BUTCHERS'BENEVOLENT ASSOCIATION v. Crescent City Live-Stock Landing and Slaughter-House Co.

77 U.S. 273 (1869) 10 Wall. 273

THE BUTCHERS' BENEVOLENT ASSOCIATION OF NEW ORLEANS
v.
THE CRESCENT CITY LIVE-STOCK LANDING AND SLAUGHTER-HOUSE COMPANY.
SAME DEFENDANTS
v.
SAME PLAINTIFFS.
HOTAIR IMBAU ET AL.
v.
THE CRESCENT CITY LIVE-STOCK LANDING AND SLAUGHTER-HOUSE COMPANY.
THE LIVE-STOCK DEALERS' AND BUTCHERS' ASSOCIATION OF NEW ORLEANS
v.
THE CRESCENT CITY LIVE-STOCK LANDING AND SLAUGHTER-HOUSE COMPANY.
PAUL ESTEBEN ET AL.
v.
THE STATE OF LOUISIANA, EX RELATIONE.

Supreme Court of United States.

Messrs. J.A. Campbell, P. Phillips, and J.Q.A. Fellows, in support of the motion.

Messrs. Black, Durant, Carpenter, and Allen, contra.

Mr. Justice CLIFFORD stated the case in detail, and delivered the opinion of the court.

All persons and corporations, except the Crescent City Live-stock Landing and Slaughter-house Company, are prohibited, by the act passed by the legislature of the State of Louisiana, to land, keep, or slaughter any cattle, beeves, calves, sheep, swine, or other animals, or to have, keep, or establish any stock-landings, yards, pens, slaughter-houses, or abattoirs at any point or place within the city of New Orleans or the parishes of Orleans, Jefferson, and St. Bernard, or at any place on the east bank of the river within the corporate limits of the city, or at any point on the west bank of the same above the railroad depot therein mentioned and designated.

Said act was passed on the eighth day of March, 1869, and is entitled An act to protect the health of the city of New Orleans, to locate the stock-landings and slaughter-houses, and to incorporate "the Crescent City Live-stock Landing and Slaughter-house Company." Though approved on the day mentioned, still the act did not go into operation till the first day of June following, but it appearing that the company created and organized under the act intended to enforce the prohibition, the plaintiffs in the suit first mentioned, on the twenty-sixth of May of that year, filed a petition or bill of complaint in the Sixth District Court of New Orleans against that company, alleging that for more than thirty years past there had existed in the parish of Orleans and the adjacent parishes the lawful trade of butchering domestic animals to supply with meat the markets of the city and the adjacent parishes, and that the regular pursuit of that trade involved the necessity of collecting, feeding, and sheltering such animals before they were slaughtered, and of preparing and preserving their meat for use or sale for food, and their hides, tallow, and other valuable parts of the animals for the market; that a thousand persons throughout that period have been engaged in that trade without interruption and unmolested prior to the organization of that company by any ordinance, regulation, or enactment from any public authority; that they, the petitioners, are duly incorporated under a law of the State, and that for more than two years they have been and are in the lawful exercise of that trade and employment, and that they have constructed and erected for that purpose, and now hold within those parishes, places for landing cattle and for sheltering the same, and slaughter-houses for butchering the animals for market, and have secured stalls and such other privileges in the market-places as are necessary and convenient to the prosecution of the business; that the respondents, though they must well know that the act is in violation of the Constitution of the United States, openly declare that it is their intention to execute its provisions and to compel the complainants to abandon the objects of their incorporation, and to destroy the value of their investments, and render it necessary for them to relinquish their lawful pursuit and the prosecution of their legitimate business.

Wherefore they pray that the respondents may be enjoined from any such interference with the petitioners, and from interfering, directly or indirectly, by suit or otherwise, with their customers in purchasing, slaughtering, or butchering animals of any kind used for meat, during the pendency of the suit, and also for process, and that they, the complainants, may have judgment against the respondents in damages for the sum of ten thousand dollars.

