Pitcock v. State

• Citation: 121 S.W. 742,91 Ark. 527
• Parties: PITCOCK v. STATE
• Decision Date: 12 July 1909
• Court: Supreme Court of Arkansas

121 S.W. 742

91 Ark. 527

PITCOCK v. STATE

Supreme Court of Arkansas

July 12, 1909

Certiorari to Pulaski Chancery Court; John E. Martineau Chancellor; reversed.

Judgment dismissed.

Hal L Norwood, Attorney General, and James H. Harrod, for petitioner.

1. Where an injunction is issued without authority of law, that is, in a matter over which the court had no jurisdiction, no one can be punished for disobeying it. 43 Ark. 63. Under the laws of this State no court has jurisdiction to grant a temporary injunction unless (1) it is specially authorized by statute; or (2) it affirmatively appears from the complaint that the plaintiff is entitled to the relief demanded, and that the acts sought to be restrained would, if committed, cause great or irreparable injury. Kirby's Dig., § 3965. Before a temporary restraining order can be granted to prevent the violation of a contract, the contract must be free from doubt. High on Inj., § 695. The complaint on its face shows that it is a suit against the State, and is ruled by 123 U.S. 443. It does not show that plaintiff would suffer great or irreparable injury. High on Inj., § 35.

2. If the injunction was legally issued, petitioner could not be held to have violated it. Unless notice has been given of intention to apply for an injunction, it, when issued, must be indorsed on the summons and served by the sheriff. Kirby's Dig., §§ 3982, 3983. Mere verbal notice is not sufficient. The law provides that notices must be in writing, and how served. Kirby's Dig., §§ 6267-8. However, petitioner's testimony is undisputed that he had given the order to bring the prisoners in before counsel spoke to him over the telephone.

Murphy, Coleman & Lewis, for respondent.

If the complaint in the case of Arkansas Brick & Manufacturing Company v. Pitcock was such that the court had the power to hear and determine the allegations therein, it had jurisdiction to issue the injunction. This court has expressly held that the lower court had jurisdiction in such cases. 70 Ark. 588. See also 1 Black on Judgments, § 215; 34 Ark. 110.

When the court upon a hearing of the complaint and in the exercise of its discretion decides that a temporary restraining order should go, it is the duty of the party against whom the injunction was issued to obey it. He has his remedy, if it is improvidently issued, to apply to the court itself to dissolve it or modify its terms, and he cannot on his own motion disobey the injunction and then purge himself of contempt by claiming that the court had no jurisdiction to issue the order. High on Inj., § 847; Bailey on Jurisdiction, § 3041, p. 336; 78 Ark. 266; 9 N.Y. 263; 232 Ill. 402; 114 N.W. 628; Bailey on Jur., §§ 2, 3, 4; 10 Am. & Eng. Enc. of L. 1105; 25 Mo.App. 639; 144 F. 284; 143 F. 375; 62 F. 826.

2. If a party is informed of the application for an injunction, it is not necessary that he have notice that the injunction has actually issued. Kirby's Dig., § 3984; High on Injunctions, §§ 852, 853; 144 F. 1011; Id. 279.

MCCULLOCH, C. J. HART, J., WOOD, J., concurs. BATTLE, J., dissents.

OPINION

MCCULLOCH, C. J.

Certiorari to the chancery court of Pulaski County to review and quash the judgment of that court adjudging petitioner, J. A. Pitcock, to be guilty of contempt in disobeying an injunction.

