State ex rel. New Orleans Water-works Co. v. Levy

The opinion of the Court was delivered by Fenner, J. In the suit of Isaac Levy vs. New Orleans Water-works Company, upon petition, affidavit and bond, and in exact conformity with the prayer of said petition, on October 17, 1883, the civil district court issued a writ of injunction addressed to the New Orleans Waterworks Company, in these words: “You are hereby enjoined and prohibited from ceasing to supply the plaintiff, Isaac Levy, with water sufficient for their business as rice millers, and from cutting off the water supply of plaintiff, Isaac Levy, and from in any manner interfering with the use by plaintiff, Isaac Levy, for the purposes of rice milling, of the water conveyed through the pipes of the New Orleans Water-works Company; and you are so to remain enjoined and prohibited until further orders of this court.” Although the last phrase was not expressly included iu the order of the judge, it is implied in every preliminary injunction; and the clerk, in including it in the writ as issued by him doubtless followed uniform precedents, as embodied in the printed forms for such writs. The injunction was respected until the 5th day of October, 1884, when the Water-works Company cut off Levy’s supply of water. Thereupon, Levy took a rule for contempt against the company and its superintendent, Gardner, for their violation of the above injunction. After due, bearing and upon proceedings in all respects regular, the respondent judge made the rule for contempt absolute and punished Gardner by a fine of one dollar; further ordering the defendants to restore all matters subject of this controversy in the position in which they were previous to October 7, 1883, and to pay all costs of the contempt proceeding. [943] The matter before us is an application for writs of prohibition and certiorari, under which we are asked to declare the judgment upon the rule for contempt to be “null, void and of no effect, and in excess of the jurisdiction of the said civil district court." So far as the writ of prohibition is concerned, there can bo no dispute that the lower court had complete jurisdiction over the case and that it was clothed with all necessary power to enjoin Lite acts complained of. Hence, the writ of prohibition cannot apply. State ex rel. Follett, vs. Rightor, 32 Ann. 1182; State ex rel. Behan vs. Judges, 35 Ann. 1075. It is urged, however, that the invalidity and nullity of the judgment for contempt should be i>ronounced under the certiorari, on two grounds: 1. That the court had issued no injunction enforcing the right of Levy to a water supply beyond the current fiscal year of the Waterworks Company, which expired on October 1,1884; that the court was powerless, under the pleadings, to issue an injunction covering any further period; and that, therefore, the court had no right or power to punish them for disobedience of an injunction which had no existence in fact and in law. 2. That, under the provisions of our Code of Practice, the power of the court to punish breach of its injunction did not include the power to inflict a fine. I. That the coirrt did, in point of fact, issue its peremptory injunction forbidding the cutting off of Levy’s water, without any limitation as to time, except “until the further orders of this-court,” is apparent from the face of the injunction. That no such “further orders” had been given, is not disputed. That the injunction corresponds to the prayer of Levy’s petition and is, therefore, not ultra petitium, appears from simple inspection of the record. That it was within the power of the court to issue such an injunction, at least upon allegations supporting such relief, cannot be controverted. The sole contention is that the allegations of Levy’s petition did not sustain or justify the broad injunction asked and granted. Nevertheless, such an injunction was prayed for; and the question whether or not it should be granted was one of which judicial determination was appropriate and essential. In determining this question, the judge did only what he was bound to do; and error therein, if any exist, raises an issue only of mistake in judgment, certainly none of lack of power. State ex rel. Marrero vs. Judge, 35 Ann. 214; State ex rel. Berthoud vs. Judge, 34 Ann. 782; State ex rel. Ins. Co. vs. Judge, 36 Ann. 316. [944] We may say, however, in justice to the district judge, that a careful study of the petition for injunction does not disclose any such gross discrepancy between the allegations and the prayer as is asserted by relator’s counsel. The controversy in the suit affected the rate of charge for water supply hot only for the current, but for all succeeding • years; and the judge might well have regarded the injunction restraining the cutting off of the water until settlement of the controversy as not unreasonable. Arguments based upon extravagant hypotheses of utterly irrelevant injunctions having no relation to the subject-matter of the pleadings, are fallacious in themselves and without application in this case. We have here no question of an injunction in its inherent nature beyond the scope of judicial power, as in the Liversy case, 34 Ann. 741. Nor is the order of a character not legally enforceable by process for contempt, as in the Hero case, 36 Ann. 352. Therefore, those cases have no application whatever. We are not disposed to extend our interference in the delicate matter of the power of courts to maintain their own authority, beyond the limits of strict necessity. Our rulings have been uniform that we wmuld not, unless in extraordinary cases, use our supervisory jurisdiction as a substitute for appellate powers. 34 Ann. 782; 35 Ann. 838; 32 Ann. 552; 36 Ann. 316; 35 Ann. 214. Nothing in this case recommends it for the exercise of such exceptional power. The injunction disobeyed was perfectly peremptory and unambiguous. It was merely interlocutory and was, by its terms and nature, subject to amendment or modification by “further orders of the court.” If relators thought that the judge had fallen into error in extending the injunction beyond what was justified by the allegations of the petition, their proper course was clear, viz: to apply to the court for such “further orders” as they deemed appropriate. They had no right to take the law into their own hands and violate the injunction under a construction which, in whatever good faith it was adopted on their part, is certainly in the teeth of its plain and unambiguous terms, and is opposed to that placed by the judge himself on his own order. II. We cannot construe Art. 308 of the Code of Practice as taking away from judges the power to punish disobedience of injunctions by fine as well as imprisonment. [945] Article 131 had conferred this power in broad terms, saying: “The judges of the Supreme, district and parish courts have the power to punish all contempts of their authority by fine not exceeding fifty dollars and imprisonment for a period not exceeding ten days, for each offense of that kind.” The special provisions of Art. 308, in no manner, conflict with or restrict the power to fine in case of contempt of injunctions. It merely, in that special case, enlarges and extends the power of imprisonment by providing that “they may punish him by imprisonment not exceeding ten days, but which may be repeatedly inflicted until the pa/rty obeys the mandate of the court.” The object was not to restrain powers previously possessed, but to enlarge the power of imprisonment by giving express sanction to the repetition of the term as often as required to secure obedience. The two articles stand together without conflict; and, under elementary principles, no repeal of the former’ can be implied. It is, therefore, ordered that the preliminary restraining order granted herein be now annulled and that the application for writs of prohibition and eertiorae'i be denied.