Warder v. Shufeldt , 40 N.M. 442 ( 1936 )

The questions raised on rehearing were determined in our original opinion, but some are reconsidered.

It is true that a number of courts have held that dismissal of an injunction proceeding or final disposition of a case without continuing the injunction in force does not prevent punishment for contempt for violations of the injunction while in force. Smith v. Reno, 6 How. Pr. 124; Crook et al. v. People,16 Ill. 534; Shuler v. Raton Waterworks Co. (C.C.A.) 247 F. 634; State v. King, 29 Kan. 607; Wireless, etc., Co. v. Priess,246 Mass. 274, 140 N.E. 793.

However, we do not feel disposed to overrule Canavan v. Canavan, 18 N.M. 640, 139 P. 154, 156, 51 L.R.A.(N.S.) 972, Ann.Cas. 1915D, 1007, which holds to the contrary and is supported by Peck v. Yorks, 32 How. Pr. 408; Taber v. Manhattan Ry. Co., 14 Misc. 189, 35 N.Y.S. 465, affirmed by New York Court of Appeals, 148 N.Y. 743, 42 N.E. 1093; Jones v. Jones, 75 Wash. 50, 134 P. 528; Moat v. Holbein, 2 Edw. Ch. 188; and State v. Nathans et al., 49 S.C. 199, 27 S.E. 52.

But counsel contends that there was never a dissolution of the injunction. That, perhaps, depends upon the viewpoint. A law can be so amended as to entirely change the rule of conduct, and an injunctive order can be so modified that the same result will follow. We see no difference in that regard between an order dissolving an injunction and one modifying it so that the original rule of conduct is abrogated. In either case there is left no foundation for contempt proceedings.

We are not so much concerned in regard to the correctness of the conclusions of law reached in our original opinion as we are with regard to whether any definite part of the original injunction order was continued in the modification so that it could be a basis for contempt.

As we stated in the original opinion, both the order as originally made, and as modified, required that one-half the flow of the river be permitted to pass down to the appellees, and the means ordered to effectuate this in the respective orders were different. The original order and its modification were copied in our original opinion. Clearly the original order enjoined appellant from diverting more than one-half of the flow of the water of the Mora river by means of said La Cueva Irrigation System, or otherwise, and ordered that the water "shall be permitted to pass down the bed of said river at the location of said diverting dam and not be diverted and released in the sluice gate at the so-called `old mill' on said property." Here the rule of conduct not only required that appellant divert no more than one-half the water flowing in the river, but it further provided what specific act should be done by appellant to cause the water to go down the river; that is, it must go through the dam and not be returned to the river at any other place.

While appellee argues that the administrative provisions in the injunction are not to be considered in determining whether it has been violated, we think this is not correct. Assume that appellant had permitted one-half the flow of the water under the original order to have gone into the river at the sluice gate; notwithstanding appellees would have received the water they were entitled to, yet it would have violated the injunction. Indeed, the injunction would have been violated had the water been turned out of the ditch at any place except through the dam. No doubt counsel for appellees wrote the order of the court, as is customary, and made it unnecessarily oppressive, but nevertheless appellant was bound to obey it as made. The administrative feature complained of was a material part of the order, and must have been obeyed in order for appellant to have been safe from contempt proceedings.

Under the modified order appellant was required to turn the water down through the sluice gate, otherwise he would violate the order and be in contempt of court. The rule of conduct here, not only required that one-half of the water be not diverted, but that it should be turned into the river at a particular place. If the water had been turned in at any other place, the injunction would have been violated.

It should have been immaterial to appellees how the water was let into the river if it passed appellant's works. But they not only wanted an injunction to prevent the diversion of the water to which they were entitled, but wished it administered in a particular manner, more aggravating than useful.

As we see it, the administrative features of the order (original and as modified) were such a part of the rules of conduct, that although the water might have been turned into the river, yet appellant was subject to contempt unless it was done exactly as ordered. The original rule of conduct was so materially changed by the modifying order that it was abrogated.

People v. Rice, 144 N.Y. 249, 39 N.E. 88, cited by appellees, is not inconsistent with our holding. The Court of Appeals modified the order of mandate in an immaterial way but did not change the command to disregard the return filed by Mylod and issue the certificate of election, which was the object of the proceeding.

Cases involving criminal contempt have no application here. A different rule applies. State v. Nathans, supra.

This court, in Canavan v. Canavan, supra, quoted with approval the following from Peck v. Yorks, 32 How. Pr. 408: "`An injunction, which is but an order of the court, can have no more force or extended operation after it is set aside or modified than a statute repealed or modified, in regard to acts previously done. In either case, the rule being abolished, the infraction of it is abolished also, and nothing remains on which a conviction can be based.'"

The motion for a rehearing is overruled.

SADLER, C.J., and HUDSPETH and BICKLEY, JJ., concur.

ZINN, J., did not participate.