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
own Omaha claim was at all interfered with.
It was too late afterwards to raise the objection.
Judgment affirmed.
True copy. Test:

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
ERROR to the Circuit Court of the United
States for the Northern District of Florida.
Mr. J. D. Thompson, for plaintiffs in er-

to the Circuit Court of the United States, for a
lot in Pensacola and the profits thereof since
January 1, 1880, of the yearly value of $500.
The value of the lot is not stated in any of the
pleadings, but in the petition for the removal
of the suit it is put at "more than $500." The
recovery was of the lot and rent at $15 per
month from January 1, 1880, until March 1,
1883, or $570 in all. If this rental is to be taken
as an indication of the value of the property, it
certainly must be less than our jurisdictional

limit.

As it rests on the plaintiffs in error to show our
jurisdiction, either from the record or by affidavits,
and this has not been done, the writ of error is dis-
missed for want of jurisdiction.
True copy. Test:

James H. McKenney, Clerk, Sup. Ct. U.S.

EUREKA LAKE AND YUBA CANAL
COMPANY (Consolidated), Piff. in Err.,

SAID COURT.

V.

These are suits in ejectment, each for a sep-
arate and distinct part of a lot in Pensacola. A SUPERIOR COURT OF YUBA COUNTY
judgment was rendered in each case for the re- AND PHILIP W. KEYSER, Judge of
covery of the premises sued for in that case.
Neither the pleadings nor the evidence found
in the records show the value of the property;
but on suing out the writs of error the plaint-
iffs in error in each case filed two affidavits to
the effect that the value was more than $5,000.
Since the cases were docketed here, however,
the defendant in error has filed counter affida-
vits which prove beyond all doubt that this is a
mistake, and that the value in every one of the
cases is very much less than our jurisdictional

The writs of error are, consequently, all dismissed for want of jurisdiction. True copy. Test:

(See S. C. Reporter's ed. 410-418.)
Practice-motion to affirm united with motion
to dismiss-service of papers, when on attor
ney of record.

1. Where, upon a writ of error to a state court, a
federal question is raised here, and it is possible
that its decision was necessarily involved in the
judgment below,a motion to dismiss will not be sus-
tained, although it may not appear affirmatively on
the face of the record that such question was raised

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
a legal order, willfully conceals himself to avoid
service of an order to show cause why such corpo-
ration should not be adjudged guilty of contempt,
service may be made upon its attorney of record.
[No. 907.]

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,

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

the 5th of March, and had not been for more | Constitution of the United States; yet that
thin one month prior thereto," the person des- point is made here, and it is possible its decis-
ated by the Corporation as its agent for the ion was necessarily involved in the final order
service of process. Upon the hearing of this that was made. For this reason the motion to
motion, it appeared that the appointment of dismiss is overruled; but there was sufficient
Cahn as process agent had been revoked and color of right to a dismissal to warrant uniting
Bizelow put in his place. Such being the case, a motion to affirm with the motion to dismiss ;
further order was entered requiring like cause and on consideration of that motion we are en-
to be shown April 23, and efforts were made to tirely clear the case ought not to be retained
serve this order on Bigelow, who was the only for further argument. Section 187 of the Code
person in the State on whom process against or Civil Procedure in California is as follows:
Corporation could be served. Bigelow re- When jurisdiction is, by the Constitution
ded at the mines, and the record shows clear- of this Code or by any other statute, conferred
y that he purposely kept himself out of the on a court or judicial officer, all the means to
War of the officer to avoid service. No service carry it into effect are also given; and in the
as, therefore, made on him; and upon the re- exercise of this jurisdiction, if the course of
rt of the facts, supported by affidavits, May proceeding be not specially pointed out by this
14 was fixed by the court as the time for the Code or the statute, any suitable process or
bearing, and an order was entered that service mode of proceeding may be adopted which
be made upon the attorneys of record herein may appear most conformable to the spirit of
of said defendant.” This service was effected. this Code."
As the return day the attorneys of the defend- Under this Statute the courts of California
appearing specially for that purpose, moved hold that "when a party charged with con-
set aside the order to show cause: 1, because tempt in disobeying a legal order willfully con-
terestraining order was void, the court hav-ceals himself to avoid service of an order to
gno jurisdiction of the person of the defend-
at the time the said order was made and is-
d2, because the "judge who made the
e was, at the time the same was made, dis-
Taited by law to make the said order;" 3, be-
Case the order was granted without due no-
ace, or any notice whatever, to the proper of
dor, or any officer or officers, or to the manag.
of agent, or any agent of said corporation, of
application therefor;" 4. because the re-
ing order was never served on the de-
lant," and, 5, because the order to show
* "never served upon the defendant."
is motion was overruled; and thereupon the
oration not appearing, "by attorney or
in relation to
ontempt," but making default "in said
er of contempt,” a
hearing was had "upon
order to show cause, and said affidavits
the records and papers in said court and
tand the Corporation
was adjudged to
rulty of contempt, and to "pay a fine to
ple of the State of California in the sum
8) as a punishment for such contempt,
ut that execution issue in the name of the
" of the State of California against said

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
free to act accordingly.

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
affirm is granted.
True copy. Test:

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-
Filed as follows:
"Section 264.

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.
True copy. Test:

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-
the same fees allowed to the clerk under section
ran's issued and proceedings thereon, is entitled to
though the entries may differ.
828 R. S, the service being like that of the clerk al-

[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-
arted construction of the statute and regula-
se to hold that, as soon as a first assistant en
meer has served two years at sea on board a
aral steamer, he is entitled as a matter of right
to an immediate examination, whether there is
acancy in the next higher grade to which he
could be promoted or not; and if his examina-
Statement by Mr. Justice Matthews:
The judgment appealed from in this case was
ven examined and promoted, demand the plaintiff below, for the sum of $1,032, upon
rendered in favor the was
pay of a chief engineer from the time when he the following finding of facts reported by the
Lad etmpleted his two years' service at sea. court of claims:

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. |
W, Secretary of the Navy, in his letter of Commissioner of the Circuit Court of the United
May 12, 1864, to the Fourth Auditor, in which he States for the Southern District of Alabama,
"There may be some obscurity in the from January 16, 1882, to November 22, 1883.
Jay 16, 1862; but the evident and sole purpose United States for said district, in compliance
Prding of the sixteenth section of the Act of
the law is to prevent an officer from being with a request by the Attorney-General,
red by absence on duty of the increased made an order requiring, among other things,
which promotion would have given him." that each of the commissioners of said court
a other words, the meaning of the law is that should keep a docket, in which he should
fa oficer is delayed in his promotion because enter on the day the transaction should
has been delayed by his absence on duty, he of the person upon whose complaint and re-
e has not been examined, and his examination occur the issuance of each warrant, the name
Eu, when promoted, have the increased pay quest the same was issued, the nature of the
he sew grade, to begin from the time when offense, and the name of the officer to whom
examination should have taken place.

114 C. S.

the warrant was delivered for service, together

[398]

[398]

[398]