
    
      In re PEOPLE ex rel. THEODORE ROOSEVELT, et al., v. FRANKLIN EDSON, Impleaded, &c.
    
      Gontempt for violating the injunction ref erred to in the preceding opinion.
    
    In a proper action, brought by the proper party, and upon sufficient facts properly presented, an injunction may be issued by a court of general jurisdiction restraining the making of an illegal or corrupt appointment to a public office by the mayor of the city of New York.
    Such an action could formerly be brought only by a party individually and specially aggrieved. But under chapter 531 of the Laws of 1881 it may be brought by one or more taxpayers possessing the qualifications prescribed by said act, although representing no special private grievance. By said statute the right of action was extended so as to cover every illegal official act on the part of any of the officers named therein.
    A defendant is in contempt, and may be punished, for breach of an injunction, if the court or officer who granted it had jurisdiction, notwithstanding that the injunction was improperly or erroneously granted, or for an insufficient cause, or that it was too broad, or that it was, after the breach, vacated on motion. In every such case the defendant is bound to obey the order while it is in force.
    Jurisdiction over the subject matter of an action does not depend upon the presentation of facts sufficient to make out a specific and immediate cause of action, nor upon the ultimate existence of a good cause of action in the plaintiff in the particular case. It is the power lawfully conferred to deal with the general or abstract question involved in the action, and to inquire and adjudge whether the facts presented in a particular case which falls within the general or abstract jurisdiction, door do not entitle the plaintiff to any relief.
    Although in a case under section 603 of the Code of Civil Procedure, the right to an injunction during the pendency of the action depends upon the nature of the action, and is to appear from the complaint, yet if there be jurisdiction of the subject matter of the action within the rule above stated, an erroneous decision by a court or judge upon an application for an injunction as to the necessity of the presentation then and there of a formal complaint, does not render an injunction granted without a complaint void ab initio. At most, the absence of a complaint constitutes ground for a motion to vacate the order.
    A judge of the court of common pleas for the city and county of Now York is a county judge within .the meaning of section 606 of the Code of Civil Procedure, and of chapter 531 of Laws 1881, and as such has jurisdiction to grant an order of injunction in an action commenced, or about to be commenced in the superior court of the city of New York.
    Section 1809 of the Code of Civil Procedure, does not apply to the corporation of the city of New York, or to any municipal corporation, nor to any officer of any such corporation.
    
      Decided February 10, 1885.
    Upon a motion to punish for contempt in willfully violating an injunction granted with jurisdiction and personally served, it is no excuse that the defendant was advised by counsel, and believed that the injunction was null and void, and that he acted upon such advice and belief; or that the defendant believed it to be his duty under a statute to disregard the injunction; or that the defendant believed that the action was brought maliciously and without any foundation in fact; or that the injunction was, after its violation, vacated on motion.
    Advice of counsel, when stated in general terms only, and without the production of the writing, if written, or the affidavit of the counsel, if oral, will never be accepted as an excuse for a clear contempt. At most it may be considered in meting out punishment as an extenuating circumstance.
    The distinction between proceedings to punish for criminal contempt, and proceedings to punish as for contempt in civil cases, and the practice in both under the Code of Civil Procedure, stated and explained.
    Before Freedman, J., at Special Term.
    Motion to commit defendant, Franklin Edson, for contempt for willful disobedience of an injunction order.
    The facts appear in the opinion.
    
      Charles P. Miller, for relator, for the motion.
    
      Sewall, Pierce & Sheldon and David Dudley Field, and Robert Sewall, for defendant Edson, in opposition.
   Freedman, J.

This an application on behalf of the plaintiffs, that the defendant, Franklin Edson, be punished for a contempt of this court in willfully disobeying and violating an order of injunction, heretofore granted in this action by the Hon. Miles Beach, a judge of the court of common pleas for the city and county of New York, by which the said defendant, as mayor of the city of New York, was enjoined and restrained from appointing to, or nominating for, the office of commissioner of public works, or the office of counsel to the corporation, any person, until the further order of this court.

A copy of the said order of injunction, together with a copy of the bond or undertaking given by the plaintiffs on its procurement, and a copy of the summons in the action, accompanied by copies of the affidavits on which the order was granted, having been duly served on the defendant on the 80th day of December, 1884, no question arises as to the jurisdiction of the court over the person of the defendant, provided there was jurisdiction in other respects.

Since the service thus made, the question whether the injunction should be continued during the pendency of the action, was elaborately argued before the Hon. Charles H. Truax, at a special term of this court, and that learned judge decided that the motion for the continuance of the injunction should be denied, and that the preliminary injunction should be dissolved. This decision is no, bar to the present application. During the existence of the injunction the defendant was bound to obey it unless it was not merely voidable, but absolutely void, for the reason that it was made without any jurisdiction whatever. “While the injunction remained in force,” said Chancellor Walworth, in People v. Spalding, (2 Paige, 320), £ £ it was the duty of the vice-chancellor to punish every breach thereof; and in no case can a defendant be permitted to disobey an injunction regularly issued, whatever ihay be the final decision of the court upon the merits of the cause. If there is not sufficient equity upon the face of the bill to support the injunction, the proper course for the defendant is to apply at once for a dissolution.”

