State v. La Follette
196 P. 412
Or.
1921
Check Treatment
HARRIS, J.

1. It must be remembered that, so far as the record here discloses, up to the moment when La Follette was adjudged guilty of contempt and sentenced to pay a fine of $100, the suit in equity brought by the Salem King’s Products Co. v. La Follette had proceeded no further than the filing of the complaint, service of summons and complaint on La Follette, and the issuance of the preliminary mandatory injunction. The issues between the parties had not yet been defined, for the time for answering the complaint in the suit had not yet expired; nor had La Follette yet filed an answer. The record does not tell us about the result of the suit in equity; nor, indeed, is the final outcome of that litigation material here. In the instant case we are concerned with nothing except the contempt proceeding. It must be remembered, too, that, regardless of whether or not the order granting a temporary mandatory injunction is an appealable order, La Follette has an unquestioned right to appeal from the judgment declaring him guilty of a contempt because Section 684, Or. L., expressly grants a right of appeal, and State v. O’Day, 41 Or. 495, 499 (69 Pac. 542), is a precedent for holding that the appeal from the judgment rendered in the contempt proceeding “brings up for consideration” the question of the validity of the temporary injunction, even though it be assumed or held that the order for the injunction *7is a nonappealable order: See also: State ex rel. v. Gray, 42 Or. 261, 265 (70 Pac. 904, 71 Pac. 978).

2, 3. In the very nature of thing’s courts must and do have power to enforce observance of their orders by employing contempt proceedings. The power to enforce obedience is not dependent upon whether an order has been wisely or inconsiderately made. If a court has power to make a given order, it also has power to compel obedience to that order until such time as the order is vacated. It is no defense against a contempt proceeding to say that the order which has been disobeyed was not justified by the facts, or was erroneously or improvidently made; because the party has his remedy by appeal and he cannot in a collateral proceeding attack the order for mere irregularities: State ex rel. v. Downing, 40 Or. 309, 321 (58 Pac. 863, 66 Pac. 917). If, however, an order is void because made without jurisdiction, then a party can question the validity of the order and can prevent punishment as for a contempt. An order which is absolutely void is only a seeming order and in truth is no order at all; and hence when a party refuses to obey a void order he has in reality not been guilty of refusing to obey an order of the court: 6 R. C. L. 505; McHenry v. State, 91 Miss. 562 (44 South. 831, 16 L. R. A. (N. S.) 1062); Smith v. People, 2 Colo. App. 99 (29 Pac. 924). Stated broadly, a party cannot be guilty of contempt of court for disobeying an order which the court had no authority of law to make: State v. District Court, 21 Mont. 155 (53 Pac. 272, 69 Am. St. Rep. 645). Of course, the Circuit Court has jurisdiction and therefore power to decide the suit in equity brought by the Salem King’s Products Company against La Follette; and yet even though the court has general *8jurisdiction over that suit in equity, La Follette cannot be held guilty of contempt if the temporary injunction disobeyed by him was made in the ancillary proceeding without jurisdiction, because if the order was made without jurisdiction it was absolutely void: McHenry v. State, 91 Miss. 562 (44 South. 831, 16 L. R. A. (N. S.) 1062); Smith v. People, 2 Colo. App. 99 (29 Pac. 924). The only question to be considered is whether the court had jurisdiction to order the injunction, and the question whether the court erred or the power was improvidently exercised is not involved; Court Rose, F. of A., v. Coma, 279 Ill. 605 (117 N. E. 144).

4. The plaintiff did not furnish, nor did the Circuit Court require, an undertaking. The payment of three and one-half cents per pound to the clerk was designed as a substitute for an undertaking. The only question for decision is whether the failure to give an undertaking rendered the injunction void. In this state, as in most states, there is a statute requiring the plaintiff to furnish an undertaking before a preliminary injunction can be allowed. This legislation was enacted in order to remedy an evil. Issuance of temporary injunctions which were afterwards dissolved upon final hearing oftentimes caused damages to the enjoined party; and yet, no matter how serious the damages may have been, neither law nor equity furnished a remedy, because the damages were supposed to have been caused by the judgment and order of the court and not by the plaintiff, if he did nothing more than sue in good faith. The injustice which so often flowed from injunction orders, for the consequences of which the courts alone were responsible under the law, prompted legislatures to enact statutes requiring the giving of an undertaking *9as a condition precedent for the allowance of a temporary injunction: State ex rel. v. Williams, 221 Mo. 227 (120 S. W. 740).

