#### PEOPLE ex rel. GAYNOR v. McKANE et al.

(Supreme Court, General Term, Second Department.

May 14, 1894.)

Contempt—Disobeying Injunction—Validity op Obdeb.

Where a judge grants a temporary injunction on an application which he had power to entertain, the injunction order, though it may he erroneous, is valid until reversed or set aside, and disobedience thereof is a criminal contempt.

' Appeal from, special term, Kings county.

Application Tby William J. Gaynor for an injunction against John Y. McKane, Nicholas J. Johnson, Harlan Crandall, James H. Cropsey, and Bichard V. B. Newton. From orders adjudging each defendant guilty of contempt of court, and imposing on each punishment by fine and imprisonment, defendants appeal. Affirmed.

The appellants were adjudged guilty of resistance willfully offered to, and willful disobedience of, an injunction order granted by Justice Joseph F. Barnard on November 6, 1893. The injunction was granted in an action in which the relator was the plaintiff, and the appellants, McKane, Johnson, Crandall, Cropsey, and others, were defendants. In the complaint in that action, it was alleged that the plaintiff was an elector of the state, and entitled to vote in the' county of Kings, and had been nominated for the office of justice of the supreme court by the Republican party and'various Democratic bodies, and was to be voted for at the election on November 7th; that the defendant McKane was chief of police of the town of Gravesend, in Kings county, and the other defendants were inspectors of election of the six election districts of said town, and that they had conspired together to make up a false and fraudulent registry list of the voters of said town, and, under the color of such false registry list, to permit persons to vote in said town who were not entitled so to do; that the plaintiff had been prevented by the defendants from inspecting or copying said registry lists, and persons sent by him to take such copies had been arrested, by the direction of said McKane, and committed to jail, without any opportunity to give bail; that said defendants intended to refuse to allow watchers appointed by the Republican organization to enter the polling booths, or be present at the voting, or at the counting of the ballots. The judgment prayed that said defendants be enjoined from preventing the persons appointed as such watchers entering and remaining in the polling places of the election district of said town to which they should be appointed, and their acting as watchers, and performing all duties pertaining to their office, including the right to see the ballots given out and votes cast, and watching and overseeing the canvass of the ballots. Upon the complaint duly verified, and upon accompanying affidavits, a preliminary injunction was granted, substantially as prayed for in the complaint. The appellants were charged in this proceeding with willful resistance to, and disobedience of, said injunction, and have appealed from the orders adjudging them guilty upon such charges.

Argued before BBOWN, P. J., and DYKMAN and PRATT, JJ.

James Troy, for appellants.

Jesse Johnson, for respondent.

BROWN, P. J.

