State ex rel. Norris v. District Court First Judicial District
| Decision Date | 16 January 1893 |
| Citation | 53 N.W. 1157,52 Minn. 283 |
| Parties | State ex rel. Michael Norris et al. v. District Court First Judicial District |
| Court | Minnesota Supreme Court |
Certiorari issued October 5, 1892, to the District Court First Judicial District, Williston, J., to review proceedings taken against Michael Norris and Samuel Manice, relators, for contempt of court in disobeying a writ of injunction.
Jacob R. Myers, Henry H. Myers and Benjamin F. Myers, three brothers, were in August, 1892, owners in fee of one undivided third of thirteen lots in Martin's Division in Duluth. The Duluth Transfer Railway Company surveyed and located its railway across these lots and employed the Calumet Construction Company to grade and complete its road. This Construction Company sublet the work to Foley, Grant & Guthrie. They in turn sublet the grading to W. P. Ryan, and he sublet a portion to Michael Norris and Samuel Manice. The Railway Company attempted to acquire the right of way for its railroad over these lots. It filed its petition and obtained an order appointing commissioners to appraise damages. The Myers brothers appealed to this court from the order. The commissioners however proceeded to appraise the damages and made their award, and the Railway Company paid the amount into court, and its contractors commenced to grade the road across these lots. The Myers brothers, on September 12, 1892 commenced an action against the Railway Company and the Construction Company and all the subcontractors to enjoin and restrain them from grading and constructing the railroad across the lots. They obtained from Hon. Ira B. Mills, Judge of the Fourteenth Judicial District, then holding court at Duluth, an order ex parte for a preliminary injunction, and the writ was on September 13, 1892, issued and duly served. The defendants on the next day served notice of appeal to this court from the order granting the injunction, and gave a supersedeas undertaking. Norris and Manice then resumed the work of grading for the railway.
On September 22, 1892, at Pine City, the plaintiffs presented to Hon. F. M. Crosby, Judge of the First Judicial District affidavits showing the issuing and service of the preliminary injunction and the subsequent doings and construction work of the defendants, and stating that the two Judges of the Eleventh Judicial District were both pecuniarily interested in the construction of this Terminal Railway, and obtained from Judge Crosby an order, that Norris and Manice show cause on September 26, 1892, at Stillwater, Minnesota, before Hon W. C. Williston, the other judge of the First Judicial District, why they should not be punished for contempt in disobeying the preliminary writ of injunction.
On the day appointed, a hearing was had before Judge Williston, and he determined that defendants Norris and Manice were guilty of contempt of court, and imposed a fine of $ 100 upon each of them payable to the Clerk of Court in St. Louis county for the use and benefit of that county. They then obtained this writ of certiorari, and the proceedings were certified to this court for review.
The writ is discharged.
McCordic & Crosby and J. L. Washburn, for relators.
Neither the District Court of the First Judicial District, nor any judge thereof, had any jurisdiction in the premises; either to grant the order to show cause, or to hear and determine the same, or to adjudge the relators to be in contempt, and impose upon them a fine. 1878 G. S. ch. 64, § 5. No showing was made that the judges of the Eleventh Judicial District were interested in this matter, except the presentation of an affidavit stating that Judges Stearns and Ensign were directors of, and interested in the West Duluth Land Company, and that this company had made a contract with the Duluth Transfer Railway Company, under which latter company, through mesne contractors, the relators were constructing a railroad over the lands of Myers brothers. The question whether they are interested in the contempt proceedings depends on the construction of this contract. It provides for the sale of a portion of a terminal railroad built by the West Duluth Land Company and of a right of way over certain of their lands. The contract is dated November 1, 1890, and by its terms it has long since been fully performed. The lands which the relators were enjoined from entering upon are not mentioned in the contract in any way whatever. The interest which disqualifies a judge from acting, must be a pecuniary interest in the result of the proceedings. Sjoberg v. Nordin, 26 Minn. 501.
Even if Judges Stearns and Ensign were disqualified from acting there was no showing of disqualification on the part of Judge Mills, who made the order allowing the writ of injunction, and who is also a judge of the District Court of the Eleventh Judicial District. Laws 1887, ch. 100; Laws 1889, ch. 151.
