WAGNER V. DRAKE.
849
WAGNER
V.
DRAKE and othel'S. August, 1887.)
(Dia"brict Oourt, S. D. IO'IJ)a.
1.
JlEDERAL COURTS-RESTRAINING PROCEEDINGS IN STATE COURTS- REMOVAL CASES.
Section 720 of the United States Revised Statutes, prohibiting a United States court from granting an injunction to stay proceedings in a state court, does nO.t apply to proceedings in a state court in a case that has been legally: remov.ed from the state court into the United States court, but in such a case the writ will not be issued if the jurisdiction of the United States court of the case removed is .doubtful. ' A preliminary injunction will not be granted by a United States court to prevent Ii. state court from enforcing its decree restraining plaintiff from sell· Ing wine and beer,and abating his saloon as a nuisance, under the state law, after the case has been removed to the United States court; as in such a case the injury to plaintiff would, not be irreparable, but one capable. of being fully compensated by damages recoverable in an action at law, in the event of the removed case being decided in his favor. . NUISANCIll-IRREPARABLE INJURY.
2.
This is a. petition for an injunction to restrain the defendants from the prosecution of certain proceedings in a civil suit originally commenced in the district court of Wapello county, Iowa, but since removed into this court, where said suit is now pending. The petition alleges subst.antially that the original suit was instituted in the state court under the recent prohibition law, for the purpose of restraining the plaintiff'by injunction from the use of' his property for the sale of wine and beer; that ·theproperty in question was erected and fitted up with proper fixtures and furniture before the enactment of the prohibition law, for the purpose of carrying on the sale of wine and beer, which was then a lawful businessj that said law provides for the seizure and destruction of the same without compensation; that said suit was duly and regularly transferred to this court, and that the record of the state court has been filed in this courtj that, notwithstanding said removal, the state court, refusing to recognize the same, has proceeded to enter a decree against the plaintiff, enjoining him from .the further use of the premises mentioned for the sale and keeping for sale of intoxicating liquors. The petition further states that said defendants, clerk, sherif!', and attorneys, as well assaid:.'Drake, who was the plaintiff in the original suit, are about to institute proceedings against the plaintiff to compel him to obey said injunction, and that unless restrained by this court they will cause the petitioner to be deprived of the use of his property, and will also have a. final decree granted by 8aid state court perpetually enjoining the said plaintiff from the further use of his said property for the purpose aforesitid,and ordering the sheriff of said county to take possession of said premises, and to remove all furniture and fixtures therefrom, and to sell the same, and close said premises for one year from and after the rendition of said decree; and further ordering that the said fixtures and furni ture lound therein shall be sold. to pay the cost of the proceeding and attorney's fees, and making the same a lien upon the said .property. The v .3b. no. 14-54
'850
FEDERA.L
REPORTJjJR.
petition, therefore, 'prays that the court grant an injunction restraining said defendants from proceeding furtherinany manner whatever in said state court in said cause; and that they be restrained from instituting any contempt proceedings against said. plaintiff for disobedience to said injunction from the state court. J. J. Smith and Ander86n, Davis &:-Hagerrnan, for petitioner. D. H. Emery, for defendants. LoVE, J. In the case of S'IJM$,v. Noble, p08t, 855, (decided at the present term,) this court held that no power exists in any court of equity to interfere by injunction with the prosecution and punishment of crimes and offenses in the courts of common law... We are in the present case to consider. the relations of the federal to the state courts with: respect to the power of the former to restrain proceedings in civil causes in the latter by. the process of injun()fiou. . '. . ., tt has always been the theory of the English and American chancery that the court does not, by injunction', interfere with the' common-law courts, or their judges, but that its restraining power is exercised upon · the suitor; who is within the jurisdiction of the court of equity. This theory has not always accomplished its purpose. It has ,not served at , all times to avert ·strifeand ,collision between the two judicial systems. It is well known that a flagrant quarrel raged in the reign of James I. 'between the Lord Chancellor ELLESMERE and Chief JristiceCoKE, growiItg out of the issuing of injunctions by the chancellor to, restrain certain : suitors from proceeding with thElir· C8l1ses in the court· ofking's bench. This controversy grew to such violence that it was carried before the' king · in council, where it settled::in favor of the chancellor's jurisdiction. It is obvious that Where the two courts sit under the same ,government, · with a common 8uperiortribunal exercising power by appeal or other, wise to settle their controversies, there is little danger of forcible collision between them.' Such' is the casein England, where the nouse oflords ,is the supreme court of appealover.alL The same is trtJeofthe judicial systems of the various states of.theUnion. But it is otherwise with ra:spect to the relations between the federal and state courts;. Theyexer"-<lise jqdicial power generally: concurrent. within the same territory, over :the same suitors and subject-matter, but under twodistinot and separate 'governments. In general, there is 110 appeal from the one to;the other. '. Except in a few special cases in'which the supreme court of the United ',States may review the final judgment of the state courts, the two judi;,cial systems are wholly independent of each other. It is ,manifest 'that ·,in such 'a state of things the danger of violent collision, as well as diverse , i8.nd conflicting judgments, 1l1lust always be imminent. Where there is J·ino common arbiter there is apt to be a resort to force. It is evident that the framers of the judicial act of 1793 clearly discerned this danger, and foresaw that the evils of conflicting jurisdiction would become most threatening from the claim of the courts of one jurisdiction to interfere by injunction with the pro.'3ecution of suits in the other jurisdiction. Hence they incorporated into that act a provision prohibiting, in express
WAGNER"'. DRAKE.