A party, therefore, will be in contempt for breach of an injunction, if the officer allowing it had jurisdiction, notwithstanding that it was erroneously granted, and for an insufficient cause (Sullivan v. Judah, 4 Paige, 444; Davis v. The Mayor, &c., 1 Duer, 451; People v. Sturtevant, 9 N. Y. 263 ; Erie Railway Co. v. Ramsay, 45 N. Y. 631; People v. Dwyer, 90 N. Y. 402).

But although the decision referred to, is no bar, the grounds upon which it was made, are important elements to be considered. In making that decision, Judge Tbuax, in a carefully prepared opinion, reached in substance the following conclusions, namely:

1. That in a proper action, brought by the proper party, and upon sufficient facts properly presented, an injunction restraining the making of an illegal or corrupt appointment to a public office by the mayor of the city of Mew York, may be issued;

2. That the facts presented by the affidavits in this case, did not warrant an injunction restraining the mayor from making any appointment or nomination, but only an injunction restraining the appointment or nomination, and the confirmation by the board of aldermen, of a particular individual, viz.: Fitz John Porter ; and

3. That because the papers upon which the injunction was granted, were unaccompanied by a complaint, and because the action was one in which the right to injunctive relief must appear from the complaint, the prehminary injunction which restrained the appointment or nomination of any person, should be vacated entirely.

The interests of an orderly administration of justice, as well as judicial custom and tradition, require that, in the absence of proof of a clear mistake or oversight, or of new and additional facts calling for a change, I should, while sitting at special term, respect and follow these conclusions.

A careful examination of the facts now made to appear, and due reflection upon the arguments of the learned counsel for the respective parties, have failed to present to my mind a sufficient reason for a departure from the usual course. I shall, therefore, in the disposition to be made of the present application, adopt the conclusions reached by Judge Tbuax as far as they go.

But they do not determine the question whether the learned judge of the court of common pleas, who granted the preliminary injunction, had jurisdiction to grant that particular injunction. Upon this point it is claimed, in the first place, that the injunction was null and void, because the learned judge who granted it, was not, and is not, a judge of this court, but of the court of common pleas; and because the only authority which prescribes by whom an order of injunction may be granted, is contained in section 606 of the Code of Civil Procedure. Under that section an injunction order may be granted : 1. By the court in which the action is brought; 2. Or by a judge thereof; 3. Or by any county judge.

In the Matter of Morgan, &c. (56 N. Y. 629), and in Lang v. Brown (6 Hun, 256), it was held that the judges of the court of common pleas are county judges for certain purposes; and in Wood v. Kelly (2 Hilt. 334) it was pointed out that they possess all the powers of county judges. The reasons which prevailed in these cases, would require me to hold that a judge of the court of common pleas is a county judge within the meaning of section 606, if that section were, as claimed, the only authority which specifies the officers who may make such an ■order. But such is not the fact. The section itself commences with the words, “Except where it is otherwise -specially prescribed by law.” Section 772 makes further and special provisions to the effect, that where an order in .an action may be made by a judge of the court out of court, it may be made by any justice of the supreme court, or by any judge of a superior city court, within the city wherein the court is located (which includes the court of common pleas), or by the county judge of the county where the action is triable, or in which the attorney for the applicant resides. This disposes of the claim so far considered, for the concluding part of the section prescribing the manner in which an order thus made, in case it grants a provisional remedy, may be vacated or modified, clearly shows that the order referred to, includes any order granting a provisional remedy, and a preliminary injunction is a provisional remedy. In addition to all this, it may yet be pointed out that section 277 provides, that in an action or special proceeding, brought in a superior city court, an order may be made without notice, or an order to stay proceedings may be made upon notice, by the county judge of the county where the court is situated, or of the county where the attorney for the applicant resides, in a case where a judge of the superior city court might make the same out of court, and with like effect.

In the next place, the defendant claims that the injunction was null and void under section 1809, which is as follows, viz.: “An injunction order, suspending the general and ordinary business of a corporation or of a joint stock association, consisting of seven or more persons, or suspending from office, or restraining from the performance of his duties, a trustee, director or other officer thereof, can be granted only by the court, upon notice of the application therefor to the proper officer of the corporation or association, - or to the trustee, director, or other officer enjoined. If such an injunction order is made otherwise than as prescribed in this section, it is void.”

This section is contained in article V. of title II. of chapter XV. of the Code of Civil Procedure. Title II. of this chapter is entitled “Actions relating to a Corporation, ” and the different articles of this title are respectively entitled as follows, viz. : Article 1. Action by a corporation, and against a corporation, to recover damages or property. Article 2. Judicial supervision of a corporation and of the officers and members thereof. Article 3. Actions to procure the dissolution of a corporation, and actions to enforce the individual liability of the officers or members of a corporation, with or without a dissolution thereof. Article 4. Action by the people to annul a corporation. Article 5. Provisions applicable to two or more of the actions specified in this title.

Section 1804, which is the first section of article 5, provides that articles 2, 3 and 4, of title II. do not apply to an incorporated library society; to a religious corporation; to a select school or academy incorporated by the regents of the university, or by an act of the legislature, or to a municipal or other political corporation created by the constitution, or by or under the laws of the state.

