per centum per 73 Pac. 283.] annum, from June 3, 1891, from any moneys “On the 23d day of July, 1903, after the which shall arise from special levy for the final decision in this court in the case of payment of city warrants issued under the Turner v. Guthrie, this mandamus proceedprovisions of chapter No. 14, of the Statutes ing was commenced against the mayor and of Oklahoma, providing for the payment of councilmen, the same being in all respects indebtedness of the provisional governments similar to and identical with the original of the cities of Guthrie, East Guthrie, West mandamus proceeding brought by W. H. Guthrie, and Capitol Hill, upon the sub-Gray, receiver, upon the same warrants in division of Guthrie known as East Guthrie. 1895. The return and answer of the alter
By the order of the city council, July 1, native writ sets forth the same defense as 1893.
was alleged in the return to the proceedings A. M. McElhinney, Mayor. brought by Gray, receiver, and also alleges Attest: E. G. Milliken, City Clerk.
the bar to the action of the statute of lim
itations. Trial was had before the court, The supreme court of the territory pre- wherein it was agreed that the allegations ceded its opinion with the following state- set forth in the fourth answer or return of the ment:
defendants to the alternative writ are true, “This is the third time that these war- and which show the facts substantially as rants have been brought before this court. above set forth. Thereupon the court renW. H. Gray, receiver of the National Bank dered judgment for the plaintiffs below, and of Guthrie, and successor to Harper S. Cun- allowed a peremptory writ of mandamus ningham, on the 7th day of September, 1895, against plaintiffs in error, from which judgcommenced a mandamus proceeding, iden- ment and final order the plaintiffs in error tical with this, in the district court of Lo- appeal to this court." [14 Okla. 285, 78 gan county, for the purpose of compelling Pac. 108.] the then mayor and councilmen of the city The supreme court of the territory afof Guthrie to levy a tax to provide a fundfirmed the judgment of the district court for the payments of these warrants; the upon the ground that the statute of limidistrict court allowed the writ, but the case | tations, which is also the defense made in was appealed to this court, and, on the the case upon which the decision of the twelfth day of February, 1897, was reversed. appeal to this court turns, did not begin v [5 Okla. 188, 48 Pac. 106.] After this re- run in favor of the municipal corporation versal nothing whatever was done by the upon the obligation evidenced by the war. holder of these warrants in the way of tak- rants until the municipality had provided ing any steps toward collecting them for funds by which payment could be made. more than four years thereafter. But after The authorities are much in conflict as to the decision in the case of the Guthrie Nat. whether a statute of limitations, witnout Bank v. Guthrie was rendered in the Su- express words to that effect, governs a propreme Court of the United States [173 U. S. ceeding in mandamus as though it were an 528, 43 L. ed. 796, 19 Sup. Ct. Rep. 513] ordinary civil action. Some of the cases the holders of these warrants who had lain hold that the statute of limitations applies dormant during the years made another which would govern an ordinary action to move. The old case of Gray v. Martin, after enforce the same right. it had been reversed and remanded, had been Other cases hold that the statute of lim dropped from the docket, and on the 28th itations does not apply as it would to orday of June, 1901, Turner and Kirkwood | dinary civil actions, but the relator is only filed their motion as the successors in in- barred from relief where he has slept upon his terest of Gray, to have the case redocketed, rights an unreasonable time, particularly and also filed on the same day an appli- when the delay has been prejudicial to the cation to have the case revived in their rights of the respondent. The cases pro and names, as the successors in interest of con are collected in a note to § 30b, High Gray, and on the same day they filed their I 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 “Sec. 18. Civil actions, other than for the made a payment on the land and gave its recovery of real property, can only be notes, secured by mortgage, payable in one, brought within the following periods, after two, three, and four years. Afterwards the su- the cause of action shall have accrued, and preme court of the state decided that, by not afterwards: the purchase of lands for such a purpose, a
“First. Within five years, an action upon county could not be bound to pay the pur- any contract, agreement, or promise in chase money at any specified time or to se writing. cure it by mortgage upon the land, but was “Second. Within three years, an action limited to a payment in cash and to the upon a contract not in writing, express or levy of an annual tax to create a fund implied; an action upon a liability created wherewith to pay the residue. The notes by statute other than forfeiture or penalty. remaining unpaid, the bill was filed in equity for the purpose above stated. In con- “Sec. 23. If any action be commenced sidering the nature of the relief and the within due time, and a judgment thereon applicability of the statute of limitations for the plaintiff be reversed, or if the plainMr. Justice Matthews, speaking for the tiff fail in such action otherwise than upon court (p. 355, L. ed. p. 381, Sup. Ct. Rep. the merits, and the time limited for the p. 68), said:
same shall have expired, the plaintiff, or, if “And if in such cases a proceeding in he die and the cause of action survive, his mandamus should be considered to be the representatives, may commence a new action more appropriate, and, perhaps, the only within one year after the reversal or faileffective, remedy, it also is not embraced in ure.” the statute of limitations prescribed gener- The limitation of three years, said to be ally for civil actions. The writ may well applicable here, is upon an action created be refused when the relator has slept upon by statute other than forfeiture or penalty; his rights for an unreasonable time, and es- but this language is in a section limiting pecially if the delay has been prejudical to civil actions other than for the recovery of the defendant, or to the rights of other per- real property, and the language used in § sons, though what laches, in the assertion of 23 has reference to actions of like character. a clear legal right, would be sufficient to The proceeding in mandamus is regulated justify, a refusal of the remedy by manda- in article 33, Oklahoma Code, 2 Wilson's mus, must depend, in a great measure, on Rev. & Anno. Stat. 1130. That the proceedthe character and circumstances of the par- ing is not regarded as a civil action is shown ticular case. Chinn v. Trustees, 32 Ohio in $ 694, Code, 2 Wilson's Rev. & Anno. Stat. St. 236; Moses, Mandamus, 190. There is 1131, which provides that pleadings are to no statute of limitations in Nebraska appli- be construed and may be amended in the cable to that proceeding.”