851
terrns;th'e granting of -injunctions to stay proceedings iIi any court of a state, and this prohibition has been embodied in the Revised Statutes of the United States in the following terms: shall not be granted by any court of the "Sec. 720. The writ of United States to stay in any court of a state, except in cases where sucb injunction may be authorized by any law relating to proceedings in bankruptoy. " This is a. sweeping pr()hibition. It extends' to all cases over which the state court first obtains jurisdiction, and lawfully and properly retains the jurisdiction thus first acquired. But it is settled by the decisions which I will presently cite that, where the federal court first obtains jurisdiction, the act of congress does not apply, and where the state court hl'l.viilgfirst obtained jurisdiction, the causets lawfully transferred to the federti.l court, the act has no application to injunctions issued from the federal court after the removal. ' 'It ha:s been argued that the prohibition of the statute applies only to injunctions aimed at the state court, but not to injunctions issued only to parties before the state court; but this distinction is clearly unsound, aIld it has been repeatedly denied by the supreme court of the United States; See Peck v. Jenneas,7 How. 620; Diggsv. Wolcott, 4 Oranch, 179; HaintB'v. Carpenter, 91 U.S. 254; Dial v. Reynolds, 96 U. S. 340. It has been decided, ''U'pon grounds that cannot be questioned, that the restriction in question is to be limited to actions begun in the state conrtsbef6re proceedings commenced in the federal court, and that it is not applicable where the jurisdiction of the federal courts has first attached. F'iJJk v.Union Pac.By. Co., 10 Blatchf.518. This was a case originally 'brought in the United States circuit court for the Southern district of New York. That court rightfully held that, its jurisdiction havingfitstattached, it would restrain the defendant corporation from taking: steps in a state court to procure its dissolution. But ,ve 'are at present concerned only with removal cases. Suppose a cause has been dilly and properly transferred under the act of congress from the state to the federal court, is it then competent for the federal court'to restrain the parties litigant before it from further proceedings in the state court? Does the 720th section apply in such a case, so as to inhibit abSolutely the issuing of any injunction in the federal court restraining the parties before it from proceeding in the state court with respect to: tMsubject-matter of the snit? When a cause is legally removed to the federal court, all jurisdiction in the state court is at an end. The very cause itself being transferred, no case any longer exists in the state court. The 'state court is then absolutely without authority over the parties and subject-matter of the litigation. Whatever the state court couldhl1\Te done before the re'inoval it is competent after removal for the federal court to do. An injunction in such case by the federal court, reStraining the parties before it from proceeding elsewhere, is no injuDction,withinthe spirit ltnd intent of the statute staying proceedings ina state court, because after removal there is no proceeding left in the state
852
FEI>E;R,Af,. REPORTER.
