Lake Charles Metal Trades Council v. Newport Industries, Inc.
181 F.2d 820
5th Cir.
1950
Check Treatment
PER CURIAM.

Aрpealing from a preliminary injunction issued August 9, 1949, restraining them from: (1) mass picketing by assembling in -compact groups so as to physically obstruct or prevent ingress to, or egress from, its property, by Newport Industries, Inc., or any of its employees, or freedom of movement along the roads in or about said property; (2) threatening by violence to intimidate or сoerce employees of New- ■ port, or- those seeking employment with it; and (3) оbstructing, or attempting to obstruct, the free movement of its employees in or about its premises; defendants are here insisting that the order was beyond the power, and an abuse of the discretion, of the court, and may not stand.

Appellee, moving to dismiss the appeal as moot, supports its motion, by affidavits showing:. (1) that the building job being done on Newport’s property by the Indus *821 trial Development Corporation of Louisiana, with whom, and not with Newport, the appellants, defendants below, 'had their dispute, was completed on December 1, 1949, that Industrial and its employees then withdrew from Newport’s premises, and since that date no employee of Industrial has worked or been thereupon; ‍‌​​​‌‌​​​​​​​​​‌‌‌​​‌‌‌​‌​‌‌​‌​‌​​‌‌‌​‌‌‌​​‌​‌​​‍(2) that peaceful picketing, which was not prohibited by the order, continued until September 6, 1949, but on that day it ceased, the pickets were withdrawn, and no picketing of any kind has been carriеd on since; and (3) that no criminal contempt proceedings have been filed agаinst any of the defendants.

Insisting that, on the basis of this showing, it must be held that there is no longer any actuаl controversy involving real and substantial rights, and that the matters raised by the appeal are now moot, it supports this position by the citation 1 of many authorities holding that an appellate court will not decide moot questions.

Appellants present no cоntroverting affidavits, indeed they concede the facts to be as stated in the motion. Thеy do not dispute, they concede appellee’s contention that this court will nоt decide moot questions on an appeal. Their insistence is that, while it is true that the building operations conducted ‍‌​​​‌‌​​​​​​​​​‌‌‌​​‌‌‌​‌​‌‌​‌​‌​​‌‌‌​‌‌‌​​‌​‌​​‍by Industrial, which caused the picketing, the suit, and the injunction, arе over, and all picketing has ceased, the questions brought up for decision by the appeal are questions of great importance, and it is the duty of this court to “instruct, advisе, nay to admonish Bench and Bar” in respect of them.

Further, they urge upon us that if the apрeal is dismissed, this will leave the in-

junction in force to interfere with and deprive appellants of their rights if they decide again to take violent and unlawful action.

Finally, they argue thаt the necessity for a determination ‍‌​​​‌‌​​​​​​​​​‌‌‌​​‌‌‌​‌​‌‌​‌​‌​​‌‌‌​‌‌‌​​‌​‌​​‍of the costs prevents the controversy from becoming moot.

We cannot agree. If there is any proposition which is well settled in thе law, it is that a federal appellate court will not do the vain thing of making a decision on questions which, as between the parties to the suit, have become academic or moot, but will reverse the judgment and direct the dismissal of the suit. 2

It is equally well settled that a сourt will not determine questions which ■have become moot merely to settle upon whоm the costs of appeal should fall, but it will award the costs on an equitable basis without rеgard to the merits of the appeal. 3

The information furnished in support of the motion to dismiss the. cause as moot shows that there are no contempt proceedings рending or filed as a result of the ‍‌​​​‌‌​​​​​​​​​‌‌‌​​‌‌‌​‌​‌‌​‌​‌​​‌‌‌​‌‌‌​​‌​‌​​‍injunction, no active controversy pending in the causе, and there is nothing left for determination in it except the question of who pays the cоsts of appeal.

It is quite clear, therefore, that this court should not, indeed cannot, proceed to a determination of the appeal on the merits and that the judgment to be here entered is a judgment vacating the order appealed from аnd reversing and remanding the cause with directions to dismiss it from the docket as moot, all costs of the appeal to be taxed against the appellee.

Reversed and dismissed as moot.

Notes

1

. 3 Am.Jur., “Appeаl and Error” Sec. 733, 734 and 735, and Sec. 824, Moot Questions.

2

. Brownlow v. Schwartz, 261 U.S. 216, 43 S.Ct. 263, 67 L.Ed. 620 and cases cited; Barker Painting Co. v. Local No. 734, ‍‌​​​‌‌​​​​​​​​​‌‌‌​​‌‌‌​‌​‌‌​‌​‌​​‌‌‌​‌‌‌​​‌​‌​​‍Brotherhood of Painters, Decorators, and Paperhangers, 281 U.S. 462, 50 S.Ct. 356, 74 L.Ed. 967; Robertson and Kirkham, Jurisdiction of the Supreme Court, Sec. 251, p. 439.

3

. Heitmuller v. Stokes, 256 U.S. 359, 362, 4L S.Ct. 522, 65 L.Ed. 990; Brotherhood of Locomotive Engineers v. U. S., D.C. Cir., 174 F.2d 160; Robertson and Kirkham, note 2, supra, Sec. 256; Glendale Elastic Fabrics Co. v. Smith, 100 U.S. 110, 25 L.Ed. 547; In re Paper-Bag Cases, 105 U.S. 766, 26 L.Ed. 959.