Merrimack River Savings Bank v. City of Clay Center

• Decision Date: 20 February 1911
• Docket Number: No. 604,604
• Citation: 55 L.Ed. 320,31 S.Ct. 295,219 U.S. 527
• Parties: MERRIMACK RIVER SAVINGS BANK, Appt., v. CITY OF CLAY CENTER et al. Return to rule
• Court: U.S. Supreme Court

219 U.S. 527

31 S.Ct. 295

55 L.Ed. 320

MERRIMACK RIVER SAVINGS BANK, Appt.,

v CITY OF CLAY CENTER et al.

No. 604.

Return to rule argued January 26, 1911.

Decided February 20, 1911.

Messrs. F. L. Williams, C. C. Coleman, D. R. Hite, D. W. Mulvane, and C. E. Gault for appellant.

[Argument of Counsel from pages 528-530 intentionally omitted] Messrs. F. B. Dawes and R. C. Miller for respondents.

[Argument of Counsel from pages 530-532 intentionally omitted] Mr. Justice Lurton delivered the opinion of the court:

The Merrimack River Savings Bank filed a bill in equity in the circuit court of the United States for the district of Kansas, claiming to be a creditor of the light and power company by bonds secured by mortgage upon its plant, property, and franchises, against the city of Clay Center, the Clay Center Light & Power Company, and certain individuals, officials of said city. The bill averred that the Clay Center Light & Power Company was a corporation owning and conducting a light and power plant at Clay Center under a perpetual franchise, authorizing it to place and maintain a line of poles and wires upon the streets of that city; that the city, claiming that its franchise had expired, had, through its coun- cil, of which the individual defendants were members, required said company to remove its poles and wires from the public streets, and that the officials named as defendants were threatening to cut down its poles and destroy its wires thereon, and thus destroy all possibility of operating its plant, to the irreparable ruin of the security to which the complainant must look for the payment of its bonds. A temporary injunction was issued to prevent the destruction of the lines of poles and wires as threatened. A demurrer to the bill for want of jurisdiction in the circuit court as a court of the United States was sustained and the bill dismissed. An appeal to this court was allowed and the injunction continued pending the appeal. Unpon a hearing in this court, the appeal was dismissed without opinion. [218 U. S. 665, 54 L. ed. 1201, 31 Sup. Ct. Rep. 222.]

The present petition alleges that after this court had made an order dismissing said appeal, but before any mandate had issued or could issue under the rules of this court, and pending the right of petitioners to file an application for a rehearing, since filed and now pending, certain of the defendants to said appeal, namely, George W. Hanna, O. L. Slade, W. D. Vincent, S. D. Tripp, and G. P. Randall, had, by force and violence, cut down many of the poles and destroyed much of the cable and wires stretched thereon, and had put the light and power company out of business and disabled it so that it could not exercise its franchise or carry on its operations. It is averred that the said defendants did thus destroy the subject-matter of the suit, knowing that this appeal was pending and that this court had not lost control over the controversy, and that no mandate had issued and could not issue under the rules. The petition concludes by praying that the individual defendants named be cited and required to appear before this court and 'show cause, if any they have, why they should not be proceeded against as for contempt of this court.' Such a rule was made, and the defendants have appeared and made defense.

The respondents have moved to discharge the rule, because the petition fails to show that they have in any way violated any injunction, rule, order, or mandate of this court. This is bottomed, first, upon the claim that the injunction, which was continued pending the appeal to this court, is the injunction of the circuit court, and that any violation is cognizable only in the circuit court; and second, upon the claim that if that be so, that the petition fails to show any facts which constitute a contempt of this court.

The plain purpose of the order continuing the injunction pending this appeal was to preserve the subject-matter of the litigation until the rights of the complaint could be heard and decided. It is well settled that the force and effect of a decree dismissing a bill and discharging an injunction is neither suspended nor annulled as a mere consequence of an appeal to this court, even if a supersedeas is allowed. Slaughterhouse Cases, 10 Wall. 273, 297, 19 L. ed. 915, 922; Hovey v. McDonald, 109 U. S. 150, 161, 27 L. ed. 888, 891, 3 Sup. Ct. Rep. 136; Leonard v. Ozark Land Co. 115 U. S. 465, 29 L. ed. 445, 6 Sup. Ct. Rep. 127; Knox County v. Harshman, 132 U. S. 14, 33 L. ed. 249, 10 Sup. Ct. Rep. 8. That the circuit court, to the end that the ...