C6ti/rt.

Net'89l'

-j,

-I

N(D.

Jun. f.'I_>

9.

The prohil:iition of the constitution of the United Btlites against tlle enaetttlent of state laws that shall impair the obligation of contracts applies only to the adoptioD C()DsW,l!tioll" of' P4!'ption qf a or theexerqiiM! :of ldme form (Sf legislative tlowel.' sublieifl1entin time to the C()ntract.
BllIE. '

'Co'WrRiciTll. , ' ; , , "

of F. in administering upon his estate, that the obligation,of the contract of the own-er of the tall: deed was not impaired by the probate IIa1e withlJl the prohibithe j:onstitution. tion <SIitktbUw 1iiIthiJ Cd1.m't.) ,
,I .· '.',;

-,In EquittonDernurrer to the BilL , HlYYl76 14c 6:lrBon, for complainant. ' ,1 JUlniUBR'ocM8fm, for defendants. '
Gtt.BEBT\ Circuit The cotnplainant suU, alleging in his bill; in su'bstiLl'lcejthait -in ,October, 1878,his grantor acquired from the territory of: ' tax 'title to cemin land in King county, sold, for :unpaid 'taKes: ll.s'the1Jroperty Of one Lumley Franklin; that possession' was takenbyJ complainant's grantor under said tax deed, and maintained' until theoon'V'eyanoo oftbe'property' to complainant in September, 1885, sirice-"whiehl time he lid been in,Posaession and 'made valuable improvementisj that on 1887,; b!1order of the probate court of King ,an' administrator of of.'said Franklin, then deceMed, , wati appointed, upon petition of· the administrator and' under the· order' the said court the land in question was sold as the' property of 'snid decedent, and ito: pay a tax claimed by the territory to be. dne iTomsald:Franklin;lhat said sale waS made in violation of the contrMt' whereby thetettitory :sold said land to complainant's grantor for unPaid taxellj tbatbne of the :defendants became purchaser of said property. at theprobilte slilerand a deed waamade to him in violation (if tbe o'blili1;a:tionot' 'saidtil'st contract with complainant's grantor,. Il.nd in :violation of article 1, § 10), of the constitution of the United States" and of sections: 1851 and 1891 j Rev. St. U. S.,which make the provi· sionsof thecbnstitutionapplicahle to the territoriesithat by the law in force at the ,time complainant's 'tax deed Was aoquired the tax deed was made pret5Util\ptiva evidence' (lfthetegularityof! alHormer proceedings, and suit the recovery of the' property was prohibited after the expirationof three y.ears from the date of recording of'the deed, except in cases where ,tpe'ltaxhad beeh paid: calla thelarid redeemed; that tbedefendants' had notice:ofthe complainant!s 'right, Rnd tbeirlidministratotl's deed was procured,.in ,pur.suance of a conspiracy to deprive him of I!a,idproperty, and said property is worth $8,000. The prayer of the bill is that tho

or

·'

HANFORD. ". DAVIES. '

;

259

admini$tra.tbr'sdeed declared invalid, and. that the defendants be enjoined from to said premises. . A demurrer'to the bill raises the question of the jurisdiction of this court.. 'The, only. ground of jurisdiction claimed by the complainant is the federal question involved in the allegation of the bill that the probate proceedings, sale, and conveyance are in violation of article 1,:§10, of the constitution of the United States. That provision of the constitution inhibits the· enactment state laws that shall impair the obligation ofcontracts. It protects the obligation of contracts only so far 8S it may be affected by legislation. .The limit of the protection of the constitution is well defined by Mr. Justice GRAY as follows:

of

"In order to come within the provision of the constitution of the United States which declares that no state shall pass any law impairing the obligation the ouligation of a contract have been impaired, of contracts, not ol),ly but it must have' beeR by a law of the state. The-prohibition is aimed at the legislative powers of the state; and not at the decisions of its courts, or the acts of administrative boards or officers." New 01'1eans Waterworks 00. v. Louisiana I$uga., Refining .(Jo·· 125 U. S. 18, 30, 8 Sup. Ct. Rep. 741. , In Railroad Co. v. Rock,'4, Wall. 177, Mr. Justice MILLER said: "It must be the constitutioll or some law of the state wbich impidrs the obligation of the contra.ct, or which is otherwise in contlict with the constitution of tbe United States; and the decision of the state COUI't must sustain the la w or constitution of the state in the matter in which tbe contlict is 8Upposed to exist, ,or the case for this court does not arise."