On the same day the respondents in that suit instituted in the Fifth District Court of New Orleans a counter suit against the complainants in the suit commenced against them in the Sixth District Court of the same municipality. They allege in their petition that "the sole and exclusive privilege of conducting and carrying on the live-stock landing and slaughter-house business in that city and its environs is vested in their company, as is fully set forth in the act of their incorporation; that the corporation named in their petition, as respondents, are about to land, shelter, and protect cattle, &c., intended for slaughter, and to conduct and carry on the live-stock landing and slaughter-house business within the limits of the city as prohibited by law and in violation of their exclusive rights and privileges. Wherefore they pray that the respondents, the complainants in the suit pending in the Sixth District Court, may be enjoined and prohibited from landing, stabling, and sheltering cattle, &c., and other animals destined for sale and slaughter in that city, and from conducting and carrying on the live-stock landing and slaughter-house business within the limits of the parishes described in their charter, and from molesting and interfering with the petitioners in the exercise and enjoyment of their exclusive rights and privileges; and they also claim damages in the sum of four thousand dollars, and for general relief."

Judgment in the first suit was rendered for the petitioners, and it was ordered that the injunction previously issued in the case against the respondents should be made perpetual. Pursuant to the suggestion of the respondents in that case, that there was error to their prejudice in the final judgment of the Sixth District Court, it was ordered "that a suspensive appeal be granted herein to the defendants, returnable to the Supreme Court of the State."

Hearing was also had in the suit commenced in the Fifth District Court by the Crescent City Live-stock Landing and Slaughter-house Company against The Butchers' Benevolent Association of New Orleans, and it was ordered, adjudged, and decreed in that case that there be judgment in favor of the petitioners, and that the corporation respondents, their president and members, be forever enjoined and prohibited, as prayed in the petition.

Exceptions having been filed to certain rulings of the court, it was also ordered, on motion of the respondents, that they, the respondents, be allowed a suspensive appeal to the Supreme Court of the State, as in the preceding case.

Separate suits were also commenced in the Seventh District Court of the city against the Crescent City Live-stock Landing and Slaughter-house Company by Hotair Imbau et al., and by the Live-stock Dealers' and Butchers' Association of New Orleans, as appears by the transcripts filed here in those cases. Injunctions were prayed and granted against the respondents in both of those cases, and they, the respondents, were allowed suspensive appeals to the Supreme Court of the State from the respective judgments.

Suit was also commenced in behalf of the State by the Attorney-General against Paul Esteben et al., in which it is alleged that they have, without authority of law, formed themselves into a corporation by the name of the Live-stock Dealers' and Butchers' Association of New Orleans; that they, as such corporation, are about to lease or purchase a certain tract of land partly in the city and partly in the parish of St. Bernard, and that they are about to commence the erection of buildings and structures thereon for the purpose of collecting, landing, and sheltering beef-cattle designed for food, to be sold in the parishes of Orleans, Jefferson, and St. Bernard, contrary to the act of the General Assembly of the State. Wherefore the petitioner prays that a writ of injunction may issue restraining and enjoining the respondents from using that tract of land for the purpose set forth in the petition and from slaughtering any beef-cattle or any other animals intended to be sold for food in those parishes. Final judgment in the case was rendered in favor of the State, and it was also ordered, adjudged, and decreed that the respondents be forever enjoined and restrained, as prayed by the petition. Attempt was made by the respondents to secure a rehearing, but the motion was denied, and on their petition it was ordered that they be allowed a suspensive appeal to the Supreme Court of the State, as in the preceding cases.

These several appeals, together with one other which it is unnecessary to describe, were duly entered in the Supreme Court of the State, and were, by the written agreement of the parties, submitted for decision at the same time. They were submitted on the twenty-eighth of January, 1870, and the opinion of the appellate court was delivered on the eleventh of April following. Pursuant to that opinion the judgment of the Sixth District Court, as rendered in the first case, was reversed, and the directions of the Supreme Court of the State were that the injunction granted by the subordinate court should be dissolved, and that the demand of the petitioners should be rejected with costs in both courts. They also rendered a judgment of reversal in the same form and with the same directions in the third and fourth cases, being the two appeals from the judgments rendered in the Seventh District Court. Judgments of affirmance were also rendered on the same day in the second and fifth cases, in the order herein adopted, with costs of appeal.

Where the decision in the court below sustained the pretensions of the Crescent City Live-stock Landing and Slaughter-house Company the judgment of the subordinate court was affirmed, but the judgment of the subordinate court was reversed in each case where the decision of the subordinate court was adverse to those pretensions, and the injunctions in those cases were dissolved.