From tliis it would seem as if sections 1804 to 1813, contained in article 5, were left so as to include a municipal corporation. But the provisions of article 5 are defined in the title of said article to be applicable only to two or more of the actions specified in title II.

How, all the actions specified in that title (except those mentioned in sections 1778, 1779 and 1780 in article I., which relate to actions against foreign corporations and to an action against a domestic corporation on a promissory note or other evidence of debt), are specified in articles 2, 3 and 4, and concerning these articles it is expressly enacted, as already stated, that they shall not apply to a municipal corporation. Sections 1805, 1806, 1807 and 1808 of article 5 refer expressly to actions brought as prescribed in articles 2, 3 and 4. Section 1810 provides for the appointment of receivers of corporations. Section 1812 contains express limitations on the application of section 1809, and both these sections are taken from chapter 151 of Laws 1870, a reference to which shows, that it was meant to refer to business corporations only.

The limitation contained in section 1812 requires that the application of section 1809 shall be confined to corporations, or joint stock associations, created by or under the laws of this state, and to the trustees, directors or other officers, of such corporations. The corporation known by the title of “ The Mayor, Aldermen and Commonalty of the City of Hew York,” was not in any sense created by or under the laws of the state of Hew York, though it is now subject to such laws.

It was created by and under Crown charters still largely in force and effect.

It therefore clearly appears that section 1809 does not apply to the corporation of the city of Hew York, nor to any officer thereof. But even if. it did, it would only, as I am inclined to believe, prohibit the granting, without previous notice, of an injunction which, when granted, would operate as a suspension of the general and ordinary business of the corporation, or as a total suspension from office of an officer thereof, or as a total restraint upon the general performance of the duties of such an officer. The mjunction in the case at bar was not of that character. It only .restrained the exercise of a single power or duty out of many, and it left the general and ordinary business of the corporation,-—if a municipal corporation can be deemed to • have a general and ordinary business within the true meaning of.these words, as used in section 1809,— undisturbed, and the mayor unrestrained in the performance of his other multifarious powers and duties. In this connection it may be well to point out that chapter 531 of the Laws of 1881, which will be more fully considered hereafter, expressly authorizes the granting of an injunction against any officer of a municipal corporation to prevent any illegal official act.

In the third place, the defendant claims that the injunction was null and void, for the reason that the facts presented by the affidavits, did not warrant an injunction restraining the mayor from making any appointment or nomination, but at most only an injunction restraining the consummation of the appointment, and the confirmation of such appointment by the board of aldermen, of a particular individual, viz.: General Fitz John Porter.

That the affidavits contained competent proof only to such a limited extent, has been expressly decided by Judge Trtjax. But from that it does not follow that the injunction, though too broad, was without jurisdiction.

The papers presented on the application for the injunction showed that the action wras brought under chapter 531 of the Laws of 1881, entitled “ An act for the protection of taxpayers.” This statute provides that all officers, agents, commissioners and other persons, acting for and on behalf of any county, town, village or municipal corporation in this state, and each and every one of them, may be prosecuted, and an action or actions maintained against them to prevent any illegal official act on the part of any such officers, agents, commissioners or other persons, or to prevent waste or injury to any property, funds or estate of such county, town, village or municipal corporation by any person whose assessment, or by any number of persons jointly the sum of whose assessments shall amount to one thousand dollars, and who shall be liable to pay taxes on such assessment or assessments rathe county, town, village or municipal corporation, to prevent the waste or injury of whose property the action is brought, or who have been assessed or paid taxes therein upon an assessment or assessments of the above named amount, within one year previous to the commencement of any such action or actions.

This statute took the place of chapter 435 of the Laws of 1880, which it repealed. The act of 1880 amended chapter 526 of the Laws of 1879, which amended chapter 161 of the Laws of 1872, which was the first of the so-called taxpayers’ acts. The act last referred to, conferred upon certain taxpayers therein described, the right to prosecute all officers and agents acting for and on behalf of any county, town or municipal corporation, in order to prevent waste or injury to any property, funds or estate of such county, town or municipal corporation. By the act of 1881 all officers and agents of villages were included, and the right of action enlarged, so as to enable the complaining taxpayers, not only to prevent the waste or injury, but also to restrain any illegal official act. Upon furnishing, as required by said act, a bond to the defendant in the action, to be approved by a judge, and a copy of which is to be served with the summons, the plaintiff or plaintiffs in such an action may have an injunction to accompany the summons.

In the case at bar, a bond drawn in conformity with the requirements of the statute, was submitted to Judge Beach, with the summons in the action and certain affidavits. These affidavits, as already stated, contained sufficient competent proof to authorize an injunction restraining the consummation of the appointment, and the confirmation of such appointment by the board of aldermen, of General Fitz John. Porter as commissioner of public works. But that was not all. They also contained many allegations having the appearance of allegations of fact, to the effect that, in furtherance of a corrupt bargain and combination, the nomination of General Fitz John Porter to the board of aldermen, would be withdrawn by the mayor, and that thereupon, in furtherance of a corrupt bargain or understanding, the defendant, as mayor, would illegally make, and the board of aldermen illegally confirm, nominations for the office of commissioner of public works and the office of counsel to the corporation, and that under no circumstances honest nominations were to be made.

