EUREKA LAKE & YUBA CANAL CO., Consolidated, v.

6 S.Ct. 429

116 U.S. 410

29 L.Ed. 671


SUPERIOR COURT OF YUBA CO. and another, etc.1

Filed January 18, 1886.

The record in this case shows that the Eureka Lake & Yuba Canal Company, Consolidated, 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 chird 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 hydraulic 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 fifth of December a motion was made to set aside this service. This motion was denied December 23d, and on the seventeenth of January the corporation, by James K. Byrne and W. C. Belcher, its attorneys, filed a demurrer to the complaint. On the twentieth of January an order was entered requiring the corporation to show cause February 2d 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 24th, and service of an order to this effect was made on Cahn, March 5th. 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 fifth of March, 'and had not been for more than one month prior thereto,' the person designated by the corporation as its agent for the service of process. Upon the hearing of this motion, it appeared that the appointment of Cahn as process agent had been revoked, and Bigelow put in his place. Such being the case, a further order was entered requiring like cause to be shown April 23d, and efforts were made to serve this order on Bigelow, who was the only person in the state on whom process against the corporation could be served. Bigelow resided at the mines, and the record shows clearly that he purposely kept himself out of the way of the officer to avoid service. No service was therefore made on him, and upon the return of the facts, supported by affidavits, May 14th was fixed by the court as the time for the hearing, and an order was entered that service be made upon 'the attorneys of record herein of said defendant.' This service was effected. At the return-day the attorneys of the defendant, appearing specially for that purpose, moved to set aside the order to show cause, (1) because the restraining order was void, the court having 'no jurisdiction of the person of the defendant at the time the said order was made and issued;' (2) because the 'judge who made the same was, at the time the same was made, disqualified by law to make the said order;' (3) because the order 'was granted without due notice, or any notice whatever, to the proper officer or any officer or officers, or to the managing agent, or any agent, of said corporation, of the application therefor;' (4) because the restraining order was 'never served on the defendant;' and (5) because the order to show cause was 'never served upon the defendant.' This motion was overruled, and thereupon, the corporation not appearing, 'by attorney or otherwise, to show cause * * * in relation to said contempt,' but making default 'in said matter of contempt,' a hearing was had 'upon said order to show cause, and said affidavits and the records and papers in said court and action,' and the corporation was adjudged to be guilty of contempt, and to 'pay a fine to the people of the state of California in the sum of two hundred and fifty dollars as a punishment for such contempt, and that execution issue in the name of the people of the state of California against said defendant therefor.'

On the twenty-sixth of July, 1883, the corporation filed in the supreme court of the state a petition for review, on the ground that 'in entering said order of injunction, and in assuming thereafter to adjudge the petitioner guilty of contempt for its alleged violation of said order, the said superior court of said county of Yuba, and the said judge thereof, exceeded the jurisdiction thereof.' Upon this petition, the orders of the superior court were affirmed, and to reverse that judgment this writ of error was brought.

W. W. Cope, for plaintiff in error.

A. L. Rhodes, for defendant in error.

[Argument of Counsel from pages 413-415 intentionally omitted]



It does not appear affirmatively on the face of the record that the orders of the superior court were objected to in the supreme court on the ground that, in the absence of personal service of the order to show cause on some officer or authorized agent of the corporation, the judgment in the contempt proceeding was without due process of law, and therefore contrary to the fourteenth amendment of the constitution of the United States; yet that point is made here, and it is possible its decision was necessarily involved in the final order that was made. For this reason the motion to dismiss is overruled; but there was sufficient color of right to a dismissal to warrant uniting a motion to affirm with the motion to dismiss, and on consideration of that motion we are entirely clear the case ought not to be retained for further argument.


Section 187 of the Code of Civil Procedure in California is as follows: 'When jurisdiction is, by the constitution or this Code, or by any other statute, conferred on a court or judicial officer, all the means to carry it into effect are also given; and in the exercise of this jurisdiction, if the course of proceeding be not specially pointed out by this Code or the statute, any suitable process or mode of proceeding may be adopted which may appear most conformable to the spirit of this Code.'


Under this statute the courts of California hold that 'when a party charged with contempt in disobeying a legal order, willfully conceals himself to avoid service of an order to 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 M. Co. v. Superior Ct., 65 Cal. 132, S. C. 3 Pac. Rep. 628, 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, and to give public notice thereof by filing the instrument of designation in the office of the secretary of state. After this suit was begun, this agency was changed by this corporation, and the person designated, instead of being located at San Francisco, where he could be easily found, was at the mines. This change was made after the service of the injunction on the former agent, and after the court had determined that service upon him was sufficient to bring the corporation into court. It was also made after the corporation had been guilty, as was alleged, of a violation of the injunction, and after an attempt had been made to serve an order to show cause on Cahn, the old agent. The new agent was to be found only at a place difficult of access, and even there he kept himself concealed from the officer who had been charged with the duty of making the service. As he was the only person in the state on whom process could be served, his concealment to avoid service was in law the concealment of the corporation itself, and the court was left free to act accordingly.


By section 1209 of the Code of Civil Procedure of California 'disobedience of any lawful 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, 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, 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.


The motion to dismiss is denied, but that to affirm is granted.


S. C. 5 Pac. Rep. 490.

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