On January 14, 1909, the Arkansas Brick & Manufacturing Company, a corporation, instituted suit in the Pulaski Chancery Court against appellant J. A. Pitcock, superintendent of the Arkansas State Penitentiary, and Geo. W. Donaghey, Governor of the State, O. C. Ludwig, Secretary of State, Hal L. Norwood, Attorney General, Jno. R. Jobe, Auditor of State, and Guy B. Tucker, State Commissioner of Mines and Agriculture, composing the Board of Commissioners of the Arkansas State Penitentiary, to restrain them from violating an alleged contract which had been entered into between them and the plaintiff for furnishing to the latter of the labor of State convicts. It is alleged in the complaint that on February 3, 1899, a written contract was duly entered into between the Arkansas Chair Factory, a corporation, and the superintendent and financial agent of the State Penitentiary, with the approval of said Board of Commissioners, whereby the convicts of the State were hired to said corporation at price of fifty cents per day for each man worked, for a period commencing on that day and ending January 1, 1909; that, according to the terms of said contract, it was agreed that forty able-bodied convicts were hired for the first year, and as many thereafter as needed, not exceeding two hundred; that the board should furnish all necessary buildings to be used under the contract (except certain ones specified), and also clothe and feed the convicts; that prior to July 31, 1899, said Arkansas Chair Factory, with the consent of said board, assigned said contract to plaintiff; that on the last-named date said contract was by mutual consent of the parties amended so as to permit the working of convicts by plaintiff outside of the walls of the Penitentiary in manufacturing, agriculture, railway building and other pursuits, and that said board should furnish to plaintiff three hundred able-bodied men on demand of the plaintiff after January 1, 1900, and that plaintiff should work not less than one hundred men at all times; that plaintiff complied with its part of the contract, and at great expense prepared to work said convicts; that the Board of Commissioners complied with said contract except that after January 1, 1901, they failed to furnish the number of convicts required by the contract, and only furnished a far less number; that since the first day of January, 1900, and up to the time of the commencement of this suit, the plaintiff has continuously demanded from said board the amount of convict labor called for by said contract, but that the board and superintendent at various times and under various pretexts failed to furnish the amount of labor so demanded, but that in each instance, when the requisite number were not furnished on demand, said Board of Commissioners represented to the plaintiff that it would subsequently make good the deficit thus caused by furnishing to said plaintiff such an amount of convict labor as to make it receive eventually the aggregate number of convicts called for by said contract, and that "in each instance the said superintendent and board expressly promised to make good said deficit and adopted resolutions to this effect, which were spread at length upon the minutes of said board, and the plaintiff could not other than rely upon said representations and promises, and for this reason it accepted the same;" that, "in reliance upon said representations and promises of the board and believing that the State would carry out its contract with it in all respects, it was induced to make the large expenditures hereinbefore stated, which were absolutely necessary in order to prepare the proper facilities for making it profitable to the plaintiff to use the amount of labor due it under said contract, and which it fully expected would eventually be furnished to it;" that the said members of the Board of Commissioners, pretending to act as the Board of Penitentiary Commissioners, had on the 14th day of January, 1909, made and were about to enforce a resolution in substance declaring said contract to be at an end and directing the superintendent of the Penitentiary to withdraw all convicts from the premises and works of the plaintiff and place them on the State farm or within the walls of the Penitentiary.

It is further alleged in the complaint "that the Board had no authority in law to make said pretended order, and that the same is null and void; that the said board had no authority to take the said convicts from the plaintiff until the balance of the convict labor due to the plaintiff, as aforesaid, has been furnished to the plaintiff in full; that the said resolution was passed, not because of any default on the part of the plaintiff in carrying out the terms of said contract, and not because the board does not acknowledge the violation of said contract on its part as herein alleged, but solely on the ground that the board pretends to possess the arbitrary power of withholding said labor from the plaintiff on the theory that the State is not amenable to any legal proceeding against it, and that the members of the board can shield themselves by this protection in favor of the State."

The prayer of the complaint is as follows: "Premises considered, the plaintiff prays that a temporary restraining order be made, restraining the defendants, and each of them, from taking any action looking to the withdrawal of the convicts now in its possession, and particularly from taking from plaintiff's brick works any of the men now engaged in labor therein, and requiring said Board of Penitentiary Commissioners, and the superintendent of said Penitentiary, to carry out the terms of the agreement hereinbefore set forth--that is, to require said board and superintendent of the Penitentiary to furnish the plaintiff a sufficient number of able-bodied convicts to repay it for the labor of the convicts so withheld, withdrawn and taken from it by the Board of Commissioners as set forth herein. Plaintiff prays that upon the final hearing a decree be entered as above prayed, and that the said order of the board directing the superintendent to take away from the plaintiff the convicts now held by it, and refusing to carry out the terms of the agreements before stated, be declared null and void."

It will be seen from the foregoing statement of facts that the contract, dated February 3, 1899, as amended on July 31 1899, is the same contract which was the subject of litigation in ...