Slaughter-House Cases the Butchers' Benevolent Association of New Orleans v. Crescent City Live
THESE were motions made at the close of this term (December, 1869), in behalf of several plaintiffs in error, to enforce the supersedeas on writs of error which had issued in five several cases to the Supreme Court of the State of Louisiana, returnable to the term now coming (December, 1870), of this court.
The case was this:
By the 25th section of the Judiciary Act of 1789, this court has power, on writ of error, to re-examine a final judgment or decree in any suit in the highest court of law or equity of a State in which a decision in the suit could be had, 'where is drawn in question the validity of a statute of, or an authority exercised under, any State, on the ground of their being repugnant to the Constitution of the United States, and the decision is in favor of such their validity.' By this same section the writ of error to such Supreme Court of the State 'shall have the same effect as if the judgment or decree complained of had been rendered or passed by a Circuit Court.'
By a prior section of the act (the 22d) it is enacted that 'final judgments and decrees in civil actions and suits in equity in Circuit Courts . . . may be re-examined, and reversed or affirmed in the Supreme Court, a citation to the adverse party being in such case signed by a judge of such Circuit Court, or justice of the Supreme Court, and the adverse party having at least thirty days' notice.' The same section proceeds:
'And writs of error shall not be brought but within five years after rendering or passing the judgment or decree complained of. And every justice or judge signing a citation on any writ of error, shall take good and sufficient security that the plaintiff in error shall prosecute his writ to effect,' &c.
A following section (the 23d), declaring the effect of a writ of error to a judgment in a Circuit Court, says:
'That a writ of error, as aforesaid, shall be a supersedeas and stay execution in cases only where the writ is served, by a copy thereof being lodged for the adverse party in the clerk's office, within ten days after rendering the judgment or passing the decree complained of. Until the expiration of which term of ten days execution shall not issue in any case where a writ of error may be a supersedeas.'
The same act of 1789 provides, by its fourteenth section, that this court 'shall have power to issue writs of scire facias, habeas corpus, and all other writs not specially provided for by statutes, which may be necessary for the exercise of their respective jurisdictions and agreeable to the principles and usages of law.'
An act, however, of March 2d, 1793, entitled 'An act in addition to the act' above quoted, of 1789, thus declares:
'Writs of ne exeat and injunction may be granted by any judge of the Supreme Court in cases where they might be granted by the Supreme or a Circuit Court; but no writ of ne exeat shall be granted unless a suit in equity be commenced and satisfactory proof made that the defendant designs quickly to depart from the United States; nor shall a writ of injunction be granted to stay proceedings in any court of a State.'
These statutory enactments being in force, the legislature of Louisiana, A.D. 1869, in professed exercise of its power to protect the health, promote the cleanliness, and regulate the police of the city of New Orleans, passed an act by which it ordered all animals imported for consumption in the city to be landed at certain places, and all intended for food to be slaughtered there, and for the purpose of executing this law conferred on seventeen persons, as a company, the exclusive right to maintain landings for cattle and to erect slaughter-houses, &c., chartering them under the name of The Crescent City Live-stock Landing and Slaughter-house Company.
The plaintiffs in error, being different individuals and companies, undertaking or continuing to maintain other landings and slaughtering houses, in opposition to those of the chartered company, that company filed petitions in certain of the District Courts of the State asserting their right to the monopoly conferred by the act, and obtained preliminary injunctions against these different parties and associations prohibiting the use of the landings and the exercise of the business of slaughtering as infringing upon the exclusive right which the new company claimed under the act. These injunctions, upon the hearing of exceptions and answers, were perpetuated.
In other of the District Courts of the State, those who asserted that the act was a violation of their rights also filed petitions against the company, upon which preliminary injunctions were perpetuated in favor of the petitioners.
The ground maintained against the act was, that it violated the fourteenth amendment of the Constitution of the United States, which declares that 'no State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of liberty or property without due process of law, nor deny to any person within its jurisdiction the equal protection of the laws.'
These conflicting decrees in the District Courts were all taken by what are known in Louisiana as 'suspensive appeals' to the Supreme Court of the State, where judgment in all was given in favor of the new company, which asserted the validity of the act. And to these judgments of the Supreme Court of the State writs of error were taken from this court under the already-mentioned 25th section of the Judiciary Act; the writs of error, service citation, bond, &c., being all regularly taken and made, and filed within the ten days prescribed by the 23d section, which prevents the writ of error from operating as a supersedeas and stay of execution unless these be taken within that time.
