The separate opinion of
Mr. Justice McReynolds.' Theoretically, everybody in this land is subject to the law. But of what value is-the theory if performances like those revealed by this record go unrebuked?
*551An army officer, having inflated himself into judge and executioner, decided that a fleet of towboats and barges lying in the Mississippi Eiver at St. Louis ought no longer to remain in the custody of a private citizen who held possession of them, under a solemn lease and contract of sale from the United States and who, in order to make them operative, had expended upon them forty thousand dollars of his own- money. Then, waiting until a Sunday arrived, he proceeded to grab the vessels by force and endeavored to run them beyond the jurisdiction of the court.
Action like that is familiar under autocracies, but the prevalent idea has been that we live under a better system.
The trial court, after'taking an ample indemnifying bond, issued a temporary injunction requiring that possession of the vessels be restored and remain as before the seizure until the rights of all parties could be properly considered and determined. The Circuit Court of Appeals reversed this interlocutory order, and from its decree the cause came here by certiorari.
As a fitting climax to the high-handed measures pursued by the officer, special counsel for the United States appeared at our bar and gravely announced — “.Where the executive power has pronounced its finding or judgment within its proper sphere of action, a judicial judgment is hot necessary to the enforcement of the executive one, for the reason that all the compulsive power of the government is in the executive department and may be exércised by it in execution of its own processes and judgment, just as it is exercised by it in the execution of judicial process and judgment.”
It is easy enough for us to smile at such stuff, but, unfortunately, the evil effects are not dissipated by gentle gestures. There' should be condemnation forceful enough to prevent repetition so long as men have eyes to read.
*552In the Circuit Court of Appeals Judge Sanborn presented a well-considered dissenting opinion and pointed out that the only judicable question before that court was whether or not the order for the injunction and the record disclosed an unlawful, improvident or abusive use of the sound discretion which the trial judge was required to exercise. 7 Fed. (2d) 838, 851; and see Ex parte United States, 263 U. S. 389. He could find no such abuse, and neither can I. The trial court did no more than the circumstances permitted. We should approve its action with commendation of the impelling courage.and good sense.