Petitions for rehearing were filed by the losing parties, on the twenty-sixth of April, 1870, and on the ninth of May following an entry was made in each case, that the petition for rehearing was refused. Writs of error to the State court were subsequently prayed by the same parties, and on the thirteenth of May last the writs of error were allowed by the Associate Justice of this court allotted to that circuit, and they were duly filed on the sixteenth day of the same month, as appears of record.

Filed, as the writs of error were, within ten days from the date of the entry refusing the petition for rehearing, it is claimed by the plaintiffs that the several writs of error operate as a supersedeas and stay execution, under the twenty-third section of the Judiciary Act. Doubts were at one time entertained upon that subject, but since the decision in the case of Brockett v. Brockett,^[*] the question must be considered as settled, in accordance with the views of the plaintiffs.^[†]

Sufficient bonds were given in each of these cases, which in necessary in every case, in order that the appeal or writ of error may operate as a supersedeas and stay execution on judgments removed into this court for re-examination. What is necessary is that the bond shall be sufficient, and when it is desired that the appeal or writ of error shall operate as a supersedeas the bond must be given within ten days from the date of the decree or judgment.^[‡]

Suppose the writs of error were seasonably sued out and that they operate in each case as a supersedeas and stay execution, as provided in the twenty-third section of the Judiciary Act, still the court is of the opinion that the several motions under consideration must be denied upon other grounds, and for reasons which are entirely satisfactory.

Controversies determined in a State court which are subject to re-examination in this court, are such, and such only as involve some one or more of the questions enumerated and described in the twenty-fifth section of the Judiciary Act, and which have passed to final judgment or decree in the highest court of law or equity of a State in which a decision in the suit could be had, as provided by the constitution and laws of the State. Appeals were taken in the cases before the court from the respective District Courts, where they were commenced, to the Supreme Court of that State before the writs of error granted by this court were sued out, and the decrees or judgments brought here for re-examination are the final decrees or judgments of the Supreme Court of the State in those cases.

Writs of error issued under the twenty-fifth section of the Judiciary Act have the same effect as if the judgments or decrees were rendered in a Circuit Court, and they operate as a supersedeas and stay execution only where the writ of error is served by a copy thereof being lodged for the adverse party in the clerk's office where the record remains, within ten days, Sundays exclusive, from the date of the judgment or decree.^[*]

Such a writ of error is in the nature of a commission by which the judges of one court are authorized to examine a record upon which a judgment or decree was given in another court, and on such examination to reverse or affirm that judgment or decree. When regular in form, and duly served, the writ of error operates upon the record of the court to which it is addressed in the case described in the writ, and it has the effect to remove that record into the court granting the writ of error and to submit it to re-examination, and the twenty-third section of the Judiciary Act provides to the effect that where all the conditions prescribed in that section concur in the case the jurisdiction of the court where the record remained when the writ of error was sued out and served shall be suspended until the cause is determined by or remanded from the appellate tribunal.^[*]

Exceptional cases arise where the judgment or decree given on appeal in the highest court of a State is required by the law of the State to be returned to the subordinate court for execution, and in such cases it is held that the writ of error from this court may operate as a supersedeas, if granted and served at any time within ten days from the return entry of the proceedings in the court from which the record was removed, but in all other cases the writ of error must be issued and served within ten days from the date of the judgment or decree, in order that it may operate as a supersedeas and stay execution.^[†]

Appeals and writs of error do not become a supersedeas and stay execution in the court where the judgment or decree remains by virtue of any process issued by this court merely as such, but they are constituted such by the act of Congress when the conditions prescribed in the twenty-third section of the Judiciary Act are fulfilled. Where those conditions are complied with the act of Congress operates to suspend the jurisdiction of the court to which the writ of error is addressed, and stay execution in the case pending the writ of error and until the case is determined or remanded.^[‡]

Power to issue a supersedeas to a judgment rendered in a subordinate court does not exist in this court where the writ of error is not sued out and served within ten days from the date of the judgment, except where the aggrieved party is obliged to sue out a second writ of error in consequence of the neglect of the clerk below to send up the record in season, or where the granting of such a writ is necessary to the exercise of the appellate jurisdiction of the court, as where the subordinate court improperly rejected the sureties to the bond because they were not residents of the district.^[*]