While there has been no deviation by the supreme court from the doctrine of these 'cases, it has been held that the legislation prohibited by the constitution need not bn in the form of a statute enacted by the legislature or a constitution adopted by the people. It may be the exercise of legislative power delegated by the legislature to a municipal corporation, (U. S. v. New Orleans, 98 U. S. 381,) and it may apply to aD enactment, from whatever source derived, to which the st&te gives the force oflaw, (Williams v. Bruffy, 96 U. S. 176.) The bill in this case refers to no law enacted or enforced by the territory of Washington that comes within the prohibition of the constitution. Complaint is made, not of the laws, but of the action of the probate court, the administrator, and the defendants. The allegations are that the impairment of complainant's contract occurred through the wrongful or erroneous administration of laws that are not alleged to be unconstitutional. The probate sale, it is true, was made to pay a tax. The assessment of a tax is a legislative act, and it has been held that the provision of theconstitlltion under consideration is a limitation upon the taxing power of the state. Murray v. (Jharleston, 96 U. S. 432, but there is no allegation in this bill that the assessment for the payment of which the probate sale was made was levied in viol,ation of the obligation of the com plainant's contract, or that it was in point of time. The case of Wright v. Nagl.e, 101 U. S. 791, relied upon.,hy counsel for complainant, is not perceived to be in conflict with the.decisioIl$ above cited. In that case the inferior court of Floyd county, Ga., had granted the plaintiff the exclusive right to

260

FEDERAL REPeRTER,

voL 51.

bridges over certain rivers. Subsequently the commissioners of roads and revenues for the county. authorized the defendant to erectahdmaiutain a bridge within the limits of the original grant. The bill alleged that the board in granting the franchise exercised legislative:powers conferred upon it by the laws of the state, and that the grant was inthe nature of a statute of thelegislature. The court held that the question whether the subsequent action of the commissioners was in its legal.effect equivalent toa law of the state impairing the obligation. of the contract was a federal question that gave jurisdiction. The demurrer is sustained.

ti:EUR D'ALENE CONSOLIDATED

&

MINJNG CO. 'V. MINERS' UNION OF

WARDNER

et al.

(Circuit Oourt, D. Idaho. July 11, 1892;)
1. All injunction may be. to restrain labor unions and members thereof from entering upon complainant's mines, or interfering with the working thereof, or by force, threats, 'or intimidation, preventing complainant's employes from working the··mines, wl!ere the threQtened acts are such that their frequent occurrence may be exp,ected, and defendants are insolyent.
SAMll-RESTRAINING TRllSP4BS, TO R1l:AI,TY.. UNIOlllS-INTIlRlI'IlBIlNCIl WITH EMPLO'YllS.

2.

The rule that a trespass cannot be enjoined unless on realty, and where the damIs irreparable, and after the right or title involved .has been established at law, does not apply to such a case, as no title. to realty is involved, and the acts com· plainedof are not a direct trespass to realty, but only indirectly affect the enjoyment of property and other rights.

. .

S. SAME-RllS'l!RAINING CRIMINAL AOTS.

Neither does 'the rule. tbatequity will not interfere for the prevention of crime apply, the act!! done or threatened not being criminal, though unlawful, and such as may lead to the commission of criminal acts.
On the question of con.tinu,ing su.oh an injunction pending the suit statements su-pporting complainant's allegations, contained in a proclamation by the governor of the state. whioh is part Qf tl!erecordin the case, made by him after personal investigationofthe facts, may be cOllllidered.

.. SAME,....E;vIDj'lNOE-GovllRNoR'SPROOLAMATION.

5.

SA'ME-'--GOOD FAITH OF COMPLAINANT.

An allegation by complainant that defendants' interference had compelled a former suspensiQll of work, for. whicl!j at the time, complainant gave a different reason, does not. show such bad, faith ,II,S to justify a dissolution of the injunction, where, so far as appears, both causes may have induced the suspension. '

6.

SAME-COMPLAINANT MEMBllBOi' i!LLRGAI, ASSOCIATION.

The fact that complainant III a member of an association which is alleged to be illegal, is no ground for to entertain its Iluit, instituted in its own name, and for its oWn interest, and not appearing to be the direct result or a part of any illegal association, or conspiracy.

In Equity. Action by the ,Oceur d'Alene Consolidated & Mining Company against the Miners' Union of Wardner and others.. Order continuingirijunction against defenda.nts pending the action. Albert Hagatn and W. B. HeyQurn, for complainant. Frank Ganahl and James H. Bawley, for defendants.