1885. WELLS V. WILKINS, EUREKA ETC. Co. v. SUFERIOR CT. OF YUBA Co. 393, 394; 410-418 Indication from them to the public that their James H. McKenney, Clerk, Sup. Court, U. S. Mr. Chief Justice Waite delivered the opin- [393] ion of the court: There is nothing in this record from which it can fairly be inferred that the value of the matter in dispute exceeds $5,000. The suit was GEORGE S. WELLS, ET AL., Piffs. in Err., ejectment, begun in a state court and removed v. JOSEPH WILKINS, Sheriff, etc. Also five other similar actions against same defendant in error. (See S. C. Reporter's ed. 393, 394.) Jurisdiction-practice. Where it appears only upon examination of affidavits and counter affidavits, filed by the respective parties, that the value of the property in dispute is less than $5,000 the writ of error will be dismissed. [Nos. 657-662.] Submitted Jan. 4, 1886. Decided Jan. 11, 1886. IN to the Circuit Court of the United States, for a limit. As it rests on the plaintiffs in error to show our James H. McKenney, Clerk, Sup. Ct. U.S. EUREKA LAKE AND YUBA CANAL SAID COURT. V. These are suits in ejectment, each for a sep- The writs of error are, consequently, all dismissed for want of jurisdiction. True copy. Test: (See S. C. Reporter's ed. 410-418.) 1. Where, upon a writ of error to a state court, a below. 2. Under the practice authorized by the Code of James H. McKenney, Clerk, Sup. Ct. U. S. California, where an agent of a foreign corpora tion, which is charged with contempt in disobeying Submitted Dec. 21, 1885. Decided Jan. 18, 1886. IN ERROR to the Supreme Court of the State of On motion to dismiss, with which is united a motion to affirm. The history and facts of the case appear in the opinion of the court. Mr. A. L. Rhodes, for defendants in error, in support of motions: The statute, not the corporation, directs that service shall be made upon some person designated by the corporation. The statute may, with equal validity, declare that service may be made upon the attorney of the corporation. Pennoyer v. Neff, 95 U. S. 714 (Bk. 24. L. ed. 565). That service of the order to show cause may [410] be made upon the attorney, see Golden Gate | life, liberty or property without an opportunietc. Co. v. Superior Court, 65 Cal. 187, 2 W. C. ty to be heard in defense of his rights. Rep. 737; Pitt v. Davidson, 37 N. Y. 239; Al- Stuart v. Palmer, 74 N. Y. 190. bany Cy. Bank v. Schemmerhorn, 9 Paige, 372. Mr. W. W. Cope, for plaintiff in error, contra: Due process of law is not confined to judicial proceedings, but extends to every case which may deprive a citizen of life, liberty or proper ty, whether the proceeding be judicial, administrative or executive in its nature. Weimar v. Brueinburg, 30 Mich. 201; Stuart v. Palmer, 74 N. Y. 190. The court will hardly consider the question 1. The Supreme Court of California necessarily decided that service upon the attorney of the Corporation was sufficient to give the court jurisdiction. Such service was not due process of law within the meaning of the Constitution of the United States, but was an attempt to de-a frivolous one; and there being no color of prive the Corporation of its property, in violation of the prohibition of section 1 of the Fourteenth Amendment to the Constitution. This being so this court has jurisdiction under section 709 R. S. The Supreme Court of California, in the case on which its decision in this case is based, Golden Gate Consolidated Hydr. Mining Co. v. Superior Court, 65 Cal. 187, holding that service upon the attorney is sufficient to give the court jurisdiction to punish for a contempt, says: The defendant in the action had intrusted its attorneys with the protection of its interests and the defense of its rights. We can see no abuse of authority on the part of the court in directing that the order to show cause should be served on an attorney, since it was made to appear that the defendant, by reason of its own acts, could not be served personally. The process was suitable, and the mode adopted by the court conformable to the spirit of the Code." Golden Gate Consolidated Hydr. M. Co. v. Superior Court, 65 Cal. 187-192. > This is unquestionably in violation on the Fourteenth Amendment to the Constitution. The authority of the attorneys of the Company only extended to the civil case and not to any criminal or quasi criminal proceedings that might arise out of it. New Orleans v. Steamship Co. 20 Wall. 392 (87 U. S. bk. 22, L. ed. 357); Baltimore etc. R. R. Co. v. Wheeling, 13 Gratt. 57; Pitt v. Davison, 37 Barb. 109, 110; Wells, Jurisdiction of Courts, § 193. The offenses for which judgment was rendered in the cases now before the court were, in their nature, criminal contempts, as defined by the authorities. Rapalje, Contempts, §. 