Undoubtedly the writs of error in these cases were seasonably sued out and served, and it is equally clear that the parties in whose favor they were granted complied in each case with all the conditions prescribed in the act of Congress as necessary to give the writ effect as a supersedeas and stay execution, as contended by the plaintiffs in the pending motions. Such proceedings operate as a stay of execution, and it is well settled that if the subordinate court, under such circumstances, proceeds to issue final process, it is competent for this court to issue a supersedeas, as an exercise of appellate power, to correct the error.^[†]

Doubt upon that subject cannot be entertained where it appears that the court to which the writ of error was directed has made the return of the same to the proper term of the court, pursuant to the commands of the writ, and the same has been duly entered on the calendar. Objection is made, however, that the motions before the court are premature, as the return day of the writ of error is the first day of the next term, but we are of the opinion that the court possesses the power to grant a remedy in such a case even before the return day of the writ of error, where it appears that the court to which it was addressed has made return to the same, and that the plaintiff has filed in the clerk's office a copy of the record duly certified as required by law.

Except in a case of urgent necessity the court, in the exercise of a proper discretion, might well decline to exercise the power before the return day of the writ, but the better opinion, we think, is that the jurisdiction for such a purpose attaches from the time the party in whose favor the writ of error is granted has complied with all the conditions prescribed in the act of Congress to make the writ of error operate as a supersedeas and stay of execution.^[*]

Grant all this, still the court is of the opinion that the motions cannot be granted, as it is conceded that nothing has been done by the Supreme Court of the State since the writs of error were served and became a supersedeas, inconsistent with the prohibition contained in the act of Congress which gives the writs of error that effect. Argument upon that topic is unnecessary as the affidavits filed in support of the motions affirm nothing of the kind, nor do the plaintiffs set up any such theory.

Incorporated as the respondents in the motions are by the General Assembly of the State, they claim the sole and exclusive privilege of conducting and carrying on the live-stock landing and slaughter-house business within the limits described and the privileges granted in the act giving them corporate powers. On the other hand, the plaintiffs contend that the act granting them such exclusive privileges is in violation of the Constitution of the United States, and void, and that they, the plaintiffs, have equal right to establish a live-stock landing, and to erect slaughter-houses, and to conduct and carry on that business as if no such special privileges had been granted to the respondents.

Injunctions were obtained by each party against the other in the courts where the suits were commenced, but appeal was taken, in each case, by the losing party, to the Supreme Court of the State, where the injunctions previously granted against the respondents in the motions were dissolved and those previously granted against the plaintiffs were made perpetual. Judgments of reversal on the one side and of affirmance on the other were accordingly rendered by the Supreme Court of the State in the respective causes, as before explained, and it is to those judgments and to that court that the writs of error in question were directed and addressed. Those judgments remained in the Supreme Court of the State when the respective writs of error were sued out and became a supersedeas and stay of execution, and the records show that that court has neither reversed nor modified the judgments, nor any one of them, nor has that court done anything to vary or impair the rights of the parties or to carry the judgments into effect.

Subsequent to the commencement of these several suits, but before the judgments were rendered in the Supreme Court, the General Assembly of the State created another court in that city, called the Eighth District Court, and conferred upon that tribunal the exclusive original jurisdiction of injunction causes, and also made provision in the same act for the removal of such causes from other courts to that jurisdiction.

Supersedeas writs of error having been sued out by the plaintiffs to the respective judgments rendered in the Supreme Court, they claimed that the injunctions against them granted by that court were inoperative, and their theory was and still is that the writs of error had the effect to dissolve or suspend the injunctions granted by the Supreme Court of the State and to restore and render operative the injunctions decreed in the subordinate courts.

Governed by these views, the plaintiffs denied that the respondents could claim to exercise any such exclusive privileges as those described in their charter, and proceeded to make the necessary preparations for carrying on the same business. Opposite views were entertained by the respondent corporation and by the State authorities, and especially by the attorney-general, and for the purpose of testing the question he moved in the Fifth District Court that the fifth case embraced in the motions, as here classified, should be removed into the Eighth District Court, and the motion was granted.

Application was then made by him to the latter court to enforce the judgment rendered on appeal in that case by the Supreme Court of the State, making perpetual the injunction originally granted by the court from which the cause was removed, but the court refused to grant the motion, because, as the court held, the writ of error sued out in the case operated as a supersedeas.

