*1 or- Board’s is our conclusion that the It Lane v.
ders in both 3928—Mavis Number Board, Num-
National Labor Relations Relations Board
ber 4075—National Labor Seamprufe, valid Incorporated,
should be enforced.
It so ordered. STATES; UNITED
SMOTHERMAN STATES; v. UNITED
GATELY STATES. UNITED
BRACKHAHN 4111-4113.
Nos. Court United States Circuit.
i Tenth *2 (b) provisions Rule
void under in violation (d), 28 and and Act, 29 U.S.C.A. § Norris-LaGuardia seq. 101 et temporary “No (b) provides: Rule 65 without shall be restraining order it party unless adverse notice to the by affi- specific shown appears from im- complaint that by davit or loss, or mediate and before applicant damage will to result a can be served and notice temporary Every thereon. in- be granted without shall der notice issuance; with the date hour dorsed and why injury and state shall define irreparable why and it is ** And, granted without notice requires “every re- that (d) subdivision ap- City, Witt, for New York Nathan pursuant to the rule order” issued straining pellants. its forth reasons for is- “shall set Atty., Earl Grantham, S. M. U. Everett terms; specific suance; shall be Henry Iden, Albuquerque, A. C. N. detail, by and not describe in reasonable Fe, M., Kiker, appellee. Santa for complaint reference to other docu- Judge, and Before sought or acts to be restrain- ment, the act MURRAH, Circuit ** ed; *”. Judges. that the restraining It is said order void because evidence MURRAH, upon which it was show failed to judgments from These injury and irreparable immediate that Mexi- United States District Court of New given, before be would result notice could contempt proceedings. co in criminal and, by required (b); be- subdivision court, Upon appel- trial to the each of the order, de- cause the when failed to con- was found of criminal injury, irreparable lants why fine the state it was tempt violations notice, why it without Atchison, Topeka case of The by issued required Railway Company Santa Fe v. Sillam- complaint, was the pa, al., pay and sentenced a fine of to order, basis for the imprisonment days. Ap- for 90 $500.00 had, others, conspired with the defendants pellant Smotherman was also found plaintiff Company its operating its fran- trains under circulating statements “which tended public Loving as a carrier from chise jus- due did obstruct the Mexico; Carlsbad, New further- tended dis- tice and the court into conspiracy ance of such the defendants had repute”, given and was sen- an additional by the tracks of the obstructed tence fine and 90 $500.00 im- standing and so that sitting, lying thereon prisonment. prison All the sentences proceed causing trains could without suspended the condition future defendants; injury to the that the defend- obeyed. be orders the court placed placed, ants or caused to rocks ap- To reverse the each of the to wreck and stones track pellants trains, contend that the failed all which caused the or derail to state facts sufficient to constitute con- Railroad its scheduled abandon tempt, in that the restraining order was run. The restraining order recited denied, injunctive set aside and unlawfully preventing the but until orderly judicial was set aside plaintiff company operating process peril were bound at their required by its trains as law under fran- heed its mandate. United *3 chise, by sitting, lying standing 258, Workers, Mine 677, 330 U.S. 67 tracks; the 884; that such acts would continue 91 L.Ed. Kansas, Howat 258 restrained; and, unless 181, immediate and 42 S.Ct. 66 L.Ed. damage loss Shipp, would States v. 203 U.S. 27 S.Ct. result to the railroad 51 before notice could L.Ed. 319. hearing
be served and a
had on the motion
the hearing
At
on
motion for
preliminary injunction.
for a
permanent injunctive relief, the
held
court
dispute
complaint,
affidavits,
The
no labor
existed
between the
restraining
pursuant
appellants,
and the
order issued
there
but
to, irrefutably
position
took the
that if one
answer the
as
did
contentions
exist the
sufficiency
to their
(lb)
65
Norris-LaGuardia Act did not
under Rule
in
Indeed,
(d).
junctive
where,
here,
is
as
violence
imagine
difficult to
was
appropriate
permanent
A
injunction
more
involved.
for the relief
was
rule,
appeal
under the
and no
been
or how an order
has
taken
could be
precisely
But,
more
that order.
drawn
even if
to meet
manda
the Norris-La
tory language
applicable
Guardia
prohibit
Act was
Cf. Gar
in
junctive
States, Cir.,
relief,
land
appellants
182 F.2d
would still be sub
ject
Rumsey
contempt
In re
Mfg. Corp.,
C.,
D.