court, and no jurisdiction to be interfered with. If,after removal, a party could continue or renew his litigation in the state court, the whole purpose of the removal might be defeated. . The United States supreme court in Kern Huidekoper, 103 U. S. 485, decided that, "after the filing in the circuit court in a removal case of the record ,of the proceedings in the state court, the latter lost all juris" diction over the case; and, being without jurisdiction, its subsequent proceedings and judgment are not, as some of the state courts have ruled, limply erroneous, but absolutely void;" citing Gordon v. Longest, 16 Pet. 97; Insurance Co. v. Dunn, 19 Wall. 214; Virginia v. Rives, 100 U. S. 313. In Insurance Co. v. Dwnn the court says that the of congress, probond being filed, viding in such cases that, upon the proper petition the state.court "shall proceed no further in the suit, " the further proceeding in the state court was a clear act of usurpeq. jurisdiction. "The illegality was gross," etc. In Virginia, v. Rives the court says that "all pr.oceedings in the state courts subsequent to the removal are coram non judice, and absolutely void." Again, in Kern v. Huidekoper the court says that, "wpe,n the prerequi. sites for removal have been performed, the paramount law of the land says that the case shall be removed, and the case and the res both go to the federal court. The fact that the state court had possession 01 the subject-matter of the controversy cannot prevent the removal; and, when the removal is accomplished, the state court is left without any case, au*. * *" thority, or process by which it can retain possession ofthlJ) Again: "When a bond for the delivery of the property has been taken, the bond, as the representative of the property, is transferred with the suit." 103 U. S. 485. But the two cases in which it is directly decided that it is competent for the United States circuit court ·to issue injunctions, after removal, notwithstanding the prohibition in question against staying proceedings in the state courts, are French v. Hay, 22 Wall. 250, and Dietzsch v. Huidekoper, 103 U. S. 494. The latter of these cases was an action of replevin in the statE;l court. After its removal to the proper United States circuit courts by the plaintiff, the state pourt proceeded to render ajudgment against him for a return of the property. An action thenmpon having been brought against him and his sureties on' the replevin bond, they filed their bill in the United States circuit court, praying that the plaintiff in the action in the state court, on the replevin bond should be enjoined from further prosecuting it. The supreme court of thepnited States decided that the circuit court properly granted the prayer of the bill by which the injunction was made absolute and perpetual. The court.said the statute forbidding injunctions to stay proceedings in the state courts was not applicable to cases thus removf'd from the state court. The court cites and approves l!rench v. Hay, supra, in which the same proposition was established.
res.
WAGNER 'V. DRAKE.
853
The foregoing decisions leave no doubt whatever of the power of this court to grant injunctions in rases which have been regularly removed from the state court.s. But the power to grant injunctions, and the duty of the court to grant them,' are wholly different propositions. What is a preliminary injunction? It is an order or decree without regular evidence; indeed, without proof,-since affidavits are not in any proper sense legal proofs. Such evidence, given ex parte without cross-examination, is notoriously misleading and delusive. A preliminary injunc- , tion is in fact the result of an interlocutory decree in advaace of a regular hearing and plenary proofs. Hence a court always, in making orders, upon such irregular proofs,runs a great risk of falling into grave error. A preliminary injunction should never be granted except in cases where irreparable injury is threatened, and the court, in granting such a rem-, edy, should he certain that in attempting to'prevent irreparable injury to one party it shall not do irreparable injury to the adverse party. , See High, Inj. §§ 7-10, and the cases there cited. Ido not doubt that in those removal cases, where rights of property are the direct subject of litigation, if any party were proceeding under the, authority of the state court after the removal to sell, destroy, confiscate, or otherwise meddle with the property, so as to seriously impair its value, it would be the duty oBhe federal court to restrain and prevent such injurious acts; for otherwise the final decree of the court establishing the right of any claimant to the property would be useless and nugatory. The injury to be prevented would in such case be simply irreparable. Such was the view which this court took of the so-called Brewery Cascs when they were transferred from the state courts upon the authority of the decision of the circuit judge in State v. Walruff.l In these Brewery Cascs the properti.esinvol,ved were of very great value. No bond of indemnity was required of parties who sued out injunctions in the state courts, aiming at their abatement and virtual destruction as nuisances. ' The consequences to the owners of such properties would have been simply ruinous, and the injury irreparable. These were clear cases, therefore, calling for the equitable discretion of this court in the granting of preliminary injunctions. Unless the court wholly abandoned its jurisdiction of causes thua removed here, and remanded them to the state coprts, there seemed to be an imperaHve necessity for the granting of orders staying proceedings in the state courts, which threatened the utter destruction of the brewery property, the very subject of litigati.on. It was manifest that actions at law for damages by the owners of brewery properties injured to the extent of sums amounting to twenty, thirty, forty, and fifty thousand dollars would have proved wholly futile and nugatory, and therefore that the injury impending in such cases was irreparable; and it is only in cases of irreparable injury that the extraordinary remedy ofpreliminary injunctions ought to be applied. But I am not able to view in this light the so-called Sal()(Yll Oascs, to which the application now before me belongs. The damages in such 126 Fed. Rep. 178.