Attempt is not made to call in question the correctness of that decision, but the attorney-general on the same day obtained a rule in that court against all the respondents in that case, except one, to show cause, if any, why they should not be punished for contempt, as having violated the injunction granted in the case before the same was appealed to the Supreme Court of the State. Service was made under the rule and the respondents appeared, and were fully heard, but it appearing that the respondents had acted under the advice of counsel, the court refused to inflict any punishments. Directions, however, were given to the sheriff in the form of an order to enforce the preliminary injunction granted by the Fifth District Court.

Proceedings of an original character were also instituted by the present respondents in the same District Court, in which they prayed that the board of metropolitan police might be enjoined to prevent all persons, except the petitioners in that case, from conducting or carrying on the live-stock landing and slaughter-house business within their chartered limits. Accompanying that petition was an affidavit of merits, and upon that petition and affidavit an injunction was granted as prayed.

Three days later, to wit, on the sixth of June last, the attorney-general intervened for the State in the suit and adopted the petition and prayed that the injunction might be made perpetual. Various motions were made by parties opposed to the proceedings to dissolve or modify the injunction, but they were all overruled and denied by the court. No appeal was taken to the Supreme Court of the State, nor does it appear that any attempt was made by the respondents, in any form, to cause the proceedings to be re-examined in the court of last resort. They regarded it as unnecessary to seek any such revision of the proceedings, as they insist that the legal effect of the writ of error issued from this court to the Supreme Court of the State was to vacate the injunction granted by the latter court and to continue in force the suspensive features of the appeals allowed by the subordinate courts.

Beyond doubt, the appeal in the form granted by the subordinate court operated as a stay of execution, and suspended the jurisdiction of the court to proceed further in the cause until the same should be determined or remanded, but the Supreme Court rendered a final judgment in the case and granted a perpetual injunction.

Whatever conditions were annexed to the appeal in the subordinate court were abrogated by the final judgment of the appellate tribunal, as the appeal was then fully executed. Had no writ of error been granted by this court the plaintiffs, it is presumed, would admit the correctness of that rule, but they insist that the effect of the writ of error, if made a supersedeas, is that it suspends the judgment of the Supreme Court and leaves the judgment of the subordinate court in full operation during the pendency of the writ of error.

Independent of statutory regulations, the term supersedeas has little or no application in equity suits, as the rule is well settled in the English courts that an appeal in chancery does not stop the proceedings under the decree from which the appeal was taken without the special order of the subordinate court.^[*]

Proceedings are stayed in the courts of New York by appeal in a chancery suit to the extent that if the party desires to proceed, notwithstanding the appeal on the point from which the appeal was taken, he must make application to the chancellor for leave.^[†]

Different rules upon the subject prevail in different jurisdictions, but the act of Congress provides that appeals in the Federal courts shall be subject to the same rules, regulations, and restrictions as are prescribed in law in case of writs of error.^[*]

Appeals do not lie from a State court to this court in any case, as the act of Congress gives no such remedy. Rules and regulations prescribed by law of course control and furnish the rule of decision, but it seems to be well settled everywhere, in suits in equity, that an appeal from the decision of the court denying an application for an injunction does not operate as an injunction or stay of the proceedings pending the appeal. Neither does an appeal from an order dissolving an injunction suspend the operation of the order so as to entitle the appellant to stay the proceedings pending the appeal, as matter of right, either in a suit at law or in equity.^[†]

Separate examination of the several cases before the court as respects the effect of the writs of error upon the judgments removed into this court, may well be omitted, as the plaintiffs were the losing party in all the appeals from the courts of original jurisdiction to the Supreme Court. They prevailed in three of the suits in the District Courts, but they were defeated in the Supreme Court in all the cases.

Viewed in any light it is clear that a writ of error to a State court cannot have any greater effect than if the judgment or decree had been rendered or passed in a Circuit Court, and it is quite certain that neither an injunction nor a decree dissolving an injunction passed in a Circuit Court is reversed or nullified by an appeal or writ of error before the cause is heard in this court.

Judgments and decrees of the Circuit Court are brought here for re-examination, and so are the judgments and decrees of a State court, and the only effect of the supersedeas is to prevent all further proceedings in the subordinate court except such as are necessary to preserve the rights of the parties.

