(dissenting).
I respectfully dissent. It is well settled in this state that a temporary injunction issued by a court which had no jurisdiction of the subject matter is void and may be violated with impunity. Ex parte Barrett, 120 Tex. 311, 37 S.W.2d 741; Ex parte Henry, 147 Tex. 315, 215 S.W.2d 588. I would not extend this rule to temporary restraining orders except in cases where the issuing court could not under any conceivable circumstances have power to grant in-junctive relief. For example, a court of equity is utterly without power to interfere with an election during its progress. The election officials should, therefore, be free to disregard a temporary restraining order which seeks to prevent their canvassing the returns or declaring the results of the election.
The present case does not fall within that exception, because the district court clearly has jurisdiction to enjoin a threatened trespass under color of a void condemnation proceeding. Lone Star Gas Co. v. City of Ft. Worth, 128 Tex. 392, 98 S.W.2d 799, 109 A.L.R. 374; Benat v. Dallas County, Tex.Civ.App., 266 S.W. 539 (writ ref.). See also Dallas County v. Plowman, 99 Tex. 509, 91 S.W. 221. In the injunction suit with which we are now concerned, the landowners came to the district court with their verified petition alleging that the condemnation proceedings were void for six different reasons, and at least two of the grounds alleged might well render such proceedings void. For example, the condemnation petition indicated that the City was acting under the power conferred by Article 1107, Vernon’s Ann.Tex.Civ.Stat. This statute does not authorize the taking of property for a drainage easement, and there is at least one appellate decision holding that an eminent domain action is void where the condemning authority proceeds under the wrong statute. O’Keefe v. Hudspeth County, Tex.Civ.App., 25 S.W.2d 625 (no writ). I mention this merely to show that the injunction suit was not “obviously and indisputably” outside the jurisdiction of the district court.
When such a petition was presented, it is my opinion that the district court had power to issue a valid and enforceable temporary restraining order to preserve the status quo until there was an opportunity to determine whether it had jurisdiction over the subject matter. That determination can and should be made at the hearing on the temporary injunction. If the court then erroneously concludes that it has jurisdiction, the party enjoined is free to violate the temporary injunction if he desires to do so.
As indicated by the majority opinion, the courts of other jurisdictions recognize that the orderly administration of justice re*584-quires that a court have a reasonable opportunity to determine its own jurisdiction. United States v. United Mine Workers of America, 330 U.S. 258, 67 S.Ct. 677, 91 L. Ed. 884; United States v. Shipp, 203 U.S. 563, 27 S.Ct. 165, 51 L.Ed. 319; Smotherman v. United States, 10th Cir., 186 F.2d 676. In Aladdin Industries, Inc. v. Associated Transport, Inc., 45 Tenn.App. 329, 323 S.W.2d 222 (cer. den. 361 U.S. 865, 80 S.Ct. 117, 4 L.Ed.2d 104), certain shippers were granted a temporary injunction requiring various motor carriers to continue their customary service. The service had been discontinued because the drivers refused to cross picket lines. It was contended in a subsequent contempt proceeding that those who violated the injunction could not be held in contempt because the issuing court had no jurisdiction of the subject matter. In rejecting this argument, the appellate court said:
“But irrespective of whether he had jurisdiction in the sense that he could have entered final decrees that would have ultimately been held free from error, he had jurisdiction to determine all the issues, including that of his own jurisdiction, and to grant a temporary injunction to preserve the status quo pending such determination. And pending such determination no person was at liberty to defy the court or to aid any party defendant in a breach of the injunction.”
The courts have also said by way of dictum in these cases that the result would be different if the question of jurisdiction were frivolous or not substantial, but the decisions in which contempt convictions have been set aside on that ground involved temporary injunctions rather than temporary restraining orders. Pitcock v. State, 91 Ark. 527, 121 S.W. 742; Leeman v. Vocelka, 149 Neb. 702, 32 N.W.2d 274. My principal difference with the majority in the present case relates to the scope of this exception as applied to a temporary restraining order. We have already extended the exception beyond all reason where the violation of a temporary injunction is charged. The jurisdictional problem may be so difficult that able judges disagree sharply as to its solution. But when a court of last resort finally determines, perhaps after weeks of research and reflection, that the court issuing the temporary injunction had no jurisdiction to do so, we hold that the parties were free to violate its order from the outset.
That is not the situation which the courts have in mind when they speak of a frivolous question of jurisdiction. The scope of the exception they recognize was plainly defined by Mr. Justice Frankfurter as follows :
“Only when a court is so obviously traveling outside its orbit as to be merely usurping judicial forms and facilities, may an order issued by a court be disobeyed and treated as though it were a letter to a newspaper. Short of an indisputable want of authority on the part of a court, the very existence of a court presupposes its power to entertain a controversy, if only to decide, after deliberation, that it has no power over the particular controversy. Whether a defendant may be brought to the bar of justice is not for the defendant himself to decide.” United States v. United Mine Workers of America, supra.
In my opinion we should narrow rather than extend this exception where violation of a temporary restraining order is charged. There is no good reason for saying that our more liberal rule applicable to temporary injunctions must necessarily be applied to temporary restraining orders. A temporary injunction is entered after a hearing at which both parties may introduce evidence and present their legal contentions, and it remains in effect pending a trial on the merits. If the court erroneously concludes that it has jurisdiction after this opportunity to ascertain the facts and investigate the *585law, there is some basis for holding that the parties may disregard the temporary injunction without waiting for the same to be set aside on appeal.
A temporary restraining order is quite different. It is issued without notice or hearing to prevent immediate and irreparable damage. Under the provisions of Rule 680, Texas Rules of Civil Procedure, it may remain in force for an initial period of not more than ten days and may be extended only for a like period upon a showing of good cause or for a longer period by agreement of the party against whom it is directed. A motion to dissolve may be heard on two days’ or even less notice to the party obtaining the restraining order. It is not unreasonable then to require that the order be observed during the relatively brief period allowed the court for determining its own jurisdiction. Certainly the danger of irreparable and unlawful damage to the plaintiff outweighs whatever inconvenience the defendant might suffer as a result of the delay.
The relators in this case proceeded to render the entire controversy moot without suggesting to the district court that it might not have jurisdiction or giving the court an opportunity to pass on the contentions they now urge. Any rule which encourages conduct of that sort not only fosters disrespect for the law and the judicial process but also hampers the courts in their efforts to protect property and rights from unlawful invasion. If the drainage easements had run through the Vincent home and it later developed that the condemnation proceeding was void and that the district court did have jurisdiction, relators could have been held in contempt but that would be little comfort to those whose home had been destroyed. Whenever “a party can make himself a judge of the validity of orders which have been issued, and by his own act of disobedience set them aside, then are the courts impotent, and what the Constitution now fittingly calls the ‘judicial power of the United .States’ would be a mere mockery.” Gompers v. Buck’s Stove & Range Co., 221 U.S. 418, 31 S.Ct. 492, 55 L.Ed. 797. I would remand relators to custody.
CALVERT, C. J., and STEAKLEY and GREENHILL, JJ., join in this dissent.