The opinion of the court was delivered by
When the motions for preliminary injunctions were made in these cases, and all the judges of the Supreme Court were invited to hear the argument, and advise what orders should be made, I was of opinion that there was no equity in the complainants’ bills, and I advised that the injunctions asked for should be denied, ^thought then, as I think now, that the Act. of Congress of March 3d 1863, under which the defendants were acting, is constitutional, and therefore that they had neither dqne nor proposed to do, anything contrary to law or injurious to the complainants. The reasons upon which my opinion was founded I then reduced to writing, and they are on file in this court. They are not all which I might have given. Upon the power of a state court to enjoin a federal officer against the performance of a duty imposed upon him by an Act of Congress, I refrained from expressing any opinion. I refrain now. Yet I had no doubt then, and I have none now, that these bills do not present a proper case for the interference of a court of equity, by injunction, even if the Act of Congress were unconstitutional. The facts charged exhibit no case for the action of a court of equity. No chancellor ever enjoined in such a case, and I think it has never before been supposed that he has any jurisdiction over such a wrong (if it be a wrong) as these complainants ask to he restrained. During the whole of the two arguments to which I have listened, one in support of the original motions, and the other against the present motions to dissolve the injunctions, I have heard no reference to an authority for the position that a court of equity has any right to interfere in. such a case. I believe no authority of the kind can be founcLj Reference has indeed, been made to our Act of Assembly of June 16th 1836, which confers upon this court and the several Courts of Common Pleas, power to “prevent or restrain the commission or continuance of acts contrary to law, prejudi
When the injunctions were ordered in these cases, I endea-voured to show that the Act of Congress of March 3d 1863 is constitutional; that consequently the bills exhibit no wrong done, or threatened to be done to the complainants, and that for this reason they have no equity. I have heard nothing since which
( It was strenuously insisted at the argument that the present motions should not bé entertained, because the defendants have neither demurred to the bill, nor put in an answer, nor presented affidavits, denying the facts averred, and because the cases stand now as they did when the orders for the injunctions were made.It is said that a preliminary injunction will not be dissolved until an answer has been put in, or at least until affidavits on the part of the defendants have been filed. In answer to this, it may be said that whatever may be the extent of the rule thus invoked in opposition to these motions, it is still but a rule of practice existing for the relief of the court, and not for the protection of complainants. An interlocutory injunction is entirely at the discretion of the court. It is not a thing of right. Complainants cannot demand it. It is always granted or dissolved, according to the will of the chancellor, and if at any stage of the cause he sees fit to dissolve it, no right of the complainants is taken away. I admit the general rule to be that when an application to dissolve an injunction is made before answer, it must be supported by affidavits on the part of the defendant in answer to those upon which the injunction was obtained. Decisions to this effect may be found in any number. But the rule is applicable only to cases where the facts averred in the bill and special affidavits of the complainants are disputed. It has no relation to cases where the defect is in the complainant’s equity, not in the evidence of his facts,_ ] More frequently a motion to dissolve an injunction is based upon a denial of the facts charged in the bill, but a defendant may move to dissolve it on the sole ground of want of equity in the bill: Minturn v. Seymour, 4 Johns. Chan. 173; Canal Company v. Railroad Company, 4 Gill & Johnson 7. When the motion is made for such a reason, it need not be supported by affidavits, and a bill requiring such support would be absurd. The facts all appear in the bill of the complainant. They are not controverted. Nothing is in issue but the equity arising out of conceded facts, and affidavits either asserting or denying that would be a novelty indeed. Neither courts of law or courts of equity, in any case, require the law or the equity to be made to appear by affidavits. The decision cited in support of the rule of practice referred to have no relation to such cases as the present, which are motions to dissolve injunctions for want of equity in the bill. They could not have been cited unless the distinction between the facts which raise'an equity and the equity
And were it not so, if the rule is for the protection of the court, and not of the complainants, as no one doubts, and if the dissolution of the preliminary injunctions, equally with the grant of them, lies wholly in the sound discretion of the court, as all the books agree, there are abundant reasons in these cases why the motions to dissolve should be entertained, and why the orders heretofore made should be set aside.
The orders were made at Nisi Prius, and they are in fact but the orders of a single judge, though he undoubtedly took the opinions of all his brethren. Still the orders were his, and his alone. They could be nothing more. Our Act of Assembly, of July 26th 1842, P. L. 433, § 9, turns all cases in equity, brought in the Supreme Court, over to the judge at Nisi Prius, and they come into the Supreme Court in banc only after final decree. And it was at Nisi Prius that these motions were made. The judge before whom they were made has called in the other
The orders of the judge at Nisi Prius can, therefore, have no possible beneficial effect upon the condition of the complainants, while if they remain, made as they were, in accordance with the advice of a majority of the judges of the Supreme Court, and upon the ground that the Act of Congress is unconstitutional, they hold out to every drafted man a temptation to resist all attempts to coerce him into military service. Unnecessarily to continue such a temptation is cruelty, if a majority of the Supreme Court now believe the Act of Congress to be constitutional, and that consequently forcible resistance to it would be a crime.
Again, the orders for the injunctions were made ex parte, after argument on behalf of the complainants alone. No one attended for the defendants. It is true, there was an appearance on record for the defendants in one of the cases, and notice of the motion was served on the solicitor, who appeared in that case. But there was no appearance in the other two cases, and there was no proof of notice of the motions to all the defendants. They are not the same in the several cases. If there was laches in responding to the notice of the motion in one case, there is no proof of any laches in the other two. And in fact the injunctions were ordered against official action of government officers. To the government, laches is not to be imputed.
Nor ought it to be overlooked that the orders for the injunctions were in their character extraordinary and unprecedented. When before was an Act of Congress ever declared unconstitutional by a state court in deciding upon a motion for an interlocutory order ? A just respect for the government under which we live, demands that if there was a mistake in such a ease, the court should seize with avidity the earliest opportunity to rectify it, instead of persisting in the error under cover of a rule adopted only to secure its own convenience. I may add that in other cases there has been no hesitation in listening to applications for the correction of mistakes into which even the Supreme Court in banc has been supposed to have fallen. This very week a motion was entertained in the Supreme Court to change a final judgment given at Pittsburgh at October Term last. It was
Once more. The records show that the injunctions ordered in these cases have never been issued. They would have been fruitless if they had been. The complainants have filed no bonds, nor have they taken out any injunctions. They have rested satisfied with the orders. The matter therefore remains perfectly within the jurisdiction of the court, evenjf the dissolution of an injunction itself was not discretionary. ¡These are quite sufficient reasons, in my judgment, for entertaining the present motions, even if the rule of practice, on which the complainants rely, applies to such cases as these. And manifestly it does not. There is nothing in the way of deciding these motions on their merits. And as I am satisfied that the bills of complainants have no equity, and that the Act of Congress is such as Congress has the constitutional power to enact, I think the orders for preliminary injunctions made in all these cases should be rescinded, and that the motions for the injunctions should be overruled.
Such being the opinion of a majority of the judges of the Supreme Court, the orders are directed to be vacated, and the motions for injunctions are overruled.