State v. North Shore Boom & Driving Co.

Decision Date26 July 1909
Citation55 Wash. 1,103 P. 426
CourtWashington Supreme Court

Appeal from Superior Court, Pacific County; A. E. Rice, Judge.

Contempt proceedings by the State, on the relation of the Nicomen Boom Company, against the North Shore Boom & Driving Company and others for a violation of an order of court. From a judgment adjudging defendants not guilty, relator appeals. Reversed and remanded.

W. W. Cotton, Welsh & Welsh, and James G. Wilson for appellant.

Chas E. Miller and W. H. Abel, for respondents.


This proceeding was instituted by relator, the Nicomen Boom Company, in whom the right of booming logs in the North river in Pacific county, Wash., has been adjudged by this court to be. The parties are not strangers to this court. Consequently a rehearsal of the differences arising between them in their efforts to have determined the prior rights of boomage under the state law in North river is not now necessary. Reference to the cases of Nicomen Boom Co. v. North Shore Co., 40 Wash. 315, 82 P. 412, North Shore Boom Co. v. Nicomen Boom Co. (Wash.) 101 P. 48, and State ex rel. North Shore Boom Co. v. Nicomen Boom Co. (Wash.) 102 P. 394 will be sufficient. From the judgment of this court entered on the 6th day of December, 1905, the respondent North Shore Boom & Driving Company prosecuted an appeal to the Supreme Court of the United States. To secure its rights pending the appeal, it obtained an order fixing a supersedeas in the sum of $10,000. This order was made on the 17th day of January 1906. The North Shore Boom Company has operated its booms in defiance of the rights of the relator. On the 13th day of March, 1907, the North Shore Boom Company, conceiving that its appeal might not be effectual, in that it might be determined that an appeal would not lie from the judgment of this court, or if the Supreme Court of the United States should hold that its attempted removal of the case to the federal court was in fact a proceeding by writ of review, in that it asked for a review of the judgment of the superior court rather than of this court, sued out a writ of review, upon which a supersedeas was fixed in the sum of $20,000. Thereafter the first appeal or writ (whichever it may be called is not now material) was dismissed in the Supreme Court of the United States upon motion of the respondent the North Shore Boom Company. The last proceeding went to final hearing, and was determined on the 23d day of February, 1909. The court refused to consider the merits of the controversy, and dismissed the writ for the want of jurisdiction, holding that no federal question was involved. North Shore Boom & Driving Co. v. Nicomen Boom Co., 212 U.S. 406, 29 S.Ct. 355, 53 L.Ed. 574. Pending these attempts to review the judgment of the state courts, respondent proceeded with its booming operations in the North river. Acting upon the assumption that the first attempt to appeal was ineffectual for any purpose, and that the second attempted review was insufficient to confer jurisdiction on the federal courts or to warrant a supersedeas, relator instituted this proceeding, setting up the facts in detail as we have briefly outlined them, and praying for an order adjudging respondent guilty of contempt; that its officers and stockholders be fined in the sum of $300 each, and imprisoned for a period of six months; and that it recover the sum of $27,000 alleged to be the damages sustained by reason of the unwarranted interruption of its booming privileges. Respondent upon rule to show cause set up the two supersedeas orders and the proceedings in the federal court in justification of its conduct. After trial the court found that the respondent had not been guilty of contempt; the real basis for this finding being that respondent the North Shore Boom Company was operating under a supersedeas issued by this court.

