U.S. ex rel. McIntosh v. Price , 1 Alaska 204 ( 1901 )

WICKFRSHAM, District Judge.

If the defendants are guilty of contempt, it is under the fifth subdivision of section 609, p. 271, of Carter’s Code (Act June 6, 1900, c. 786, 31 Stat. 429), for the alleged “disobedience of any lawful judgment, order, or process of court.” From the admitted facts in this case it appears that, after the court made its order and injunction of November 28, 1900, and also its order of August 7, 1901, the defendants in this proceeding, Price and Tremper, went upon the property in question, and worked the same, and extracted gold therefrom, and forcibly ousted and drove McIntosh and his associates therefrom, and took forcible possession thereof.

It is the duty of every good citizen to obey the law, and •to obey the lawful judgments, orders, and processes of the court. It is a contempt of the court not to do so, and the statute has fixed a punishment as for a crime upon the conviction for such contempt. It was the duty of these defendants to obey any lawful orders of the court made in this case, and for any willful disobedience thereto they may be punished. But it is equally the duty of the court to confine itself within its jurisdiction.

The order made by Judge Noyes on November 28th, enjoining all of the defendants in the original action, No. 242, was an injunction in plain, unmistakable terms. That injunction continued in force until August 7, 1901, when the order was m'ade permitting the defendant McIntosh and his associates to go into possession of the property upon giving a $10,000 bond. Whatever may be said of this order of August 7th, its effect was to vacate and dissolve the injunction granted at the suit of the plaintiffs on November 28th, and when the defendant "McIntosh and his associates had given their bond for $10,000, and had entered into possession of the “California Fraction,” the injunction theretofore made against them was dissolved. The order of August 7th contained no injunction or restraining clause whatever against Price and Tremper. It only provided that, upon giving the bond in the sum of $10,000, McIntosh and his associates • “should be allowed and permitted, without interference by the plaintiffs, their agents, successors, or em-ployés, to mine and operate” the “California Fraction.” While the language is somewhat involved and ambiguous, a careful consideration leads persuasively to the conclusion that its legal and only effect was to dissolve the injunction of November 28th, and leave the parties in exactly the same situation in which they were at the time it was issued. When Price and Tremper went upon the claim thereafter, and mined thereon, they violated no order or process of this court forbidding them to do so. It may be possible that they were guilty of a trespass and a wrong, but it was not a violation of any lawful judgment, order, or process of this court, and their act in doing so was no more a contempt of this court than would have been a trespass of any third party. True, the matter was still in litigation between Price and Tremper as plaintiffs and McIntosh and his associates as defendants, but there was no order of court or injunction restraining either of them from going upon the premises in dispute.

For these reasons this court is without jurisdiction to punish the defendants, or either of them, for contempt in this proceeding, and the motion to vacate and set aside the order upon which this proceeding is based, and to quash and dismiss all the proceedings in relation thereto, will be allowed, and the proceedings will be dismissed, at the cost of the petitioners.