If the supreme court had jurisdiction of the subject-matter of the action brought against the appellants, and if Justice Barnard had jurisdiction to grant the preliminary injunction, for disobeying or resisting which the appellants have been convicted, that order must be treated as a valid and binding order of the court, and, as such, was to be obeyed, until it was revoked by *982subsequent order made in the same action. People v. Sturtevant, 9 N. Y. 263; Railroad Co. v. Ramsey, 45 N. Y. 644; Mayor, etc., of New York v. New York & S. I. Ferry Co., 64 N. Y. 624; People v. Dwyer, 90 N. Y. 402; People v. Van Buren, 136 N. Y. 252, 32 N. E. 775. “Jurisdiction,” in the strict meaning of the term, as applied to judicial officers and tribunals, means no more than the power lawfully existing to hear and determine a cause. It is the power lawfully conferred to deal with the general subject involved in the action. Bouv. Law Diet.; And. Law Diet. It does not depend upon the ultimate existence of a good cause of action in the plaintiff, in the particular case before the court. “It is the power to adjudge concerning the general question involved, and is not dependent upon the state of facts which may appear in a particular case.” Hunt v. Hunt, 72 N. Y. 217. “Jurisdiction does not relate to the right of the parties, as between each other, but to the power of the court. The question of its existence is an abstract inquiry, not involving the existence of an equity to be enforced nor the right of the plaintiff to avail himself of it, if it exists. It precedes those questions, and a decision upholding the jurisdiction of the court is entirely consistent with a denial of any equity in the plaintiff, or in any one else.” People v. Sturtevant, 9 N. Y. 263. The constitution of the state gives to the supreme court general jurisdiction in equity; and the Code of Civil Procedure defines that jurisdiction to be all that was possessed by the court of chancery of England on the 4th day of July, 1776, with the exceptions, additions, and limitations created by the laws of the state. The English court of chancery granted the equitable remedy of injunction by final decree and interlocutory writ, and the subject-matter of the action was therefore within the jurisdiction of the court. But, while the power in the supreme court to award the relief by final decree is general, the Code of Procedure has abolished the interlocutory writ, and substituted in its place a temporary injunction, to be granted by order, and has prescribed rides governing the application for, and the granting of, such an order. In this respect, the jurisdiction of the court or judge is not general, but limited; and such temporary order must be made in compliance with the provisions of the Code, or it will be treated as void. Spears v. Mathews, 66 N. Y. 127. The question is thus presented whether Justice Barnard acquired jurisdiction to grant the temporary injunction. It is provided in the Code, inter alia (section 603), that, when the right to an injunction depends upon the nature of the action, a temporary injunction may be granted, when it appears from the complaint that the plaintiff demands, and is entitled to, a judgment against the defendant, restraining the commission or continuance of an act, the commission or continuance of which during the pendency of the action would produce injury to the plaintiff. Jurisdiction, under this provision, is made dependent upon the presentation to the court or judge of a complaint setting forth facts upon which the plaintiff claims to be entitled to, and upon which he demands, equitable relief; but it is not dependent upon the conclusion which the judge makes upon the facts of the complaint. Whether they constitute an equitable cause of action, *983or create a case within equitable cognizance, is a judicial question to be decided by the judge to whom the application is made. His power to decide does not depend upon the correctness of his decision. Jurisdiction is entirely independent of the manner of its exercise. It involves the power to decide either way upon the facts presented to the court. When Justice Barnard granted the injunction we are now considering, he had presented to him a verified complaint, in which the plaintiff demanded equitable relief, and which set forth the facts upon which such relief was claimed, and upon those facts application for a temporary order was made. Upon the presentation of such a complaint, it became his duty to consider and decide whether or not to grant the order asked for. He had power to consider the case, and decide the application made to him. His determination upon the facts before him, and the order which he issued, cannot, therefore, be said to be void. Clothed as he was with the judicial power to decide, the order made was valid. It may have been erroneous, but it was not void; and it cannot be reviewed or questioned in any collateral proceeding, but must be respected and obeyed until vacated or set aside in the same suit in which it was granted. The court having jurisdiction of the subject-matter of the action, and the justice jurisdiction to consider and decide the application or the temporary order, it was the duty of the appellants to obey it; and disobedience or resistance to its mandate was an offense punishable as a criminal contempt. Code Civ. Proc. § 8.