Upon the papers thus presented and their contents, Judge Beach was called upon to determine whether an injunction of some sort should issue, and, if so, to what extent, or whether the motion for an injunction should be denied altogether. If he had jurisdiction to make the determination, he had jurisdiction to act further in the premises. Now the act of 1881 expressly authorizes a county judge to make such a determination and to act upon it. If, therefore, Judge Beach possessed no other power than the powers of a county judge, acting exclusively under and by virtue of the authority vested in him by the act of 1881, which is hardly the case, he had at least jurisdiction to that extent. The same reasons which required me to hold that he was, and is, a county judge within the meaning of that term, as used in section 606 of the Code, call for the conclusion that he was, and is, a county judge within the meaning of that term, as used in ■ the statute of 1881.

The inevitable consequence is that, inasmuch as he had power to determine the application and to act further in the premises after having determined that the plaintiffs were entitled to injunctive relief of some sort, jurisdiction attached to the order as finally granted. The authorities upon this point are quite conclusive. In the People v. Sturtevant (9 N. Y. 263), it was held that on an appeal from a commitment for contempt in disobeying an injunction, the question of jurisdiction does not involve the inquiry whether the case made by the complaint entitled the plaintiffs to relief, but only whether the court had power to decide, whether it entitled them to relief or not. In Hunt v. Hunt (72 N. Y. 217), it was held that jurisdiction over the subject matter of an injunction, does not depend upon the ultimate existence.of a good cause of action in the plaintiff in the particular case. Jurisdiction is the power lawfully conferred to deal with the general subject involved in the action.

In Lange v. Benedict (73 N. Y. 12), Folger, J., says : “ What is meant by jurisdiction of the subject matter we have had occasion to consider lately, in Hunt v. Hunt (72 N. Y. 217). It is not confined within the particular facts, which must be shown before a court or a judge, to make out a specific and immediate cause of action it is as extensive as the general or abstract question, which falls within the power of the tribunal or officer to act concerning.....It is 'the general abstract thing which is the subject matter. The power to inquire and adjudge whether the facts of each particular case make that case a part or an instance of that general thing—that power is jurisdiction of the subject matter.”

In the Mayor, &c. of New York v. The N. Y. and Staten Island Ferry Co. (64 N. Y. 622), it was held, that an injunction order, though more extensive in its restraints, than the prayer of the complaint, is not, for that reason void, but must be obeyed.

And in the case of the Atlantic and Pacific Telegraph Co. v. The Baltimore and Ohio R. R. Co. (46 Super. Ct. 377), it was held that the fact that an injunction is too broad, and restrains the doing of acts which the court has no jurisdiction whatever to restrain, as well as acts over Which the court has jurisdiction, is no excuse for the violation of the injunction, by the doing of the acts over which there is jurisdiction.

In view of these authorities, it can make no difference in the case at bar, so far as the question of jurisdiction is concerned, that the order of injunction as granted was too broad, or that the learned judge who granted it, erred as to the measure of relief. thereby granted, or that it was subsequently determined, on a hearing of all parties and a thorough inspection and examination of the papers and a searching analysis of their contents, that no injunction should have been granted.

In the fourth place, the defendant claims that the injunction was null and void, because no complaint accompanied the papers upon which it was granted. As already stated, this failure to include a complaint constituted the ground upon which the injunction was vacated by Judge Truax. But did it constitute a jurisdictional defect ?

The Code of Civil Procedure provides that a temporary injunction may be granted by order. (1.) Where it appears from the complaint that the plaintiff demands and is entitled to a judgment against a defendant, restraining the commission or continuance of an act, the commission or continuance of which, during the pendency of the action, would produce injury to the plaintiff (§ 603), and (2.) Where it appears, by affidavit, that the defendant, during the pendency of the action, is doing or procuring, or suffering to be done, or threatens, or is about to do, or to procure, or suffer to be done, an act, in violation of the plaintiff’s rights respecting the subject of the action, and tending to render the judgment ineffectual, &c. (§ 604).

Thus, in a case under section 603, the right to an injunction depends upon tho nature of the action, and is to appear from the complaint, while in a case under section 604 the right to an injunction is extrinsic to tho cause of action, and is to appear by affidavit.

The consequence is that, even if in all cases falling within section 603 the presentation of a complaint drawn up in due form, were necessary, the court or judge upon an application for an injunction, would have to determine whether the particular action in which the application is made, falls within section 603 or section 604, and to determine the necessity of a formal complaint accordingly. If then there be jurisdiction of the subject matter of the action, within the rule heretofore ascertained, an erroneous decision as to the necessity of a formal complaint would not deprive the court or judge of jurisdiction, in the absence of an express statutory provision declaring void all acts done under or in consequence of such erroneous decision. No such statutory provision exists. On the other hand, it should be considered that under section 416, an action is commenced by the service of a summons alone ; that under section 399 an attempt to commence an action in a court of record, is in certain cases equivalent to the commencement thereof against each defendant when the summons is delivered, with the intent that it shall be actually served, to the sheriff; that section GOT, in general terms and without limitation or qualification, prescribes that an order of injunction may be granted, where it appears to the court or judge, by the affidavit of the plaintiff, or any other person, that sufficient grounds exist therefor ; and that section 608, in express and general terms and without limitation or quahfication, provides that the order may be granted to accompany the summons, or at any time after the commencement of the action and before final judgment.