Reference is also made to the fifth section of the act of the second of March, 1793, as conferring power upon this court to enjoin the proceedings in the Eighth District Court, but the conclusive answer to that suggestion is that there is no appellate relation between a subordinate State court and the Supreme Court of the United States, and where no such relation is established by law the prohibition of that section — "nor shall a writ of injunction be granted to stay proceedings in any court of a State" — applies to the Supreme Court as well as to the Circuit Court.^[*]

Final judgments or decrees in any suit in the highest court of law or equity of a State, in which a decision in the suit could be had, may be removed here for re-examination if they involve some one or more of the questions specified in the section conferring the jurisdiction, and otherwise come within the rules which regulate that jurisdiction. Appeals lie, it is conceded, from the District Courts of that State to the Supreme Court, as fully appears also from the records in these suits, which shows to a demonstration that this court possesses no power to grant any relief to the plaintiffs under the act of Congress on which these motions are founded.

MOTIONS DENIED.

Mr. Justice BRADLEY, dissenting.

I dissent, with some diffidence, from the opinion of the court, on the following grounds:

1st. That notwithstanding the act of Congress declares that a writ of error shall be a supersedeas if certain conditions are performed, the judgment of the court has the effect of leaving many classes of decrees and judgments in equity, though appealed from, entirely effective and operative between the parties, whereas the writ of error ought to suspend the effect and operation thereof until the case is heard in this court.

2d. That the judgment of this court will have the effect to allow subordinate State courts to evade the supersedeas of a writ of error in all cases where the court of last resort remits the record to them for execution. The judgment of this court disclaims all jurisdiction over the acts of the subordinate State courts, and thereby, in my judgment, surrenders a very important power necessary to the effective support of its appellate jurisdiction.

3d. That the judgment of the court remits the practice on this subject substantially back to the practice of the English courts of equity, in which it is conceded that an appeal does not suspend proceedings nor act as a supersedeas on the proceedings in the court appealed from: and, in effect, departs from the act of Congress, which declares that a writ of error or an appeal in the Federal courts shall be a supersedeas.

4th. That the effect of the judgment of the court is to disclaim its just control over the parties to the record.

NOTES

[*] 2 Howard, 238.

[†] Rubber Co. v. Goodyear, 6 Wallace, 155.

[‡] Ib.

[*] 1 Stat. at Large, 85.

[*] Cohens v. Virginia, 6 Wheaton, 410; Suydam v. Williamson, 20 Howard, 437; Barton v. Forsyth, 5 Wallace, 192.

[†] McGuire v. Commonwealth, 3 Wallace, 386; Gelston v. Hoyt, 3 Wheaton, 246; Green v. Van Buskerk, 3 Wallace, 450.

[‡] Hogan v. Ross, 11 Howard, 296; United States v. Addison, 22 Id. 183; Hudgins et al. v. Kemp, 18 Id. 535; Adams v. Law, 16 Id. 148.

[*] Hogan v. Ross, 11 Howard, 296; Ex parte Milwaukee Railroad Co., 5 Wallace, 188; Stockton et al. v. Bishop, 2 Howard, 74; Wallen v. Williams, 7 Cranch, 279; Saltmarsh v. Tuthill, 12 Howard, 389; Hardeman v. Anderson, 4 Id. 640.

[†] Stockton et al. v. Bishop, 2 Howard, 75.

[*] Railroad Co. v. Bradleys, 7 Wallace, 575.

[*] General Order, 15 Vesey, 184; Waldo v. Caly, 16 Id. 209; Willan v. Willan, 16 Id. 216; 2 Daniels's Chancery Practice, 1547.

[†] Green v. Winter, 1 Johnson's Chancery, 80.

[*] 2 Stat. at Large, 244.

[†] Hart v. Mayor, 3 Paige, 381; Graves v. Maguire, 6 Id. 380; Merced Mining Co. v. Fremont, 7 California, 131; McGarrahan v. Maxwell, 28 Id. 91; Louisiana Code of Practice, art. 307; Delacroix v. Villere, 11 Louisiana Annual, 39; White v. Cazenave, 14 Id. 57; Knabe v. Fernot, 14 Id. 847.

[*] 1 Stat. at Large, 335.