21, citing, Ex parte Edwards, 11 Fla. 184; Matter of Watson, 3 Lans. (N. Y.) 408; People v. Cowles, 4 Keyes (N. Y.) 46; Hawley v. Bennett, 4 Paige, Ch. 163; People v. Spaulding, 10 Paige, Ch. 284; Philipps v. Welch, 11 Nev. 187. In a proceeding to punish for a criminal contempt in violating the injunction, the Superior Court of Yuba County could only obtain jurisdiction of the plaintiff in error by service of the order to sow cause, upon some one of its agents or officers. The attorney in the original action is not such agent or officer. His au thority extends only to the conduct of the proceedings in the civil case; and he in no respect represents the contemner in the criminal proceeding, which is, as we have seen, wholly different and distinct from the other. It is a rule founded on the first principles of natural justice, older than written constitutions, that a citizen shall not be deprived of his right to a dismissal, the motion to affirm must be denied, under the rule laid down in Whitney v. Cook, 99 U. S. 607 (Bk. 25, L. ed. 446). Mr. Chief Justice Waite delivered the opin ion of the court: [4] The record in this case shows that the Eureka Lake and Yuba Canal Company (Consoli dated) is a New York corporation doing business in California; and that in or about the month of March, 1880, the Company filed in the office of the Secretary of State of California an instrument designating and appointing "David Cahn, of 205 Sansome Street, in the City of San Francisco, *** as the person upon whom process issued by authority of or under any law of the State of California may be served, and all process served upon said David Cahn will be valid and binding upon said Corporation." This was done in compliance with an Act of the Legislature of California, entitled "An Act in Relation to Foreign Corporations," approved April 1, 1872. On the 3d of October, 1882, the County of Yuba brought suit against the Corporation in the Superior Court of that County to enjoin the Corporation from depositing or suffering to flow into the channel or bed of the Yuba River, or any of its tributaries, "the tailings from its hydraulic mines, or the earth, sand, clay, sediment, stones or other material discharged from its said mines;" and from selling to others any water to be used in hydrau lic mining. Immediately upon the bringing of the suit an ex parte restraining order was entered by the court in accordance with the prayer of the complaint. Process in the suit and a copy of the restraining order were served on Cahn November 9, 1882. On the 5th of De cember a motion was made to set aside this service. This motion was denied December 23, and on the 17th of January the Corporation, by James K. Byrne and W. C. Belcher, its attor [41 neys. filed a demurrer to the complaint. On the 20th of January an order was entered requiring the Corporation to show cause, February 2, why it should not be punished for a contempt of court in disobeying the injunction. Service of this order was directed to be made on Bigelow, the managing agent of the Company, or on Cahn, the designated agent for the service of process This service was not made, on account of the absence of Cahn in the City of New York, where the Company had its principal place of business. Thereupon, the time for showing cause was changed to March 24, and service of an order to this effect was made on Cahn March 5. After this service the Corporation appeared by its attorneys and moved to set aside the order to show cause, on the ground, among others, that Cahn was not on the the 5th of March, and had not been for more | Constitution of the United States; yet that sterwise, to show cause show cause why he should not be adjudged guilty of contempt, the court is not powerless to proceed or to prevent the continued disregard of its lawful order," but may order, as justice shall require, after due service of an order to show cause, on the attorneys of the party proceeded against. In Golden Gate Consolidated Hydr. M. Co. v. Superior Ct. 65 Cal. 192, the supreme court said: "The defendant in the action (a corporation) had intrusted its attorneys with the protection of its interests and the defense of its rights. We can see no abuse of authority on the part of the court in directing that the order to show cause should be served on an attorney, since it is made to appear that the defendant by reason of his own acts could not be served personally. The process was suitable,' and the mode adopted by the court conformable to the Code." The good sense of this rule is manifest. A corporation can only be served with process through some officer or agent. It is certainly competent for a State to determine who this officer or agent shall be, or how he shall be designated by the corporation. In California a foreign corporation is required to make such a designation, Led in the Supreme Court of the State a Secretary of State. After this suit was begun in the 26th of July, 1883, the Corporation instrument of designation in the office of the and to give public notice thereof by filing the pen for review, on the ground that "In en- this agency was changed by this Corporation, re: sud order of injunction, and in assuming and the person designated, instead of being eer to adjudge the petitioner guilty of located at San Francisco where he could be pt for its alleged violation of