In construing these provisions together, and giving due force and effect to each and every one of them, but keeping at the same time in mind the principles which determine the question of jurisdiction over the subject matter of an action, the conclusion is inevitable that, while in a case falling within section 603, which undoubtedly applies to the case at bar, the court or judge, as a matter of orderly practice, should insist upon the presentation of a formal complaint at the time of the application for an injunction, a failure to do so on granting the injunction, though it may constitute ground for a subsequent motion to vacate, is not a jurisdictional defect which renders the injunction ipso facto void.

Section 603 was taken from the first paragraph of section 219 of the first code, which also demanded that the right to injunctive relief should be apparent from the complaint. In a number of cases which arose under that provision, the courts differed as to the necessity of a formal complaint to sustain the injunction. But while in some, such necessity was insisted on, it was held in Morgan v. Quackenbush (22 Barb. 72), and by the general term of the supreme court in Mattice v. Gifford (16 Abb. 246), that the requirement that the right to injunctive relief should appear from the complaint, was sufficiently complied with, when it was made to appear by affidavit, what the allegations of the complaint in that respect were or would be. These two cases were never overruled, and even in the cases in which the contrary was held, nothing can be found which is in direct support of the claim, that an injunction granted in the absence of a formal complaint was for that reason alone null and void because made without jurisdiction. As already shown, the Code of Civil Procedure left the question where it stood before.

Upon the whole, I am of opinion that, while Judge Truax had the power to vacate the order of injunction, for the reason that the proper practice had not been observed by the plaintiffs in the procurement of it, Judge Beach was not without jurisdiction in granting it. The order, therefore, was not null and void ab initio.

The examination so far made sufficiently establishes that in every aspect that can be taken of the case, Judge Beach had sufficient jurisdiction to grant an order of injunction in it, and that consequently the injunction he granted, was valid in law as long as it remained in force, and that the defendant had no right to disobey it. The question of propriety, arising from the fact that the learned judge referred to, made an order in an action about to be commenced in this court, without any proof before him that the judges of this court were inaccessible, does not in anywise impair his jurisdiction in the premises. And the order having been made in the exercise of jurisdiction which attached, it became by operation of law the lawful mandate of this court, just as in the case of the People v. Dwyer (90 N. Y. 402), the order of the county judge became the lawful mandate of the supreme court.

The matters thus established fully dispose of the complaint made by the defendant, that the granting of the injunction was an enormous abuse of the judicial power. But as this complaint was not only indorsed, but also seriously and warmly pressed by the learned counsel for the defendant, in a manner which aroused public attention and great public interest, some additional remarks are called for.

In this country, the security of life, liberty and property depends upon the respect which is paid by all classes to the law, and everything and everybody is in some form or other subject to the law. Municipal corporations constitute no exception. Though perhaps the action of the mayor of the city of Hew York, in the matters relating to the appointment of such officers as he has the power to appoint, is not so much the exercise of a privilege or franchise, as Judge Truax seems to have held, as the exercise of a power and duty conferred and imposed by statute, it is, nevertheless, a power and a duty of a kind which, not being of a legislative character, has at all times, on the application of a party individually aggrieved, been subject to judicial scrutiny, not for the purpose of directing it affirmatively, but to prevent abuse. This fully and clearly appears from the decisions in Davis v. Mayor, &c. (1 Duer, 451); People v. Compton (Ib. 512); People v. Sturtevant (9 N. Y. 263); People v. Dwyer (90 Ib. 402).

Even state officers constitute no exception to the rule. They may be enjoined in a proper case from the performance of their duties or from executing the provisions of a statute, and if the case is a proper one, all that the law requires is that the injunction shall be granted by the supreme court at a general term thereof and upon notice to the officer or board to be restrained (Code Civ. Pro. § 605).

Since the decisions in Davis v. Mayor, People v. Compton, and People v. Sturtevant, and with full knowledge thereof, as must be assumed, the legislature passed the so-called taxpayers’ acts hereinbefore referred to, and by them extended the right of action against municipal corporations and the officers therein specified, to a class of plaintiffs who represent no special prívate grievance, but only one which they have in common with all others belonging to or falling within the same class. This at once disposes of all the objections raised by the defendant to the standing of the plaintiffs in court. Upon an examination of these acts it will be found that since 1872, when the first of these acts was passed, the right of action itself was greatly enlarged. Originally the right of action given by the act of 1872 extended only to the prevention of waste or injury to corporate property or funds. In 1881 it was so far extended as to include the prevention of any illegal act. As the right of action was thus enlarged, the duty imposed on the courts to grant injunctions was correspondingly increased. The courts did not seek this increase of jurisdiction. They were not even consulted about it. If it is not proper that they should have it, the legislature may and ought, to take it away again. At all events, the remedy is with the legislature, and all complaints on that score should be addressed to that body.' While the' duty remains cast upon the courts to entertain such suits, and to grant injunctions therein., they are bound to obey the will of the sovereign power of the state in the premises. All they can do, is to require full and competent proof and to hold plaintiffs to strict practice. The officers of municipal corporations and all other officers covered by the acts referred to, will do well hereafter to bear these matters in mind and to regulate their official conduct accordingly.

