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Argument for Petitioner.

to determine any question concerning this matter until the judgment and mandate of this court had been taken.

This court is not without jurisdiction to punish respondents for a violation of the injunctional order because such jurisdiction is in the Circuit Court which issued the order. State v. Bridge Co., 16 W. Va. 864; Gates v. McDaniel, 4 Stew. & P. (Ala.) 69, distinguished, and see cases collated, 9 Cyc. 32; People v. Horan, 34 Colorado, 304, 338; Wilkinson v. Dunkley-Williams Co., 141 Michigan, 409; Bridge Co. v. Krieger, 91 Kentucky, 625; Lytle` v. Railroad Co., 90 S. W. Rep. (Tex.) 316; State v. Campbell, 25 Mo. App. 640; San Antonio St. Ry. Co. v. State, 38 S. W. Rep. (Tex). 54, 59; State v. Johnson, 13 Florida, 33

Even if the case is one which the court in which it is pending eventually determines that there is want of jurisdiction, the injunctional orders of the court are not therefore void. Williamson's Case, 26 Pa. St. 9, 21; Ex parte Wimberly, 27 Mississippi, 437, 444; Franklin Union No. 4 v. People (Ill.), 110 Am. St. Rep. 255.

As defining "subject-matter" for the purpose of determining jurisdiction, see Union Depot Ry. Co. v. Southern Ry. Co., 100 Missouri, 61; Dowdy v. Wamble, 110 Missouri, 284; Egan v. Wolever, 127 Indiana, 306.

This court has the power and authority to maintain the status of the property pending the litigation, even though jurisdiction may eventually be denied. United States v. Shipp, 203 U. S. 563, 573.

It is contempt of the court in which an action is pending for a litigant to destroy, remove, or conceal the subject of the litigation, or do any other act in respect to the subject of the litigation, which may render nugatory the decision of the court. In re Debs, 158 U. S. 564, 598; Wartman v. Wartman, 29 Fed. Cases, 303, 306; Richard v. Van Meter, 20 Fed. Cas. 682, No. 11,763; Morse v. District Court, 29 Montana, 230; Ex parte Kellogg, 64 California, VOL. CCXIX-34

Argument for Respondents.

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343; Cottier v. People, 61 Ill. App. 17, 30; Brooklyn School v. Kearney, 21 How. Prac. 74; In re Reese, 47 C. C. A. 87, 90; Garrigan v. United States, 89 C. C. A. 494; State v. Pittsburg, 80 Kansas, 710, 712.

A disclaimer or denial of an intention to be in contempt of court or to violate the court's orders, does not purge the accused parties of the contempt. Wartman v. Wartman, 29 Fed. Cases, 303, No. 17,210; Cartwright's Case, 114 Massachusetts, 230; Sturoc's Case, 48 N. H. 428; People v. Wilson, 64 Illinois, 194; Hughes v. The People, 5 Colorado, 436, 453; Plate Co. v. Schimmel, 59 Michigan, 524; Dodge v. State, 39 N. E. Rep. (Ind.) 745; 7 Am. & Eng. Ency. of Law, 76; State v. Simmons, 1 Arkansas, 265; Watson v. Citizens' Bank, 5 S. Car. 159, 182; North Carolina cases distinguished; see Rapalje on Contempt, § 121.

The right of a citizen to the protection of property from destruction by violence should be, and is, zealously guarded by the courts. The power of this court to punish for contempt is not limited or restricted by statutory provisions. Thomas on Constructive Contempt, and cases cited on p. 211.

The merits of the original action in respect to whether the mortgage held by the appellant is in fact a lien upon the property destroyed is not examinable in this proceeding. Rodgers v. Pitt (C. C.), 89 Fed. Rep. 424, 428, 429; 1 Beach on Injunctions, par. 250; 2 High on Injunctions, § 1427; Carroll v. Campbell, 25 Mo. App. 639; 10 Amer. & Eng. Enc. of Pl. & Pr., p. 1105; United States v. Agler (C. C.), 62 Fed. Rep. 824; Blake v. Nesbet, 144 Fed. Rep. 279, 284.

Mr. F. B. Ddwes, with whom Mr. R. C. Miller was on the brief, for respondents:

This court has no power or authority to punish parties for a violation of an order issued by the court from which the appeal was taken even though the court below had

