Brougham v. Oceanic Steam Navigation Co., 205 F. 857 (2d Cir. 1913)

NOYES, Circuit Judge

(after stating the facts as above). In view of the decision of the Supreme Court in Gompers v. Buck Stove, etc., Co., 221 U. S. 418, 31 Sup. Ct. 492, 55 L. Ed. 797, 34 L. R. A. (N. S.) 874, and of this court in Matter of Kahn (C. C. A.) 204 Fed. 581, decided April 14, 1913, it may be doubted whether this case does not present a variance between the procedure adopted — apparently civil in its nature — and the penalty imposed — apparently partly punitive. But the plaintiff in error raises no such question in his assignment of errors and states in his brief that “no fault is found with the regularity of the proceedings to punish the plaintiff in error.” Moreover the record may support at least a part of the judgment and the error, if it exist, is not one which we are bound to notice without assignment. In the circumstances, we have concluded to refrain from taking up the .question. We think it altogether preferable to defer the consideration of the application of the Gompers decision to orders in the form shown here to an occasion when the question is duly raised and fully presented.

The fundamental question raised by the parties is one of jurisdiction. Did the District Court have power to make the order which the plaintiff in error disobeyed?

[1J It is sometimes said that every court has jurisdiction to determine its own jurisdiction. This is partly true and partly untrue. A court must as an incident to its general power to administer justice have authority to consider its own right to hear a cause. But the mere decision by a court that it has such right when it does not exist does not. give it authority. A court by moving in a cause assumes authority hut the assumption does not confer it. All of which refinement, however. advances us little in determining the substantial jurisdictional question here.

The jurisdiction with which we are concerned is the power to hear and determine a cause. It is not limited to making correct decisions but includes power to decide wrong as well as right. As applied to a particular controversy it is the power to hear and determine the subject-matter of that controversy. And by this is meant the power to hear and determine causes of the class to which the particular controversy belongs. It is the power to act upon the general question in its relation to the facts presented; to adjudge whether such facts call for the exercise of the abstract power. As said by the Circuit' Court of Appeals for the Eighth Circuit in Foltz v. St. Louis, etc., R. Co., 60 Fed. 316, 8 C. C. A. 635:

exercise of that power. It is not confined to eases in which the particular facts constitute a good cause of action, but it includes every issue within the scope of the general power vested in the court, by the law of its organization, to deal with the abstract question.”

[2] The jurisdiction of a court depends upon its right to decide a case and never upon the merits of its decision. The distinction between want of jurisdiction and error is clear. When a court makes an order in a cause over which it has no jurisdiction, it is a nullity. No one is bound to obey it or is liable for disobeying it. Similarly if a court have jurisdiction of' a cause and yet make an order in it beyond its power, the order is void. In the one case there is action without any authority; in the other, action in excess of authority. In both cases the order is a nullity, and affords no foundation for contempt proceedings. Ex parte Fisk, 113 U. S. 713, 5 Sup. Ct. 724, 28 L. Ed. 1117; In re Sawyer, 124 U. S. 200, 8 Sup. Ct. 482, 31 L. Ed. 402. But if a court have jurisdiction to make an order it must be obeyed however wrong it may be. “The principle is of universal force, that the order or judgment of a court having jurisdiction is to be obeyed, no matter' how clearly it may be erroneous.” People v. Sturtevant, 9 N. Y. 263, 266, 59 Am. Dec. 536. Errors must be corrected by appeal and not by disobedience. A person proceeded against for disobeying an injunction can never set up as a defense that the court erred in issuing it. He must go further and make out that in the law there was no injunction because the court had no right to adjudicate. These principles have been laid down over and over again and were stated in general terms by the Supreme Court in the early case of Elliott v. Peirsol, 1 Pet. 328, 340 (7 L. Ed. 164):

[3] Applying these principles in the present case, the inquiry is whether the District- Court had jurisdiction of the proceedings in which the injunction was issued. Concededly it had jurisdiction of the parties.2 Obviously the subject-matter came within the admiralty and maritime jurisdiction. Clearly the statutes and the rules of the Supreme Court gave the District Court general power over proceedings for the limitation of the liability of ship owners. There being no express limitation it would seem, even if there were no guiding authority, that a petition of a foreign ship owner with respect to a foreign ship came within the class of causes over which the court had jurisdiction. The question was whether the facts presented called for

the exercise of the abstract power — whether the statute could be so interpreted as to afford relief. But the authorities make the matter clearer still. The Supreme Court had held in the case of Da Bourgogne and The Scotland, already referred to, that foreign ship owners are entitled to limit their liability with respect to foreign ships when incurred in certain circumstances and the question presented by the petition in this case was simply whether the principle of those decisions should be extended to a liability incurred under certain other circumstances. This question was one peculiarly within the primary jurisdiction of the District Court and of no other court. When the petition presenting the question came into that court it had the right under the rules of the Supreme Court to enjoin the prosecution — the beginning as well as the maintenance — of suits against the petitioner. Such injunction called for obedience. The necessity for obeying it did not depend upon what decision the court should subsequently make in granting or denying the relief of limitation. Its jurisdiction was not confined to successful proceedings. The theory that in case it should not find the petitioner entitled to relief, all prior proceedings would be nullities is without foundation.3

The injunction having been issued by the District Court within its jurisdiction and the plaintiff in error having disobeyed it, he was, in our opinion, properly adjudged in contempt. We find nothing in the contentions made in his behalf not already examined to excuse him. We are satisfied that he acted with sufficient knowledge; that the modification of the injunction by this court did not work as a pardon, and that no constitutional right of his client justified liis disobedience.

The order of the District Court is affirmed with costs.