Having shown that the order of injunction was valid, and that it should have been obeyed, it now becomes material to- inquire into its violation and the manner in which, and the circumstances under which, it was violated.

It was served with the other papers hereinbefore enumerated upon the defendant, as mayor, and upon each of the other defendants herein who were aldermen, on the 30th of December, 1884. On the same day the bond given by the plaintiffs and approved by Judge Beach was filed in the county clerk’s office. The injunction enjoined and restrained the appointment or nomination, and the confirmation of any nomination of any per son, to the office of commissioner of public works or the office of counsel to the corporation until the further order of this court to be made and entered upon a hearing to be had the next day, namely, December 31, 1884, at 11 o’clock in the forenoon of that day, at a special term of this court. At the time and place specified, the motion for the continuance of the injunction was duly argued on behalf of the plaintiffs, and opposed on behalf of the defendant Edson, as well as on behalf of certain others of the defendants, before Judge Tritax, as already stated. The defendant Edson offered no pi’oof in denial of the charges made against him. Some of the aldermen did. The arguments on the motion were concluded at 4 P. M. on the 31st of December, 1884, and the judge reserved his decision. Thereupon a little later on the same day, and before any decision had been rendered, the defendant Edson sent to the board of aider-men, then in session the following official message, viz.:

“ Mayor’s Office, |
New York, December 31, 1884. j To the Honorable, the Board of Aldermen :
“I am advised by the counsel assigned me by the Counsel to the Corporation, that the injunction served upon myself in the case of Roosevelt and others against the Mayor and Aldermen, restraining the nomination to your Honorable body, of persons to fill the vacancies now existing in the public offices of this City, is void.
“I therefore send you the accompanying communications. Franklin Edson,
Mayor.”

In the accompanying and some subsequent communications, the defendant withdrew the name of Fitz John Porter as commissioner of public works, and nominated and appointed Robin M. Squire to be commissioner of public works, and William Dorsheimer to be counsel to the corporation. The board of aldermen confirmed the nomination of Squire, and rejected the nomination of Dorsheimer.

This action was a direct violation of the order of injunction, and by such violation the object of the action and the plaintiff’s remedy herein have been wholly defeated, at least so far as the office of commissioner of public works is concerned.

The next inquiry, therefore, must be whether the defendant Edson has established any excuse, of which the law can take cognizance.

He admits that he took the action complained of, but insists that in taking it he was not actuated by any intention of violating any legal order of this court, or of any judge thereof, or of any judge having authority to make the order of injunction. This is mere legal quibbling. The order served upon him, as already shown, was legal; it was the mandate of this court, and the action taken by him was a direct violation of it.

Under these circumstances the rule must be enforced, which is elementary, and alike applicable to civil and criminal proceedings, that every man is conclusively presumed to foresee, and consequently must be held responsible for the direct and natural consequences of an act purposely done.

Pie says that vacancies existed in the office of commissioner of public works, and the office of counsel to the corporation, which, under the statute it was his duty to fill. The offices were not actually vacant. The incumbents .held over until their successors should be lawfully appointed.

It was no more his duty to fill such vacancies than it was the duty of the judge, under another statute, upon a proper application and upon proof that the action proposed to be taken by the defendant was corrupt and consequently illegal, to restrain him from filling them. Each had a duty to perform and each had rights which the other was bound to respect. Of course, a long list of cases may be cited in which the courts have said that a court will not interfere with the exercise of a discretionary power, lodged by law in a public officer, by substituting its own judgment for his, and the cases cited by the learned counsel for the defendant belong to this class. But what was thus said, was said after an actual interference to an extent, which, upon examination, satisfied the court that it ought not to interfere any further, and even then, in the majority of cases, at least, the assertion was made, that if the evidence had been strong enough to establish the necessity for further interference to prevent abuse, injustice, oppression, the violation of a trust, or the consummation. of a fraud, the court would have had the power to proceed further, and would have exercised the power. These cases simply hold that courts will not restrain the erroneous exercise of discretion lodged by law in a public officer, as long as he acts honestly, and they therefore do not apply to a corrupt and illegal exercise of discretionary power. They are all cases which occurred prior to 1881, and they do not affect the question of jurisdiction, which is decisive in the case at bar. For present purposes it is sufficient to say, that if no power whatever had ever existed in a court of equity prior to 1881, to restrain the corrupt and illegal exercise of discretionary power vested in a public officer, it was expressly conferred by the statute passed in that year.

He says that his term of office, as mayor, expired on the 31st of December, 1884, and that he could not wait until the rendition of a decision upon the motion heard on that day. From the report of the case of People v. Compton (1 Duer, 512), it appears that in that case alderman Sturtevant made a similar plea (p. 529), and that it did not avail him. Moreover, in the present case, the situation of affairs on the 30th and 31st days of December, 1884, was, in a great measure, created by the defendant himself. The vacancies occurred on December 10, 1884. By delaying decisive action until the very close of his term, the defendant had aroused public suspicion that he had other motives, than a regard for the interests of the municipality he represented.

