100 S.E. 113 | N.C. | 1919
after stating the case: It is somewhat difficult to understand from the record whether the court withheld the punishment for the contempt in violating the order until the defendants had reasonable time and opportunity to restore the ditch bank, or whether the mandatory injunction was issued absolutely and without regard to any alternative judgment in the way of punishment for the contempt. We rather favor the former construction of the order, but will consider it in both phases.
1. If the order was in the alternative, there can be no (18) question as to the power of the court to make it. Before passing sentence of fine or imprisonment, the court had the undoubted right to give the defendants a chance to repent and undo the wrongful act committed by them in violation of its order. *19
2. But if the order is to be taken as one for a mandatory injunction, requiring the defendants to replace the ditch bank, we still think it was valid. The cases upon the power of the court to issue such an injunction before final decree are somewhat in conflict, but if proper distinctions are made we think they may be reconciled. Some of them, which hold that such a mandatory order cannot be issued until the final decree is passed, seem to refer to those instances where the alleged wrongful act was fully accomplished before the suit was commenced, and not to cases where the wrong ordered to be undone was itself in violation of an interlocutory injunction, as here. A learned and accurate text-writer has said that there would seem to be no good reason why, in a proper case, a mandatory injunction should not issue upon preliminary hearing. Gross violations of rights may occur in the shortest possible time, and a few hours' wrong-doing may result in the creation of an intolerable nuisance or in the production of an injury which, if prolonged, might soon become irreparable. In such cases the interposition of the strong arm of the chancellor ought to be most swift, and if the immediate relief afforded could not, in a proper case, be restorative, as well as prohibitory, no adequate redress would, in many instances, be given. Bispham's Pr. of Equity (9 Ed.), p. 638. And so it was held in Murphey v. Harker,
It has been conceded in many cases that such an injunction before the final hearing will be issued where, though mandatory in substance, it is prohibitory in form, but several text-writers and some of the judges have said that this is a distinction without any difference and should not longer exist. Hilliard on Injunctions, 8. It was said in Bosley v. Susq. Canal, 3 Bland's Ch. (Md.), at p. 66, that while a court of equity will not, in the first instance, command a thing to be done or to be undone by an injunction mandatory in form, yet where acts have been done in violation of an injunction it will order them to be undone or the matter restored. We can conceive of no sound reason why the court may compel a thing to be done or undone by a restrictive injunction, and not require the same thing of the defendant by an injunction mandatory in form. Of course, the defendants should be heard before the mandatory writ is issued, and it should be confined to those cases where it is necessary in order that the status quo may be preserved, but where a previous injunction has been violated we do not see why obedience to it should not be forced by a restoration of things to their former condition. It would be permitting a recalcitrant defendant to profit by his wrong done in contempt of an order forbidding it. Where it is the obstruction of a right of way, as here, there is no difference in ordering him to remove it and requiring him to desist from continuing it. The subject is fully discussed, and our view sustained, (20) in Vicksburg, etc., Rwy, Co., v. Webster, etc., Co., *21
Lord Eldon in one case, Lane v. Newdigate, 10 Vesey 192, was of the opinion that he could not direct the thing specifically to be done, but that he could make an order which would indirectly have that very effect, which he accordingly did, stating how the order should be drawn, by making it restrictive in form, which Lord Brougham, commenting generally upon that kind of practice, considered as merely a "round-about mode," the injunction not commanding anything to be done or undone, but simply that an injurious irregularity should not be permitted any longer to exist, regarding the continuance of the act as a repetition of it. In these days we have found what we deem to be a better method and look rather to the substance than to the form of things, as being a more direct, simple and effective way of dealing with the rights and remedies of litigants. We prefer the modern method, and the tendency of the courts, we are told, has strongly set in that direction.
Why not call this process by its right name instead of granting what is really mandatory, under the guise of preventive relief? When this is done, we are trying to deceive ourselves, for no good or practical reason, when we know what we are actually doing or what the inevitable effect will be. It is simply adherence to an old form and custom of the court of equity, which did not even gain the approval of some of its ablest chancellors. In modern times, since we try to call things by their true and appropriate titles, so we may be better understood, the decided trend of the courts, especially in this county, is towards a more sensible policy, as we have already shown by authority.
We must be careful to remember, in this connection, that whether the defendant in an injunction suit who violates the order should be punished for the contempt shown the court, concerns the court in the matter of the maintenance of its dignity and authority; but whether, by coercive or punitory measures, such defendant should be compelled to obey the writ issued by a competent court for the preservation of a civil right asserted by the plaintiff, concerns the plaintiff, and the action of the trial court on that question may be subject to review on appeal; but where the court has full jurisdiction in the premises, its findings of fact, as to the disobedience of its order, are not open to review in a collateral proceeding, such as habeas corpus. 14 Ruling Case Law, sec. 170; Vicksburg,etc., R. R. Co., v. Webster, etc., Co.,
This is not punishment for the contempt, not authorized by the statute, as contended by the defendants, but is merely a method of enforcing the court's order. As said in Cromartie v. Comrs.,
We find no error in the record.
No error.
Cited: Haggard v. Mitchell,
(22)