9 F.R.D.
violation of 'an “out
standing
93.
and unreversed”
court. United States v. United Mine
Appellants next contend that at the time
Workers, supra,
page
67 S.
restraining
order was issued
were
Ct. at
engaged
dispute
in a labor
with certain
potash
Carlsbad;
companies in
which the
restraining
complained
order was
the supporting
acts
of were committed in an
affidavits
the order itself
bring pressure
potash
effort to
on the
attached
com-
panies,
to and made a
protected
of the
against injunc-
and were
contempt
process by
proceedings,
tive
stated
Norris-LaGuardia Act.
facts sufficient
seq.,
contempt.
to constitute
See
Section
U.S.C.A.
Appellant
Smotherman also
complaint, upon
which
judgment
n
of the court finding
guil-
restraining
ty
contempt
for publishing and
all
strangers
to the
circulating,
press,
“in the
over the radio
and there was no rela
telegram
and in the form of a
to the Presi-
tionship
parties,
between the
contractual
dent of the United
Congres-
allegation
or otherwise. This
was to be
Delegation
sional
from New Mexico and to
taken as true until denied. The restraining
Attorney
States”,
General of the United
permanent
was issued
—it
following
statement:
only
quo
protect
to maintain status
“Judge Colin Neblett’s
illegal
issuance of
rights
parties
hearing
until a
could
restraining
potash
New Mexico
be had on the motion
a preliminary
in
contrary
strike at Carlsbad is
to Norris-La
junction
five
later.
Guardia
and brands him
Act
tool
Appellants
industrialists,
right
big
deter
holding
unfit
continue
Any
mine for themselves whether the
high
court had that
office.
who refuses
jurisdiction to restrain
appraise
their acts. That
fails to
himself of
facts and
was a matter for the court
disputes
to decide at the
on labor
open
conducts work
time,
If
democracy.
on the motion.
at
a menace
that'
to our
Be
court
deprived
jurisdiction
1949,.
court found it was
of orders issued Nov-
cause
civil
Act,
Albuquerque,
under the Norris-LaGuardia
action file No.
investigation
urge
complete
were then entitled to have
we
pub-
our We
that the utterance
we feel
will substantiate
conclude
confident
charge
telegram
from the lication
did not constitute
that he
should
removed
contempt
in fact.
bench.” The trial
concluded that
law or
court
a matter
statement constituted
adjudging
of law.
contempt for
appellants guilty of
these
af-
order are
violation of the
provides that
Section
adjudg-
judgment
firmed. The
of the court
have
“A
of the United States
appellant
guilty of ob-
ing
Smotherman
imprisonment,
power
punish fine
justice is
structing the
au-
discretion,
at its
such
dismiss.
reversed with directions
other,
thority,
(1) Misbe-
and none
as —
*4
presence
so
any person
or
havior of
in
Judge, concurs
obstruct the administra-
near thereto
result.
justice;
of
”.
tion
present
Applying the clear and
test,
question
danger
is whether the
opinion af-
I
concur in that
directly in
publication had
of
the effect
of the trial court
firming
orderly
influencing
terfering
with or
of
determining that
justice.
of
impartial
for violations
criminal
California,
Bridges
of
314 U. S.
v. State
action.
entered in the civil
Penne
S.Ct.
L.Ed.
judgment de-
I
affirm
But would also
kamp
Florida, 328
of
U.S.
State
appellant Smotherman
termining that
Harney,
1029,90
Craig
S.Ct.
L.Ed.
criminal
cide. There was be intimidated The “substantive evil” was or influenced. UNITED STATES. SARTORI v. judge, ex attack and at most an No. 4107. try pressed that he was unfit the view States Court matter issue should be im Tenth Circuit. peached. were, While the remarks course, irritating, say vexatious intimidating, had the effect coercing influencing judge his course duty is to fail to accord strength judicial character and fortitude common judiciary vividly exemplified so long judicial record In acts. deed, expressed trial the view such were
“that no words used in destroy, injure
telegram could impair high standing Judge Neblett has
throughout this entire District wher he
ever is known.”