The question whether the complaint contained facts calling for the equitable interference of the court, or, in other words, whether it set forth a valid cause of action in the plaintiff, did not arise upon the application to punish for a criminal contempt, and hence is not before this court for review. This rule, which is applicable only to cases o£ criminal contempt, to which class the present proceeding belongs, is to be distinguished from the rule applied in eases of civil contempt. In the latter class, it is essential, to sustain a conviction, that there shall exist, not only jurisdiction in the court or officer granting the order which has been disobeyed, but also a valid cause of action in the aggrieved party; and this results from the fact that a civil contempt is not an offense against the dignity of the court, but against the party in whose behalf the mandate of the court has been issued, and a fine is imposed solely as indemnity to the injured party. And, as there can be no injury when there is no right to maintain the suit, it is essential that this right should exist, in order to sustain a conviction, and that question is always open for examination upon_appeal. But it is otherwise in a case of criminal contempt. That offense involves no element of personal injury. It is of a public character, and indictable. It is directed against the dignity and authority of the court alone. Hence, in proceedings to prosecute such an act, the court will look only to the question of power; and, if there was jurisdiction to grant the order, it will impose punishment upon those who willfully disobey it, for the purpose of vindicating its own power and maintaining its own dignity, and leave any error as to private rights to be redressed in the orderly manner provided for by the rules of practice. And obviously *984no other rule could prevail, and maintain the usefulness of the courts. It would he intolerable if any suitor could question and disregard the orders and decrees of the courts whenever he considered they were erroneous. As well might the sheriff, who is its executive officer, refuse to execute them. Under such a rule, the administration of the law would fail, and government would break down in one of its vital parts. The distinction between a civil and criminal contempt is plainly stated in the Code, in sections 8 to 14, inclusive, and has recently been pointed out by the court of appeals in People v. Court of Oyer and Terminer of New York, 101 N. Y. 245, 4 N. E. 259. While I have been unable to find that it has been referred to in any of the contempt cases, it underlies every decision; and the different questions that have been considered in the opinions in the reported cases result from .the difference in the character of the two offenses, and the different results that follow conviction, according as the contemptuous act has been prosecuted as a civil or criminal offense. Criminal contempts consist in a violation of the rights of the public, as represented in their judicial tribunals. An element of willfulness exists in them, and they are- punished in the interest of public justice, and not in the interest of individual litigants. Civil con-tempts cause an injury to a party to a civil action. The act need not necessarily be willful, and they are punished by a fine awarded to the individual litigant, as an indemnity for his loss, and payment of which is enforced by the compulsory process of the court exerted in his behalf; and conviction of such a contempt involves a judicial determination that the party’s rights or remedies have been defeated or impaired by the contemptuous act. Hence, it follows that as a party cannot be said to be injured, who has not shown himself to be -entitled to the equitable right or remedy which has been awarded to Mm, the court, in determining whether a person is guilty of a civil contempt, will look into the facts of the case, and see if they present an occasion for equitable relief. Such are the cases of Railroad Co. v. Ramsey, 45 N. Y. 637, and People v. Van Buren, 136 N. Y. 252, 32 N. E. 775. Those were civil contempts, and where, in the opinion, the term “jurisdiction” is used, it was not intended to refer to the power of the court to hear and determine the application for the injunction, but to the occasion for the exercise of that power, which is “equitable jurisdiction,” as that term is used and understood in equity jurisprudence. As already pointed out, two questions were properly before the court in the cases cited—First, the question of abstract power in the judge who granted the order; and, second, was the plaintiff entitled to the remedy awarded? Unless the latter question was answered affirmatively, the damages awarded could not be sustained; and all that was said about the jurisdiction of a court of equity to entertain such a suit as was then before the court meant nothing more than a consideration of the question whether a proper case for equitable relief existed, on the facts presented. The discussion had nothing to do with the power vested in the court to consider and decide the case. That such power existed independently of the facts of the case was repeatedly stated in the opinion. In People v. Van Buren, it is true that the prevailing opinion, in its opening, *985proceeds to consider the question whether the court had jurisdiction of the subject-matter of the action. That was an inaccurate expression. There was no question of that kind before the court. A plea that the supreme court had no jurisdiction of the subject-matter of an action would be a plea in bar, because, if that court has no jurisdiction, no court in the state has; and as to any question arising under the laws of the state, and between its citizens, such a claim would be absurd. The jurisdictional question, in that case, was not as to the subject-matter of the action, but whether the affidavits presented 'to the county judge brought the case within the provision of . the Code, so as to authorize that officer to grant the preliminary injunction. What the learned judge who wrote the prevailing opinion in that case intended to demonstrate, and what he did demonstrate, was that the facts set out in the affidavits presented a proper case for equitable cognizance, or, in other words, that there was “equitable jurisdiction,” as the term is generally understood; and that question was a pertinent one to the case, it being one of civil contempt. There is a clear distinction between the term “jurisdiction,” in its strict meaning, and as generally used in equity jurisprudence. In its strict meaning, as I have stated, it imports only the power residing in a court to hear and determine an action. But, as applied to the power of a court of equity, it is ordinarily used with more limited signification, and imports, not the power to hear and decide, but the cases or occasions when that power will be exercised. This distinction, while clearly pointed out in the best works on equity jurisprudence, has not always been observed in judicial opinions; and the expression “jurisdiction” has been used when the writers meant only to inquire whether the facts before the court presented a case for the proper exercise of the power of a court of equity. Mr. Pomeroy has very clearly pointed out the distinction here referred to. 1 Pom. Eq. Jur. §§ 129-131. The term “equity jurisdiction,” he says, “is used in contradistinction to ‘jurisdiction’ in general, and to ‘common-law jurisdiction’ in particular. * * * ‘Equity jurisdiction,’ in its ordinary acceptation, as distinguished from the general power to decide matters at all, and from the ‘common-law jurisdiction,’ is the power to hear certain kinds and classes of causes, according to the principles of the method and procedure adopted by the courts of chancery, and to decide them in accordance with the rules of equity jurisprudence. * * * If a court clothed with the equity jurisdiction, as thus described, should hear and decide, according to equitable methods, a case which did not fall within the scope of equitable jurisprudence, such judgment,, how ever erroneous it might be, and liable to reversal, would not necessarily be null and void. * * * Equity jurisdiction may exist over a case, although it is one in which the doctrine of equity jurisprudence forbid any relief to be given, or any right to be maintained. This conclusion is very plain, and even commonplace. Yet equity jurisdiction is constantly confounded with the right of plaintiff to maintain his suit, and obtain his equitable relief; thus, in fact, making the power to decide whether equitable relief should be granted depend upon the actual granting of such relief.” In the sense here referred to the expression *986is used in the cases cited, and, when the term is used in the opinions in connection with the facts, it has no reference to the power of the judge who granted the order, but to the question whether the facts showed a case for equitable cognizance. The discussions which appear in the opinions, in cases of civil contempt, in reference to the plaintiff’s cause of action, are not, therefore, in any wise inconsistent with, or opposed to, the rule applied in cases of criminal contempt; and in the latter class the only inquiry pertinent to the nature of the alleged contemptuous act is, was the order which has been disobeyed: or resisted made by a court or officer having power to make it? An examination of the decisions in this class of cases will show how closely the courts have adhered to this rule. And, when the facts have been referred to, it was only in the way of argument, and the final assertion has always been that questions arising upon the facts were not to be considered in the contempt proceedings. Thus, in the Sturtevant Case, after considering the complaint,,and the nature of the act enjoined, and the point raised that, it being a legislative one, the power did not exist in the courts to restrain it, Judge Joünson says:

“Whatever may be determined as to the character of this act, it is, I apprehend, plain that the question is judicial. The court which is called upon to determine this question is called upon to perform a legitimate judicial function. It is exercising jurisdiction when it makes its decision, and its order, though it may be erroneous, cannot be regarded as void.”

To the same effect are the remarks of Judge Finch in the Dwyer Case, where a similar question was raised. He says:

“Whether the act sought to be enjoined was or was not of a legislative character, was a judicial question, to be disposed of by the court acting upon the facts. If the court erred in its conclusion the remedy was by appeal, and not by disobeying its mandate.”

We are not, therefore, permitted, upon this appeal, to review the decision of Justice Barnard in granting the preliminary injunction. His decision involved the determination of every question necessary to support the order; and, in making it, he was exercising the jurisdiction conferred upon him by the constitution and laws of the state. His order was a valid exercise of judicial power, and, while the question whether such an action as was brought against the appellants could be maintained is open to grave doubt, that question is not now before the court, and cannot be determined. Disobedience or resistance to the order was a criminal contempt.

The point that the act which it was sought to restrain was one which would be final and complete before the trial of the action does not affect the jurisdictional question. Interlocutory writs of injunction were granted by the court of chancery because of the necessity of the case, and there could be no more proper occasion for the interference of the restraining power of the court than one where the injury would be complete before the plaintiff could bring his suit to trial. Mandatory injunctions, which require of a party the performance of some act, always, to some extent, anticipate the judgment of the court. It may ultimately be determined that such an order was erroneous, but it is no less within the power of the court *987to grant it. It rests in the discretion of the court, and never can be granted, under the Code of Practice in this state, unless an action is pending; and ample provision is made to indemnify the defendants against loss, in case it is finally determined that the plaintiff was not entitled to it. Numerous instances might be cited where the final judgment could not operate upon the act sought to be restrained. The cases instanced by Justice Cullen, of a threatened interference by a landlord with a tenant whose term would expire within 20 days, or of a contract to perform some act immediately, are fair illustrations. The threatened interference with private-property, which was the case of Cercle Francais de L’Harmonie v. French, 44 Hun, 123, and Bronk v. Riley, 50 Hun, 489, 3 N. Y. Supp. 446, is a further illustration of this power. And while, in both of the cases cited, the preliminary injunction was vacated, the power of the court to grant it in the first instance was conceded. Injunctions which, in effect, anticipate the judgment, or give some of the relief which it is sought to obtain by the decree of the court, should be granted with caution, and only when the necessity is great. Applications therefor call for great care upon the court to which they are made. But not only the power to grant them is undoubted, but the remedial and restraining power of a court of equity would be greatly impaired if such was not the rule. The conclusions of the special term upon the facts have ample support in the evidence, and the orders appealed from are affirmed, with costs. All concur.