Eureka Lake Yuba Canal Co v. Superior Court of Yuba Co./Opinion of the Court

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.