ROYAL TRUST CO. et al. v. WASHBURN, B. & I. R. R. CO.; PIKE v. FROST, 139 F. 865

GROSSCUP, Circuit Judge (after stating the facts as above), delivered the ppinion: It is not seriously contended, in argument, that the acts of the agents of the United States Court, acting under the order of that court, were a crime within the provisions of Section' 4386 of the Revised Statutes of Wisconsin. That statute was wholly directed to another purpose.

But it is urged in argument by the plaintiffs in error, that the Circuit Court of the United States was without power to take up the rails, or discontinue the operation of the road; that the rails, once laid, became a part of a public highway, was mortgaged as such a highway; and as such highway could be dismembered or discontinued only by authority or consent of the state.

On the other hand it is argued by the receiver, that the order of the Circuit Court of Bayfield County was beyond its power; that the railroad having gone into the possession of the United States Court, the State Court was without power to do anything that would hinder or interfere with the United States Court’s exercise of such possession; and that the institution and pendency of the proceedings for mandamus, and the issuance of the writ was such hindering and interference; and, therefore in contempt of the order, jurisdiction and possession of the United States Court. ' We do riot find it necessary to pass on either of these questions as abstract legal propositions.

Whether it was within the power of the United States Court, under the circumstances named, to discontinue the operation of the road, and tear up the rails, we need not determine. It is enough that the question of such power was triable in the United States Court, having the property in its possession — that the court had jurisdiction, to the extent at least of determining whether under the laws of Wisconsin it had the power in question.

Whether it was within the power of the State Court to forbid such discontinuance of the railroad as a public highway, notwithstanding that the acts forbidden were being done by employees and agents of the United States Court, is a question we need not determine. Here, again, it is enough to say that the question of such power was triable in the State Court — the State Court having jurisdiction to determine, for itself, whether it had such power.

The point at which interference with the possession of the federal court begins, is not the invoking in the State Court of its power in that respect, but the attempt to exercise such power, to the extent that the exercise of such power would interfere, actually and physically, with the possession of the property by the United States Court. The United States Court, being in possession of the property, had the right, without actual and physical molestation by others, to enter such orders as it deemed within its power in the premises, and to execute such orders.

The State Court had the right, without molestation by others, to determine for itself, how far it had power to forbid or prevent the discontinuance of the railroad, or the tearing up of the rails. The limit of the State Court’s power, possession being in the United States Court, was that it should not actually or physically interfere with such possession.

If it be said that the concurrent exercise of these two jurisdictions, though they stop at actual physical conflict, are necessarily incompatible and antagonistic, the answer is, that in the end, the jurisdictions flow together, both streams coming finally within the jurisdiction and determination of the Supreme Court of the United States. The case thus divides itself, as to the several plaintiffs in error, into two aspects. As to Lien, it shows acts and conduct in contempt of the jurisdiction, orders and possession of the United States Court.

Had Lien been content to serve the writ, reporting to the State Court for its final action, the disobedience of those on whom it was served, he would have remained within his right as the executive officer of the State Court. But he was not thus content. He seized the agents and employees of the United States Court, carried them away from their work, and threw them into prison. In the doing of this there was actual and physical interference with the possession of the United States Court, and therefore contempt of its jurisdiction, order and possession.

As to the other plaintiffs in error, it is not shown — it is not even averred in the petition — that they did anything further than to institute the suit in the Bayfield Circuit Court, and obtain the order culminating in the writ. If by advice, presence, or other means, they encouraged or abetted Lien in his subsequent physical interference with the agents of the United States Court, the fact is not brought out. We find nothing, therefore, either in the petition, or record, that justifies the judgment that they were in contempt of the United States Court.

The judgment of the Circuit Court as to Lien, is affirmed, and as to Pike, Sprague, Jacobs, Lemke, Hirsch, Maxcy and McLeod, is reversed, with instructions, as to them, to dismiss the petition.