same manner "as pleadings in a civil acIt will be observed that the learned jus- tion,” and issues joined, tried, and the protice refers in the citation just given to ceedings had, "in the same manner as in a Chinn v. Trustees, supra, and Moses on civil action.” The Oklahoma Code (§ 687) Mandamus, 190. In that treatise the au- also declares that writs of mandamus may thor gives his preference for the English not be issued where there is a plain and aderule, that the party should suffer no unrea- quate remedy in the ordinary course of the sonable delay in the opinion and discretion law. of the court, as more just and equitable than In Chinn v. Trustees, ubi supra, Judge the rule countenanced by some of the Amer-Scott, delivering the opinion of the Ohio ican cases.
supreme court, said: The case of Chinn V. Trustees, supra, “The Code of Civil Procedure limits the holds that under the Ohio Code there is no time within which an action can be brought strict limitation as to the time wherein a l'upon a liability created by statute, other
than a forfeiture or penalty,' to six years. I asserting their rights such as would bar the § 14. This provision is found in title 2 of right to obtain a writ of mandamus, nor the Code, the object of which is to define and does it appear that the municipal corporaprescribe “the time of commencing civil ac- tion has been in anywise prejudiced by the tions. The civil action of the Code is a delay. In some form legal warfare seems to substitute for all such judicial proceedings have been waged for the collection of these as, prior thereto, were known either as ac- warrants by various holders in different tions at law or suits in equity. $ 3. By courts without beneficial results until the $ 8, the limitations of this title are express present action. ly confined to civil actions. But proceed- While we do not put our decision upon ings in inandamus were never regarded as the same grounds as the Supreme Court of an action at law, or a suit in equity, and the territory, we think its conclusion was are not, therefore, a civil action within the right, and its judgment will be affirmed. meaning of the Code. Mandamus is an extraordinary supplementary remedy, which cannot be resorted to if the party has any adequate, specific remedy. The Code D. S. OSBORNE, J. K. P. Carroll, A. J. provides for and regulates this remedy, but
Barnes, and G. L. Baker, Suing as Trus
tees of Carrick Academy of the County of does not recognize it as a civil action.”
Franklin, etc., Plffs. in Err., This language is no less applicable to the Oklahoma Code. The proceeding in manda- R. A. CLARK and Winchester Normal mus is not a civil action, and therefore not
College. within the terms of the statute of limitations.
Error to state court-Federal question-how Following, then, the rule recognized and raised. approved in Chapman v. Douglas County,
1. References to the Dartmouth College supra, the question is, Should the writ be Case in the opinions of the state courts in refused because the relator has slept upon educational institution is public or private,
discussing the question whether a certain his rights for an unreasonable time, and has the decision of which question would dethe delay caused prejudice to the defendant, termine the validity of state legislation or to the rights of other interested persons ? under the state Constitution, do not show
We perceive nothing in the record to war that the contract clause of the Federal Conrant that conclusion. Gray, as receiver of stitution was relied upon to invalidate such the National Bank of Guthrie and successor legislation, so as to sustain a writ of error of Cunningham, to whom the warrants were from the Supreme Court of the United
States. payable, on September 7, 1895, began a suit in mandamus in Logan county, Okla- Error to state court-Federal questionhoma.
how raised. case was reversed on February 12, 1897, by state law under the Federal Constitution is
2. The question as to the validity of a the supreme court of the territory (5 Okla. state law under the Federal Constitution is 188, 48 Pac. 106), and was remanded and not necessarily involved so as to sustain a 188, 48 Pac. 106), and was remanded and writ of error from the Supreme Court of refiled in the district court, April 7, 1897. the United States to a state court merely
The validity of the act was in controver- because the state law logically might have sy in the case of Guthrie Nat. Bank v. Guth- been assailed as invalid under the Federal rie, and sustained in this court, April 3, Constitution upon grounds more or less sim1899 (173 U. S. 528, 43 L. ed. 796, 19 Sup. ilar to those actually taken. Ct. Rep. 513), reversing the supreme court of the territory.
[No. 159.] On the 28th day of June, 1901, Turner and Kirkwood, as the successors in inter- Argued January 16, 1907. Decided Februest to Gray, having purchased the warrants,
ary 25, 1907. , N their motion to dismiss the original action. I N ERROR to the Supreme Court of the
State of Tennessee to review a decree which was sustained. They then (on June which reversed a decree of the Court of 28, 1901) brought suit against the city of Chancery Appeals in that state, affirming a Guthrie for judgment upon the warrants decree of the Chancery Court of Franklin against the city, in which they failed in the County, overruling a demurrer to a bill to district court, and on appeal to the supreme set aside a lease of the property of an educourt, that court holding that the remedy, cational institution. Dismissed for want of if any, was by mandamus. 13 Okla. 26, 73 jurisdiction. Pac. 283. On the 23d day of July, 1903, See same case below, 112 Tenn. 483, 80 this mandamus proceeding was begun. S. W. 64.
These facts do not disclose any laches in The facts are stated in the opinion.