He says that he was advised by counsel and believed that the order of injunction was null and void, and that he acted upon such advice and belief. That this is not an answer to the proceeding for contempt has been repeated!y held (Hawley v. Bennett, 4 Paige, 163 ; Rogers v. Paterson, 4 Ib. 450 ; Lansing v. Easton, 7 Ib. 364; People v. Compton, 1 Duer, 512).

Upon this point, Duer, J., in his pronouncing the judgment of the court in the case last referred to, said: “While upon this subject, we deem it necessary to observe that the advice of counsel, when stated in general terms, as it here is, will never' be accepted by this court, as excusing or palliating a contempt, which is otherwise manifest or proved. The advice, when thus stated, will never be permitted to affect our decision. To enable us to regard it at all, the names of the counsel must be given, and the information that was laid before them, and the exact import of their advice must be fully stated. If the advice was written, the writing must be produced; if oral, the fact that it was given, and its precise import, must be verified by the affidavits of the counsel who gave it. The propriety of these rules and the necessity of adhering to them, will be doubted by none who have any knowledge of the difficulties that beset a court in the due administration of justice, and of the means too frequently employed, by a suppression of truth, to evade .its authority.”

And as to the belief of a party proceeded against, the learned judge referred to, said :

“He who resists the order or process of a court of justice, trusting to his own belief of its want of jurisdiction, acts, in all cases, at his own peril, and when he is proved to be mistaken, is, in all cases, justly punished. And I add, that it is upon this principle alone, that the supremacy of the law and the just authority of courts of justice can be maintained.”

The defendant now here advances the excuse, that he acted under advice of counsel in general terms only. The precise import of the advice, and the grounds upon which it was given, are not clearly set forth. It does not appear whether the advice was in writing or oral, and neither writing nor affidavit by counsel has been submitted. Under these circumstances, the case is fully controlled by the authorities cited. The most I can do, is to consider the fact that the advice was given as claimed and believed, as an extenuating circumstance to be considered in meting out punishment.

The defendant, by way of excuse, reiterates the fact that the injunction was subsequently vacated by Judge Truax. From what I said in the beginning, as to the effect of this decision upon the present motion, it sufficiently appears that the claim cannot be accepted as a valid excuse for a deliberate violation of the injunction while it was alive, and mere repetition would answer no useful purpose.

And, finally, the defendant in his affidavit says, that in bringing the action, the plaintiffs were actuated by improper motives, and, in this connection, he denies what, on the hearing before Judge Trttax, he omitted to deny, viz., the truth of all the charges of corruption and illegality made against him in the affidavits on which the injunction was granted. He thus seeks, at this late day, to raise an issue as to the real merits of the action. That this cannot be done, I think I so clearly demonstrated, both upon principle and authority, in the course of my discussion of the question of jurisdiction, that no further remarks are necessary.

The result is that none of the excuses that have been advanced and considered, have any force or validity in law.

Before proceeding to a final adjudication, however, it .becomes necessary to pause for a moment, - to notice the distinction between criminal contempts and proceedings as for contempt in civil cases, and to consider what remains to be done.

The revised statutes made, and the Code of Civil Procedure preserved, such distinction. In the People v. Dwyer (90 N. Y. 402), Finch, J., says, upon this point:

As it respects disobedience to the orders of a court, the sole difference appears to be that a willful disobedience is a criminal contempt, while a mere disobedience by which the right of a party to an action is defeated or hindered, is treated otherwise.”

A very thorough and elaborate discussion of the same question, as it stood under the revised statutes, may be found in the People v. Compton (1 Duer, 512).

Proceedings for contempt are now regulated by the Code of Civil Procedure. In addition to the distinction already pointed out, a further distinction is as follows : In a proceeding as for contempt of court, other than a criminal contempt, if an actual loss or injury has been produced to a party by reason of the misconduct of the offender, a fine sufficient to indemnify the aggrieved party must be imposed upon the offender, but where no actual loss or injury has been shown, the fine which may be imposed must not exceed the amount of the complainant’s costs and expenses and $250 in addition thereto (§ 2284). In a proceeding to punish for a criminal contempt, the punishment may be by fine not exceeding $250, or by imprisonment not exceeding 30 days in the county jail, or both, in the discretion of the court (§ 9).

In the case .at bar, the plaintiffs do not claim that they sustained any actual loss or injury. Their motion is that the defendant be punished for a criminal contempt under subdivision 3 of section 8, which makes a willful disobedience to its lawful mandate ” a contempt of court.

Upon such a proceeding, the party charged must be notified of the accusation and have a reasonable time to make a defense (§ 10). To bring him before the court, one of two methods of proceeding must be adopted, viz : he must be brought in either by and under an attachment to answer for the alleged contempt, in which case interrogatories must be filed to be answered by him, or by an order duly served upon him, requiring him to show cause why he should not be punished for the alleged offense, in which case the question is determined upon affidavits (§ 2269).