said order, easily found, was at the mines. This change Superior Court of said County of Yuba, was made after the service of the injunction the said Judge thereof, exceeded the juris- on the former agent, and after the court had Superior Court were affirmed; and to re- to bring the Corporation into court. It was Nippon this petition the orders determined that service upon him was sufficient et judgment this writ of error was also made after the corporation had been guilty, dedant therefor." were ent [417] as was alleged, of a violation of the injunction, record that the orders of the Superior order to show cause on Cahn, the old agent. e not appear affirmatively on the face and after an attempt had been made to serve an mend that in the absence of personal difficult of access, and even there he kept hime objected to in the supreme court on The new agent was to be found only at a place y of the order to show cause on some of- self concealed from the officer who had been or authorized agent of the Corporation, charged with the duty of making the service. ✔ent in the contempt proceeding was As he was the only person in the State on whom at que process of law and therefore con process could be served, his concealment to the Fourteenth Amendment of the avoid service was in law the concealment of 418] [394] the Corporation itself, and the court was left 2. Under the law and regulations, although a first assistant engineer becomes eligible to examination By section 1209 of the Code of Civil Proced- sea, he is not entitled to examination until his turn and promotion when he has served two years at ure of California "disobedience of any law-for promotion has arrived, or nearly so. ful judgment, order, or process of the court" is declared to be a contempt of the authority of the court. As was said by this court in Re Chiles, 22 Wall, 168 [89 U. Š. bk. 22, L. ed. 822], the exercise of the power to punish for contempt "has a twofold aspect, namely: first, the proper punishment of the guilty party for his disrespect to the court or its order; and second, to compel his performance of some act or duty required of him by the court, which he refuses to perform." This being the case, to deny the court the power of calling on a concealed corporation through its chosen attorney of record in a suit to appear and answer to a charge of contempt for disobeying the orders of the court duly entered in that suit, would be to deny it the power of vindicating its authority and enforcing obedience to its lawful commands against a party personally subjected to its jurisdiction. Although the proceeding may be criminal in its nature, it grows out of the suit to which the person proceeded against is a party and actually represented by an attorney. Ordinarily a corporation has, in such a case, a right to service of an order to show cause upon some officer or agent, but if its officers or agents keep themselves out of the way for the express purpose of avoiding such a service, it cannot justly complain if service on its attorney is made the equivalent of that which its agents by their wrongful acts have made impossible. The same principle applies here that governed this court in Reynolds v. U. S. 98 U. S. 158 [Bk. 25, L. ed. 247], where it was held that although the Constitution gives an accused person the right to a trial at which he shall be confronted with the witnesses against him, yet, if a witness was absent by his own wrongful procurement, he could not complain if competent evidence was admitted to supply the place of that which he kept away. It was said the Constitution "grants him the privilege of being confronted with the witnesses against him; but if he voluntarily keeps the witnesses away he cannot insist on his privilege." So here the Corporation was perhaps entitled to service on its officers or agents; but as this was prevented by their wrongful acts, the privilege cannot be insisted upon. [No. 869.] Submitted Jan. 4, 1886. Decided Jan. 18, 1886. APPEAL from the Court of Claims. Statement by Mr. Justice Woods: George P. Hunt, the appellant, a chief en gineer in the navy, brought this suit in the court of claims to recover a balance of pay due him, as he alleged, from the United States. The facts were as follows: on October 25, 1868, the appellant was a first assistant engineer in the United States Navy, and had served in that grade two years at sea on board a naval steamer. At the date mentioned there was no vacancy in the grade of chief engineer to which the appellant could be promoted; nor did any such vacancy occur until July 4, 1880. On October 11, 1880, he was ordered to report for examination for promotion to the grade of chief engineer, and upon examination was found qualified, and on December 29, 1880, was promoted to the grade of chief engineer and received the pay of that grade from July 4, 1880. From October 25, 1868, to July 4, 1880, the appellant received the pay and emoluments of a first assistant engineer only. He claimed that for the period between the two dates just named he was entitled to