McFarland v. United States

• Decision Date: 14 December 1923
• Docket Number: 3163,3164.
• Citation: 295 F. 648
• Parties: McFARLAND v. UNITED STATES. E. PORTER PRODUCTS CO. v. SAME.
• Court: U.S. Court of Appeals — Seventh Circuit

295 F. 648

McFARLAND v. UNITED STATES.

E. PORTER PRODUCTS CO. v. SAME.

Nos. 3163, 3164.

United States Court of Appeals, Seventh Circuit.

December 14, 1923

Rehearing Denied in No. 3163, February 7, 1924.

Charles H. Hamill, of Chicago, Ill., for plaintiffs in error.

Edwin A. Olson and C. W. Middlekauff, both of Chicago, Ill., for the United States.

Before BAKER and EVANS, Circuit Judges.

EVAN A EVANS, Circuit Judge.

For violating an injunctional order issued in an equity suit brought under section 22 of title 2 of the National Prohibition Act (Comp. St. Ann. Supp. 1923, Sec. 10138 1/2k) the two above-named plaintiffs in error were punished as for criminal contempt. A third party, Patrick McFarland, was discharged. The writs of error present some different questions, though most of the controverted issues are the same. Argued together on the same record, they will be disposed of in one opinion.

The temporary 'writ of injunction,' as it is termed, was issued without notice, and is attacked as absolutely void (because of equity rule No. 73 and section 17 of the Clayton Act (Comp. St. Sec. 1243a)). Its violation, so it is contended, affords no basis for criminal contempt proceedings.

This same question was presented to us, and decided adversely to plaintiffs in error in Lewinsohn v. United States (C.C.A.) 278 F. 421. Counsel for plaintiffs in error while recognizing the effect of this holding, earnestly urge us to reconsider the views there expressed, and to reconcile section 22 of the National Prohibition Act with the practices prescribed by equity rule No. 73 and the section of the Clayton Act referred to. We have given further study to the question, with the result that our conclusion respecting the intent and purpose of Congress in enacting section 22 of the National Prohibition Act has been confirmed.

That there is a repugnancy between section 22 of this latter act and equity rule No. 73 and section 17 of the Clayton Act must be conceded. It is also apparent, we think, that it was the obvious and the expressed intention of Congress, in enacting the National Prohibition Act, to make an exception to the general rule and prescribe a specific code of practice or procedure which governs equity suits authorized by the act to be brought to abate nuisances. When Congress provided, 'If it is made to appear by affidavits or otherwise to the satisfaction of the court, or judge in vacation, that such nuisance exists, a temporary writ of injunction shall forthwith issue restraining the defendant from conducting or permitting the continuance of such nuisance until the conclusion of the trial,' it left no room for doubt respecting its intention to authorize the issuance of injunctions without notice which were to continue until 'the conclusion of the trial.' In the present suit it appeared that defendant answered the bill of complaint, never sought to modify or vacate the 'writ of injunction,' and while the suit was thus pending and before its trial committed the alleged contempt.

It is also urged that plaintiffs in error were tried without being arraigned. This contention likewise is rejected. Passing all question of the effect of an answer and appearance by counsel in response to a charge that defendants willfully disobeyed a court's order, it is apparent that an arraignment, or its equivalent, took place. When the parties were brought before the court, counsel for the government stated, 'I ask your honor that the defendants be arraigned. ' The court ordered the defendants to stand up, and they were asked whether they knew 'the contents of this information that has been filed against you. ' The attorney representing the defendants then advised his 'client not to answer.' Counsel for the government...