The defendant now here was* personally served with the order requiring him to show cause why he should not be punished for the violation of the injunction, and with the affidavits and other papers upon which the said order was made. He appeared, submitted his proofs, and was heard in opposition. Under these circumstances it is not necessary that he should be brought once more into court on an attachment, and that interrogatories should be administered to him prior to a final adjudication upon the contempt charged against him (Mayor, &c. v. N. Y. & Staten Island Ferry Co., 64 N. Y. 622).

Having arrived at this point, the case is now ripe for a final adjudication.

The defendant deliberately chose to place himself towards this court, in a relation of direct and open hostility. Admitting the service of the order of injunction upon himself, which upon its face showed that it was granted in an action brought in this court, and correctly construing it as commanding him to desist from filling the vacancies in the two offices referred to, he chose to treat it as an illegal assumption of judicial authority, and therefore he proclaimed, in an official message to the board of aldermen, that it was void. All this was done in the face of an express provision of law that the jurisdiction of this court, in an action or a special proceeding brought therein, must always be presumed (Code Civ. Proc. § 266). He thus publicly raised an issue with this court, which this court is compelled to meet and to determine. For obvious reasons it would be desirable, were it possible, that such issue should be determined by some other tribunal. But as no such transfer can be made of the jurisdiction of this court, I have no right to shrink from the performance of the duty which the law casts upon me.

None of the excuses advanced by the defendant having any force or validity in law, and all his objections, both of form and substance, having been found untenable, and nothing appearing which could furnish a respectable apology for the omission of the court, to take such notice of the defendant’s misconduct as is due to the interests of the public and to a proper administration of justice, the defendant, for the reasons hereinbefore stated, must be ádjudged to have been guilty of a willful disobedience to a lawful mandate of this court, in deliberately violating the order of injunction served upon him, and consequently guilty of a criminal contempt of this court.

And now it becomes my painful duty to decide what the punishment shall be. In the performance of that duty I deem it fit and proper to recall to mind, from the sterling remarks made by Judge Duer in the Compton case, the following sentence, viz. :

Our country is -great, flourishing and prosperous, because the people has at all times, in the exercise of its own sovereignty, been accustomed, and has rejoiced to confess, the sovereignty of the law, as limiting and controlling its own. It is so, because we long have been, still are, and I trust will ever remain, a law-reverencing, law-obeying and law-abiding people. But it is manifest that this deep reverence for the law, this prompt and cheerful submission to its dictates, this fixed resolve to abide its determinations, by which, as a nation, we have hitherto been distinguished, are inseparably connected with the confidence which is reposed in those by whom the law is administered, and can, in reality, subsist no longer, than while that confidence is felt and maintained. Hence, none are more dangerous enemies to our country and its institutions, by whatever pretext they may seek to veil their conduct, than those who seek to destroy or impair this necessary confidence, by rash denunciation, groundless imputations, open disrespect, and public disobedience. The inevitable tendency of such proceedings is to weaken and unsettle our government in its very foundations, and in every branch of its administration. They strike at the root of our national prosperity, and poison and corrupt the fountain from which all our blessings flow—the supremacy of the law manifested and sustained by the ready submission of all to its dictates and authority.”

The evil example thus referred to, is, as was said by Judge Bosworth in the same case, still more pernicious in its tendency when set by a man invested with authority, who, by virtue of his office, is a conservator of the public peace.

The defendant, as mayor, was the chief executive officer of the corporation of the city of New York. He was elected to that high office by the votes of a majority of the electors of this great city. He, above all others, should have set an example of devotion and submission to the supremacy of the law as administered by the tribunals created by the sovereign power of the state for that purpose. Occupying such a high position, his willful and public disobedience to the positive mandate of a court of general jurisdiction, is an act of far-reaching consequences. Under these circumstances, and inasmuch as neither the sentence by this court, in the Compton case of Alderman Sturtevant, to imprisonment for fifteen days and the payment of a fine of $250 into the city treasury, and of a further fine of $102.07 to the relators, for their costs and expenses, nor the sentence by the supreme court in the Dwyer case of each of the seventeen aldermen to imprisonment for thirty days and the payment of a fine of $250, deterred the defendant from defying the authority of this court, the case demands the Infliction of the highest punishment authorized by law, unless mitigating circumstances can be found that can properly be considered.

Upon this point I have, after due deliberation, come to the conclusion that some of the matters urged as an excuse, but rejected as insufficient in law for that purpose, ought to be accepted in mitigation. The fact cannot be denied that the order of injunction was granted under circumstances which made it difficult to ascertain whether there was or was not jurisdiction, and, being advised by-counsel that the order was void, the defendant may well have believed it. Moreover, the practice of the plaintiffs themselves in obtaining the injunction, was so faulty and irregular as to lend color to the theory that the order was invalid. Upon the whole, I am charitable enough to think, that the defendant actually believed that the order was void.

But after giving to the defendant, the „ fullest benefit of every extenuating consideration that can be presented, the case still remains one which calls for substantial punishment.

I therefore direct that for the willful disobedience and the contempt of which the defendant stands adjudged guilty, he be imprisoned in the county jail for the period of fifteen days, and that, in addition thereto, he pay a fine of two hundred and fifty dollars.

And I further direct, that the order to be entered and the commitment to be issued, be presented for settlement on a notice of two days, to the attorneys of the defendant.  