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jurisdiction to issue such order. See 36 La. Ann. 942; Barthet v. Judge, 37 La. Ann. 852; Gates v. McDaniel, 3 Porter (Ala.), 356; Gates v. McDaniell., 4 Stew. & P. (Ala.) 69; Matthews v. Chase, 41 Indiana, 358; Telephone Co. v. Commissioners, 10 N. E. Rep. 922; S. C., 12 N. E. Rep. 136; Dewey v. Superior Court, 22 Pac. Rep. (Cal.) 333; Balkum v. Harper, 50 Alabama, 372; Slaughter House Cases, 10 Wall. 273; Hovey v. McDonald, 109 U. S. 150; and Leonard v. Land Co., 115 U. S. 465; State v. Dillon, 8 S. W. Rep. (Mo.) 781; Bettman v. Harness, 26 S. E. Rep. (W. Va.) 270; Champion Min. Co. v. Eureka Min. Co., 13 Pac. Rep. (Utah) 174; see In re Whitmore, 35 Pac. Rep. 524; Sixth Avenue R. R. Co. v. Gilbert, E. R. R. Co. 71 N. Y. 430; Fitzsimmons v. Board of Canvassers, 77 N. W. Rep. (Mich.) 632; Lindsay v. District Court, 75 Iowa, 509; State v. Ritz, 60 W. Va. 395; Barnes v. Chicago Typographical Union, 232 Illinois, 402; State v. Dams, 51 N: W. Rep. (N. D.) 942; 2 High on Injunctions, 4th ed., §§ 1431, 1698a, 1699; Beach on Injunctions, § 283;1 Joyce on Injunctions, § 277; Green Bay Canal Co. v. Norrie, 118 Fed. Rep. 923. See Voorhees v. Albright, 28 Fed. Cas. 1274; Kirk v. Milwaukee Dust Collector Co., 20 Fed. Rep. 501.

No order of any kind or character has ever been entered or made by this court, save and except an order made on October 24, 1910, dismissing the appeal for want of jurisdiction. This must mean that, according to the unbroken line of authorities, jurisdiction remains in the court below to punish for any infraction or violation of the orders of that court, and it follows as a necessary consequence that these parties cannot be found guilty of contempt of this court. The sole power to punish for contempt by a Federal court will be found in § 725 of the Judiciary Act. All proceedings in contempt in Federal courts are criminal in their nature and governed largely by the rules of criminal law and criminal procedure. See Dowagiac Mfg. Co. v. Minnesota Plow Co., 124 Fed. Rep.

736; Kirk v. Milwaukee Dust Co., 26 Fed. Rep. 501; United States v. Berry, 24 Fed. Rep. 780; In re Ellerbe, 13 Fed. Rep. 530; D. & N. O. Ry. Co. v. A., T. & S. F. Railway Co., 16 Fed. Rep.853; Worden v. Searles, 187 U. S. 516. Even if it was within the power of this court to punish parties for disobeying an order granted by the court below, fines for the benefit of parties could not be inflicted at this time because if the case is ever heard on its merits it may turn out to be that the plaintiff in the case had no right to have its poles and wires upon the streets of the city. Punishment of a civil nature for the benefit of the parties cannot be inflicted until after the merits of the case have been passed upon. If such a penalty should be adjudged prior to the hearing on the merits on which the court should find the parties had a right to do the acts complained of and the other parties had no rights, the judgment punishing for the benefits of the parties would necessarily have to be set aside. Besette v. Conkey, 194 U. S. 196-638; N. J. Patent Co. v. Martin, 166 Fed. Rep. 1010.

MR. JUSTICE LURTON delivered the opinion of the court.

The Merrimack River Savings Bank filed a bill in equity in the Circuit Court of the United States for the District of Kansas claiming to be a creditor of the light and power company by bonds secured by mortgage upon its plant, property and franchises, against the city of Clay Center, the Clay Center Light and Power Company and certain individuals, officials of said city. The bill averred that the Clay Center Light and Power Company was a corporation owning and conducting a light and power plant at Clay Center under a perpetual franchise, authorizing it to place and maintain a line of poles and wires.upon the streets of that city; that the city, claiming that its franchise had expired; had, through its coun

cil, of which the individual defendants were members, required said company to remove its poles and wires from the public streets, and that the officials named as defendants were threatening to cut down its poles and destroy its wires thereon, and thus destroy all possibility of operating its plant, to the irreparable ruin of the security to which the complainant must look for the payment of its bonds. A temporary injunction was issued to prevent the destruction of the lines of poles and wires as threatened. A demurrer to the bill for want of jurisdiction in the Circuit Court as a court of the United States was sustained and the bill dismissed. An appeal to this court was allowed and the injunction continued pending the appeal. Upon a hearing in this court the appeal was dismissed without opinion.

The present petition alleges that after this court had made an order dismissing said appeal, but before any mandate had issued or could issue under the rules of this court, and pending the right of petitioners to file an application for a rehearing, since filed and now pending, certain of the defendants to said appeal, namely, George W. Hanna, O. L. Slade, W. D. Vincent, S. D. Tripp, and G. P. Randall, had, by force and violence, cut down inany of the poles and destroyed much of the cable and wires stretched thereon, and had put the light and power company out of business and disabled it so that it could not exercise its franchise or carry on its operations. It is averred that the said defendants did thus destroy the subject-matter of the suit, knowing that this appeal was pending and that this court had not lost control over the controversy, and that no mandate had issued and could not issue under the rules. The petition concludes by praying that the individual defendants named be cited and required to appear before this court and "show cause, if any they have, why they should not be proceeded against as for contempt of this court." Such a