the pay of chief engineer, and brought his suit to recover for that period the difference between the pay and emoluments of a first assistant engineer and of a chief engineer. The court of claims dismissed his petition, and he appealed. Mr. Charles F. Benjamin, for appellant. Mr. John Goode, Solicitor-Gen., for appellee. Mr. Justice Woods delivered the opinion of the court: It appears from the findings of the court of claims that from October 25, 1868, to July 4, 1880, there was no vacancy in the grade of chief engineer to which the appellant could have been promoted even had he been examined and found qualified. His position in this suit is, therefore, that he is entitled to the pay of an office for a period during which he did not hold and was not entitled to hold it, and did not perform its duties. He insists that as soon as he had performed two years' service at sea he had a right to be examined for promoJames H. McKenney, Clerk, Sup. Court, U. S. tion; and when examined and promoted nearly The motion to dismiss is denied, but that to eleven years afterwards, was entitled to the pay of the grade to which he was promoted from the time when his two years' service at sea was completed. The law to support such a claim should be clear. If the appellant is entitled to any of the increased pay claimed, the time for which it should be computed is cut short by the Act of follows: "That on and after the passage of this June 22, 1874, the first section of which is as Act any officer of the navy who may be promoted in course to fill a vacancy in the next higher grade, shall be entitled to the pay of the grade to which promoted from the date he takes rank therein, if it be subsequent to the vacancy he is appointed to fill." This section The claim of the appellant to the increased pay is based on section 16 of the Act of July 16, 1862, entitled "An Act to Establish and Equalize the Grade of Line Officers of the Cited States Navy," (chap. 183, 12 Stat. at L. 6) which provides: That whenever any of ficer of the navy of a class subject by law or regulation to examination before promotion to a higher grade shall have been absent on duty at the time when he should have been examinel, and shall have been found qualified at a absequent examination, the increased rate of pay to which he may be entitled shall be alwed to him from the date when he would tave received it had he been found qualified at the time his examination should have taken place." The Navy Regulations in force in 1867 pro- Candidates for promotion to the grade of chief engineer must have served at bast two years at sea as first assistant engineers on board a naval steamer." It is clear, upon the face of this statute and regulation, that the appellant has not maintained his suit. He does not aver in his petition, And it is not found by the court of claims, "that he was absent on duty at the time when he should have been examined." Neither does it appear that at any time after the expiration of Under the law and the regulations a first assistant engineer became eligible to examination for promotion when he had served two years at sea upon a naval steamer. But he was merely eligible. He was not entitled to be examined until his turn for promotion had arrived, or was near at hand. In no event, therefore, could he demand that the increased pay of his new grade should begin until he had a right to be examined for promotion. It appears that under a misconstruction of the law a practice grew up in the navy department by which promoted officers were allowed the pay of their new grade from the time when they were eligible for examination. But this was corrected by the Secretary of the Navy in 1877, who recommended that the increased pay of a promoted officer should be allowed only from the time when a vacancy occurred to which he could have been promoted if an opportunity for examination had been given him. In our opinion this recommendation was based on a correct construction of the statute. We see no reason why a practice unwarranted either by law or the regulations of the navy, and which had been discontinued for eight years, should be revived and given effect in this case. Judgment affirmed. James H. McKenney, Clerk, Sup. Court, U. 8. (See S. C. Reporter's, ed. 398-401.) 847 and 828 R. S. two years' service at sea, on October 25, Fees of commissioner of circuit court sections down to the time of his examination on October 11, 1880, he was absent on duty. Even, therefore, upon his own construction of the atile, he does not bring himself within its terms as one entitled to the pay which he sues to recover. Under section 847 R. S., a commissioner of a cir cuit court, when required to keep a docket of war- [No. 988.] Submitted Jan. 4, 1886. Decided Jan. 18, 1886. A PPEAL from the Court of Claims. But we are of opinion that it is an unwar- I. The claimant, John H. Wallace, was a II. October 4, 1881, the Circuit Court of the We think the law was properly construed by Mr. | 114 C. S. the warrant was delivered for service, together [398] [398] [398] |