854
FEDERAt lUlPORTER.
cases are"Mt large; barely sufficient, indeed, in amount to bring them into this court. The buildings-iIi which the saloon business is carried, on are not like a great brewery which, with its machinery and appliances, cannot be converted to any use otber than that for which they were intended. The chief loss of the saloon owner if his business be closed by the action of the state court is the value of the fixtures and the furniture used in his trade. These Illay be fully compensated in damages in actions at .law, and it is perfectly'clear ,in point oflaw that, ,if these saloon caseS have been legally transferred to this court, and if the'supreme court of the United States shall So debide. then· every individual who, subsequent to the removal, proceeds against them in the state court, makes himself a trespasser; and that as such he may be made liahle for all damages ,that may accrue to the saloon owner. This principle is beyond questi()n. The supreme court of the United States has decided repeatedly that when a case is legally removed to the United States court all further proceedings in the state court are without jurisdiction, and therefore are not merely erroneous, but absolutely nuHand void; and it is equally well settled, as a universal principle of law, that the judgment of a court without· jurisdiction is no protection whatever to· anyone acting under it. lt is therefore clear that all persons, from theijudge upon the bench to the lowest ministerial officer, doing injury to another in· his person and property by virtue· of Ii judgment rendered in a state court after a legal removal ofthe cause to the United States court,would, as a trespasser and wrong-doer, be liable in damages to the injured party; for, if these causes be :removable at all, it niustbe upon the ground that the law as to them is tinconstitutionaialld void. If, on the other hand, the supreme court of the United States shall finally decide that these saloon cases have not been legallyremoved'{rom the state courts, then the owners of saloon, property are entitled to lio protection here, and it would be a usurpation of power by this oonrt to give them protection by injunctionsstaying the rightful jurisdiction of the state courts. '. There is another sufficient reason why this court should at present refuse the restraining orders prayed fat in this case. The,UnitedStates court should not, certainly,· if its own jurisdiction is do'llbtful, interfere by injunction to stay proceedings in the state courts upon mere ex parte proofs in advance of any regular trial or hearing. It is a most serious matter to arrest by injunction alloivil proceedings in the state courts in a large class of removal cases under the prohibitory law; and this court would not feeljtIstified in so doing unless its own jurisdibtion were quite c1ea,r. When the prohibition cases first came here from the state courts some time ago· we were governed by the decision of the circuit judge in the case of Statev. Walruff. That decision, unreversed, was as much the law Of this' court for the time, behlg as a judgmeot.of the supreme court of the United States would have been. Thejutisdiction of this court Waa not,thel'efore,' at that time" doubtful with' respect to causes which were within the principle of the Walruff Que. But since that time appeals have been taken to the supreme court of the United States
SUESS'll. NOBLE.
855
from the Northern district of Iowa, and it appears that the judges of that court were equally divided upon the question of jurisdiction. These were therefore ordered to be remanded to the state courts of Iowa. This was the result of the equal division of opinion in the supreme court. See Schmidt v. Cobb, 119 U. S. 286,7 Sup. Ct. Rep. 1373j O'Malley v. Farley, 119 U. S. 2l:l6, 7 Sup. Ct. Rep. 1373. Now, it is quite impossible, in view of this division of opinion in the supreme court, and its consequent action, to say that the jurisdiction of this court over the cases now in question is nota matter of the gravest doubt. The action of the supreme court has thrown the most serious doubt upon our jurisdiction in such cases, and I would not feel justified in practically arresting and setting aside the jurisdiction of the state courts while the jndicial power of this court in the matter is a subjeot of such uncertainty and doubt. The present application must therefore be denied.
SUESS
'11.
Justice of the Peace, and others.
((}lrouit,Oourt, S. D. 10tDa. Angust, 1887.) ,
power exists court of equity to interfere byinjnnctlonwith the punlslplu;nt of crimes and oJ:enses in the CQnf;ts'of Common
'CRIMINAL PRoSECUTION.
,
The original cause, of State V.811£88 was removed from the distnctcourt of Jefferson county, Iowa, to this court upon the petition of ilaid Suess, and the same is now pending here. ,The transfer Wllill made in purSuance of the decision of the circuit judge, BREWER, of ',State v. WalrtW. 26 Fed. Rep. 178. The purpose of that proceeding , was to, have the brewery owned and maintained by said Suess declared So nuisance, and as such perpetually enjoined and abated. A t;emporary , restraining order, which is still in full force, was issued from this court, .the pu'rpose of which, was to restrain certain persons, who WE/re carrying on 'civil proceedings in the state court. from prosecuting same to the injury and virtual destruction of the property pending.thedetermination of the question of the jurisdiction of this court oV\lr the subjectmatter of the said original suit. Lewis Suess now presents his petition to this: court· against the above-named defendants and others, alleging that. they are engaged in commencing and carrying on [many <;lrimin,al prosooutionsagaillst him before certain of the peaceufor each separate sale of beer at his brewery." and that they propose" to, place him on trial and find him guilty of selling intoxicating liquors, audto impose upon him heavy fines for said alleged offenses," etc. He also states, in a supplemental petitiQlil, that he was indicted 'at the Janllary term pf the district court of said county for the alleged crime of Cl\.using a nuisanceby the sale of beer at hisbrewerYi that he sa.id alleged offense, and that he has taken an appeal to the auvreme court of