The ex parte order of Judge Mills in granting the writ of injunction was appealable. Hoffman v. Mann, 11 Minn. 364, (Gil. 262;) Schurmeier v. First Div. St. Paul & Pac. R. Co., 12 Minn. 351, (Gil. 228;) 1858 C. S. ch. 71, § 11; Laws 1861, ch. 22; 1866 G. S. ch. 86, § 6; 1878 G. S. ch. 86, § 6; Gale v. Seifert, 39 Minn. 171; Andrews v. Love, 46 Kan. 264; Bennett v. Hetherington, 41 Iowa 142.
The order granting the injunction having been duly appealed from, and a supersedeas bond having been given under 1878 G. S. ch. 86, § 10, the operation of the order was suspended during the pendency of the appeal. Genet v. President D. & H. Canal Co., 113 N.Y. 472; Hovey v. McDonald, 109 U.S. 150; Howe v. Searing, 6 Bosw. 684; State v. Johnson, 13 Fla. 33.
The writ of injunction was void, as the court had no power to grant it, and it was not incumbent upon the relators to obey it. The premises involved had been duly acquired by the Railway Company by condemnation proceedings. This ex parte injunction amounted therefore to an attempt to dispossess a party in possession of his own premises. A court of equity cannot change the possession of land in conflict, until the merits have been passed upon. The order granting such a writ in this case is void from the beginning, and no punishment should be administered for its disobedience. Arnold v. Bright, 41 Mich. 207; Toledo, A. A. & N. Mich. Ry. Co. v. Detroit, L. & N. R. Co., 61 Mich. 9; McCombs v. Merryhew, 40 Mich. 721; Spofford v. Bangor & Bucksport R. Co., 66 Maine, 51.
The provisions of the statute under the authority of which it is sought to adjudge and determine the relators to be in contempt and punish them therefor, is unconstitutional and inoperative, and under the same no judgment of contempt can be sustained and no punishment administered. The act complained of, is embraced in 1878 G. S. ch. 87, § 1, subd. 5, and is by statute declared to be a misdemeanor. Penal Code, § 122, subd. 4. If a misdemeanor, it is a crime, and punishable as such. 1878 G. S. ch. 87, §§ 3, 12; Penal Code, §§ 3, 4; State v. Becht, 23 Minn. 411.
R. R. Briggs, for respondents.
The relators justify their disobedience of the injunction by claiming that the Duluth Transfer Railway Company had completed condemnation proceedings, and that a right of way over the interest of the Myers brothers had vested in said Railway Company prior to the performance of the work by relators on said land. The commissioners were appointed June 28, 1892. Myers brothers appealed from said order, and filed supersedeas bond on July 9, 1892. The award was made by the commissioners July 12, 1892. Such order appointing commissioners was appealable. There was therefore no valid award, no complete condemnation proceedings on the part of said Railway Company.
Upon an appeal from an order, proceedings on it are stayed and rights under it saved as of the date of the filing of the supersedeas bond. Woolfolk v. Bruns, 45 Minn. 96; State v. Duluth St. Ry. Co., 47 Minn. 369.
No judge of any of the courts of this state can sit in any cause in which he is interested, either directly or indirectly, or in which he would be excluded as a juror. 1878 G. S. ch. 64, § 4. The contract with the West Duluth Land Company means that the Transfer Railway Company will bring the land of the West Duluth Land Company into intimate connection with the entire system of railroads at the head of the lakes. This contract was devised to enrich the Land Company by making its lands available for warehouses, mills, and similar improvements. Every line of said contract is laden with the idea of profit through the instrumentality of the Transfer Company. The Land Company is interested in building and completing this road. This contract is still executory. The connection with the Duluth system of railroads is not yet completed, and it cannot be said with candor that the Land Company and its officers have no interest in the result of this contest. Courtwright v. Strickler, 37 Iowa 386; Diveny v. City of Elmira, 51 N.Y. 506; Bradbury v. Cony, 62 Maine, 223.
An order to show cause is in law a motion, and can be made before a judge of an adjoining district, provided the hearing of said order shall not be at a greater distance from the county seat where the action is pending, than the residence of the judge of the district where such action is pending from such county seat. Judge Mills' residence is in Moorhead, Minnesota, nearly twice as far from the county seat where said action was pending as is Stillwater, where said order to show cause was heard. The last-named city was in an adjoining district, and from that view of the case Judge Williston very properly heard said order.
An ex parte order granting a preliminary injunction is not appealable. Hoffman v. Mann, 11 Minn. 364, (Gil 262;) Schurmeier v. First Div. St. P. & Pac. R. Co., 12 Minn. 351, (Gil....
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