Respondents have moved to dismiss the appeal upon the ground that no appeal lies from an order purging a respondent in contempt proceedings. This rule would no doubt prevail in all cases where a party was cited to answer to a charge of contumacy affecting the dignity and ordinary processes of the court, and will be now followed by us in so far as the attempt to impose a fine and imprisonment on respondents is concerned. But the law of this state goes further than the rules of the common law governing contempts and in cases of this kind permits the award of damages resulting to the private interest affected by the order of the court which has been disregarded and set at naught. It is a quasi civil action, and, when so regarded, either party aggrieved has the right of appeal. It is even expressly provided in the chapter on contempts and their punishments (section 5811, Ballinger's Ann. Codes & St. [section 1480, Pierce's Code]) that an appeal will lie 'in like manner and with like effect as from judgment in an action.' The distinction as well as the rule governing this class of cases is well stated in the case of Enoch Morgan's Sons Co. v. Gibson, 122 F. 423, 59 C. C. A. 49: 'It is a well-known fact, to which allusion has twice been made in decisions of this court ( In re Reese, 107 F. 942, 945, 47 C. C. A. 87, 90; In re Nevitt, 117 F. 448, 458, 54 C. C. A. 622), People, etc., v. Diedrich, 141 Ill. 669, 670, 30 N.E. 1038, and cases cited. The case in hand is obviously a contempt proceeding of a civil and remedial nature as distinguished from one of a public or criminal character. The public had no special concern in the question whether the appellee had used words on his labels which violated the injunction, but the appellant was deeply interested in that question, since, if the charge was true, it affected a property right which he had succeeded in establishing. Moreover, if that right was being invaded by the appellee, notwithstanding the decree, the court which entered the decree could with no greater propriety refuse relief when the fact was called to its attention by the appellant than it could withhold an execution to collect a judgment which it had rendered. We are of opinion, therefore, that the final action of a court in such a case as the one at bar, whether it be an order discharging the rule to show cause or one imposing a fine tantamount to the injury that has been sustained by the complaining party, is subject to review, and that in equity cases like the one at hand, where the object is to enforce the provisions of a final decree and compel obedience thereto, the remedy is by such an appeal as was taken.' Also Vilter Mnfg. Co. v. Humphrey, 132 Wis. 587, 112 N.W. 1095, 13 L. R. A. (N. S.) 591; State ex rel. Denham v. Superior Court, 28 Wash. 591, 68 P. 1051. The decision of the Supreme Court of the United States in the principal case has with one exception which we shall hereafter notice disposed of the other grounds relied on to dismiss the appeal. The motion is denied.

One of the grounds urged on the motion to dismiss really goes to the merits of the case, and will be so treated. It is stated by counsel as follows: 'The judgment for the disobedience of which the contempt proceedings were instituted is a void judgment, and was entered by the court below in excess of its jurisdiction, and the respondents were not bound to obey it.' We do not think this position tenable. Although the judgment entered by the lower court upon remand of the case decided in 40 Wash. 315, 82 P. 415, went, in the opinion of respondents, further than the law and facts warranted (it has since been held otherwise), and included boundaries beyond the true limit of relator's property, the judgment would not be for that reason void. Jurisdiction is to be determined by reference to the subject-matter of a proposed or pending action. In the principal case the subject-matter was not to determine the boundaries between the areas claimed by the parties, but to find out which of them was entitled to booming privileges in North river under the state law. The statute (Laws 1890, p. 470, et seq.) provides that a company may be organized, and, having complied with certain statutory requirements, shall have the first right of booming logs in the stream over which it seeks to assert its jurisdiction. The Legislature has seen fit to give to these companies a quasi public character. Boom companies are in effect common carriers, and, to encourage them as a necessary adjunct to a leading industry upon which the welfare and prosperity of a large part of our population depends, has declared that the first in time shall be first in right. So long, then, as this question is before the court, it is within its jurisdiction, and its judgment cannot be collaterally questioned or disregarded because the court may have made an error in fixing the boundaries of the boom grounds.

Much of the briefs and time in oral argument was taken up with a discussion of the nature of the first proceeding to remove the principal case from the state to the federal court. On the one hand, it is contended that it was an attempt to appeal where no appeal is contemplated or permitted in law or by the practice in the federal courts, and for that reason absolutely void; while, on the other hand, it is insisted that the admitted writ of review which was subsequently sued out was sued out solely in the interest of prudence and...

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2 cases
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    • United States
    • Arkansas Supreme Court
    • February 11, 1924
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  • State v. North Shore Boom & Driving Co.
    • United States
    • Washington Supreme Court
    • February 19, 1910
    ...CO. v. NORTH SHORE BOOM & DRIVING CO. et al. Supreme Court of Washington, En Banc.February 19, 1910 On rehearing. For former opinion, see 103 P. 426. CHADWICK, In the main case, decided July 26, 1909 (103 P. 426), we held the defendant boom company, J. W. Kleeb, John F. Hobi, and W. H. Abel......

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