Our statute, Section 417, Or. L., reads as follows:

“An injunction may be allowed by the court, or judge thereof, at any time after the commencement of the suit and before decree. Before allowing the same, the court or judge shall require of the plaintiff an undertaking, with one or more sureties, to the effect that he will pay all costs and disbursements that may be decreed to the defendant, and such damages, not exceeding an amount therein specified, as he may sustain by reason of the injunction if the same be wrongful or without sufficient cause.”

The language of the statute is imperative, for the wording is “before allowing same, the court or judge shall require of the plaintiff an undertaking”: Henderson v. Tillamook Hotel Co., 76 Or. 379, 387 (148 Pac. 57, 149 Pac. 473). This statute in effect declares that judges and courts are without jurisdiction and therefore without power to allow temporary injunctions unless an undertaking is first filed.

The relator suggests that the payment of money into court is not only equivalent to but better than an undertaking. The answer to this suggestion is that the statute commands the giving of an undertaking and makes no provision for the deposit of money in lieu of an undertaking. If the legislature had intended that a money deposit should be the equivalent of an undertaking, it would have made provision for the deposit of money just as it did in the case of giving bail after an arrest. Moreover, the payment of three and one-half cents per pound to the clerk did not furnish the same security as an undertaking. The undertaking required by statute secures the defendant for his costs and disburse-*10meats as well as for Ms damages. It is true that the court fixes the amount of the undertaking and that the court in the instant case did fix the amount of money to be paid into court; but it is also true that the amount paid into court was security only for the berries themselves and there was no security at all for the defendant’s costs and disbursements. If an undertaking had been filed it would have been security for the whole amount of costs and disbursements in addition to the security- for damages, regardless of the amount fixed in the undertaking, as the limitation of amount fixed in the undertaking applies only to the amount of the damages: Officer v. Morrison, 54 Or. 459 (102 Pac. 792).

The giving of an undertaking is indispensable. The court could not dispense with that which the legislature has declared to be indispensable: Swope v. Seattle, 35 Wash. 69 (76 Pac. 517). Although the court acquired jurisdiction over the suit, it did not acquire jurisdiction to allow a preliminary injunction in the ancillary proceeding attempted to be prosecuted by the plaintiff. The failure to give the undertaking rendered the order for the injunction absolutely void; and therefore La Follette cannot be punished as for a contempt. Although there are a few adjudications to the contrary, the overwhelming weight of 'judicial opinion is in accord with our conclusion: State v. Greene, 48 Neb. 327 (67 N. W. 162); State ex rel. v. McQuillin, 260 Mo. 164 (168 S. W. 924); State ex rel. v. Williams, 221 Mo. 227 (120 S. W. 740); Castleman v. State, 94 Miss. 609 (47 South. 647); Baker v. Meisch, 29 Neb. 227 (45 N. W. 685); Ex parte Miller, 129 Ala. 130 (30 South. 611, 87 Am. St. Rep. 49); Baur v. Wilkes-Barre L. Co., 259 Pa. St. 117 (102 Atl. 430); Boykin v. Patterson *11(Tex. Civ. App.), 214 S. W. 611; Griffith v. State (Tex. Civ. App.), 210 S. W. 293; McHenry v. State, 91 Miss. 562 (44 South. 831, 16 L. R. A. (N. S.) 1062); Smith v. People, 2 Colo. App. 99 (29 Pac. 924); MacWatters v. Stockslager, 29 Idaho, 803 (162 Pac. 671); Diehl v. Friester, 37 Ohio St. 473; Lawton v. Richardson, 115 Mich. 12 (72 N. W. 988). See, also: Western Academy Beaux Arts v. De Bit, 101 Wash. 42 (171 Pac. 1036); Swope v. Seattle, 35 Wash. 69 (76 Pac. 517); 1 Spelling on Injunctions (2 ed.), § 935; Winslow v. Nayson, 113 Mass. 411; Conley v. Brewer (W. Va.), 102 S. E. 607.

The judgment is reversed. Reversed.

Burnett, C. J., and Johns and McBride, JJ., concur.