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LENNON.

decided: April 19, 1897.

IN RE LENNON.


CERTIORARI TO THE CIRCUIT COURT OF APPEALS FOR THE SIXTH CIRCUIT.

Author: Brown

[ 166 U.S. Page 552]

 MR. JUSTICE BROWN, after stating the case, delivered the opinion of the court.

The only question which can properly be raised upon this writ is whether the Circuit Court exceeded its jurisdiction in holding the petitioner for a contempt and in imposing upon him a fine therefor. We are not at liberty to consider the testimony, or to inquire whether the facts, as they appeared upon the hearing, justified the action of the Circuit Court. It is only upon the theory that the proceedings and judgment of the court were nullities that we are authorized to reverse its action. It has been too frequently decided, to be now open to question, that a writ of habeas corpus cannot be made use of to perform the functions of a writ of error or an appeal. Ex parte Kearney, 7 Wheat. 38, 43; Ex parte Terry, 128 U.S. 229; Ex parte Cuddy, 131 U.S. 280; Nielsen, Petitioner, 131 U.S. 176; Ex parte Tyler, 149 U.S. 164, 167; United States v. Pridgeon, 153 U.S. 48.

Acting upon this theory, the petitioner claims that the Circuit Court exceeded its jurisdiction in adjudging him guilty of contempt, for the reason that it had no jurisdiction of the original bill, because one of the defendants to such bill was a citizen of the same State with the complainant; because petitioner was not a party to the suit and was never served with a subpoena or the injunction; and, finally, because it was beyond the jurisdiction of a court of equity to compel the performance of a personal contract for service.

1. The original bill averred the complainant -- the Toledo, Ann Arbor and North Michigan Railway Company -- to be a corporation and citizen of the State of Michigan, and the several railway companies defendant to be citizens either of Pennsylvania or Ohio; and there is nothing in the record of

[ 166 U.S. Page 553]

     that case to show that this averment was not true. It only appears to be otherwise by an allegation in the petition for the habeas corpus; and the question at once arises whether, where the requisite citizenship appears upon the face of the bill, the jurisdiction of the court can be attacked by evidence dehors the record in a collateral proceeding by one who was not a party to the bill. We know of no authority for such action. The general rule is that parties to collateral proceedings are bound by the jurisdictional averments in the record, and will not be permitted to dispute them except so far as they may have contained a false recital with respect to such parties. Doubtless the averments with regard to citizenship might have been directly attacked by any one who was a party to that suit. But this cannot be done upon habeas corpus. Michaels v. Post, 21 Wall. 398; Hudson v. Guestier, 6 Cranch, 281; McCormick v. Sullivant, 10 Wheat. 192, 199; Thompson v. Tolmie, 2 Pet. 157; Ex parte Watkins, 3 Pet. 193; Grignon's Lessee v. Astor, 2 How. 319; United States v. Arredondo, 6 Pet. 691, 709; Florentine v. Barton, 2 Wall. 210; Comstock v. Crawford, 3 Wall. 396; Dyckman v. New York, 5 N.Y. 434; Jackson v. Crawford, 12 Wend. 533; Betts v. Bagley, 12 Pick. 572; Fisher v. Bassett, 9 Leigh, 119, 131; Dowell v. Applegate, 152 U.S. 327.

Irrespective of this, however, we think the bill exhibited a case arising under the Constitution and laws of the United States, as it appears to have been brought solely to enforce a compliance with the provisions of the Interstate Commerce Act of 1887, and to compel the defendants to comply with such act, by offering proper and reasonable facilities for the interchange of traffic with complainant, and enjoining them from refusing to receive from complainant, for transportation over their lines, any cars which might be tendered them. It has been frequently held by this court that a case arises under the Constitution and laws of the United States, whenever the party plaintiff sets up a right to which he is entitled under such laws, which the parties defendant deny to him, and the correct decision of the case depends upon the construction of such laws. As was said in Tennessee v. Davis, 100 U.S. 257, 264:

[ 166 U.S. Page 554]

     "Cases arising under the laws of the United States are such as grow out of the legislation of Congress, whether they constitute the right or privilege, or claim or protection, or defence of the party, in whole or in part, by whom they are asserted." See also Starin v. New York, 115 U.S. 248, 257; Kansas Pacific Railroad v. Atchison, Topeka &c. Railroad, 112 U.S. 414; Ames v. Kansas, 111 U.S. 449, 462; Railroad Co. v. Mississippi, 102 U.S. 135.

2. The facts that petitioner was not a party to such suit, nor served with process of subpoena, nor had notice of the application made by the complainant for the mandatory injunction, nor was served by the officers of the court with such injunction, are immaterial, so long as it was made to appear that he had notice of the issuing of an injunction by the court. To render a person amenable to an injunction it is neither necessary that he should have been a party to the suit in which the injunction was issued, nor to have been actually served with a copy of it, so long as he appears to have had actual notice. High on Injunctions, ยง 1444; Mead v. Norris, 21 Wisconsin, 310; Wellesley v. Mornington, 11 Beav. 181.

Conceding the question whether he had such notice in this case to be open to review here, we are of opinion that upon the facts appearing in this record this question must be answered, as it was answered in the court below, in the affirmative. The testimony upon this point is fully set forth in the opinion of the Circuit Court, 54 Fed. Rep. 746, 757, and it establishes beyond all controversy that Lennon had notice and knowledge of the injunction.

It appears that, immediately after the injunction order was granted and served upon the Lake Shore Company, the company had copies of the order printed, and attached thereto a notice, signed by its superintendent, calling the attention of employes to the injunction; that printed copies of the injunction and notice were posted on all the bulletin boards at roundhouses where engineers took their engines, and that it was the duty of engineers to examine all notices so ...


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