Before the judgments here complained of were rendered in the Supreme Court of Louisiana, the legislature of that State created a new court, known as the Eighth District Court of New Orleans, giving to it exclusive original jurisdiction in cases of injunction, and authorizing the removal of such cases into it from other courts.
The parties denying the rights of the new company to the exclusive privileges granted to it by the act of 1869, being, after the writ of error from this court to the Supreme Court of the State, about to proceed to the landing and killing of cattle, &c., in disregard of the injunction, which, as they asserted, was superseded by the writ of error taken from this court, the attorney-general of Louisiana, now intervening on what till now had been a litigation between citizens in a question of private right, moved in this new court in one of the cases here the subject of writ of error to enforce the judgment rendered on appeal to the Supreme Court of the State making perpetual the injunction originally granted by the court from which the cause was removed; but the new court refused to grant this motion on the ground that the writ of error sued out to this court (the Supreme Court of the United States) operated as a supersedeas under the 23d section of the Judiciary Act. But it did enforce the preliminary injunctions granted by those District Courts which thought that injunctions ought to be granted; and, in addition, upon a petition in proceedings of an original character, instituted by the new corporation, and afterwards adopted by the attorney-general as representing the State, to which proceedings none of the plaintiffs in error in these present cases were parties, but which were directed against the corporation of New Orleans and the board of metropolitan police there, the new court ordered the city and the board of police to prevent all persons except the new company from landing or slaughtering cattle or selling animal meat for food.
In this state of things the plaintiffs in error in the five several cases (here designated generally and by their popular name as 'The Slaughter-house Cases,' but of which the specific names are also given at the beginning of the case, on p. 273) filed petitions in this court setting forth the general history of things below, the fact that they had obtained writs of error, &c., within ten days, so as to remove the causes to this court and to be a supersedeas to any execution; that after this had been done the defendants in error, to defeat the operation of the writs and in disobedience of the supersedeas, applied to the Eighth District Court for orders of the sort already described to prevent all persons (except the defendants) from landing, keeping, or slaughtering any cattle; that the orders were granted as asked for, and had been executed so as to prevent the plaintiffs in error from having any benefit of the supersedeas to which they were entitled, and so far as the orders were on the original proceedings had in effect turned the corporation of New Orleans and the metropolitan board of police into sheriffs to enforce the judgments of courts which had been superseded by the writs of error. All of which would appear, the petitioners asserted, from the record of the proceedings in the Eighth District Court, and the affidavits on file with the same, submitted with the petition.
The motion in this court therefore was for an order of injunction and supersedeas to command the defendants in error and the city of New Orleans, the metropolitan board of police, in no manner to hinder or to prevent the plaintiffs in error from landing or slaughtering animals, or of having, keeping, or establishing landings or slaughter-houses, or for vending animal food in the markets of New Orleans, as fully as they could before the passage of the act of 1869, incorporating the defendants, or as the defendants were allowed to do by the said act, and that a suitable order might be made to the said Eighth District Court to prohibit it from further proceeding in the premises.
Messrs. J. A. Campbell, P. Phillips, and J. Q. A. Fellows, in support of the motion:
In England the allowance of the writ of error suspends all further proceedings in a cause, and on motion such proceedings will be set aside. The service of notice of the allowance is only material to bring the party into contempt if he proceed subsequently.  In one case  it was held to be a contempt in the attorney in taking out execution against bail to the action, though this was merely collateral to the judgment on which the pending writ of error operated.
The effect of an appeal, though taken from a mere interlocutory order, was originally maintained by the House of Lords to suspend all proceedings whatever until the decision of the Lords on the appeal. In 1772 this was so far modified as to allow the appeal to be a supersedeas only as to the matter appealed from; and the Chancellor was permitted, during the recess of Parliament, to take such proceedings pending the appeal as were requisite for the preservation of the rights of the parties. In 1807, the rule, as it now exists, was adopted, to wit, that the appeal did not operate, of itself, a suspension of any proceedings. But this suspension was allowed, in whole or in part, by the appellate court, or by the Chancellor, according to the exigency of the case. 
The Judiciary Act of 1789 found the rule, as established in England in 1772, in full operation, and has dealt with the whole subject. The writ may be sued out at any time within five years from the rendering of the judgment or decree; but when taken within ten days thereafter, the statute declares that it 'shall be a supersedeas and stay execution.'
The supersedeas thus given will be protected and enforced by this court by virtue of its inherent powers as an appellate tribunal. The motion to quash an execution issued after the allowance and filing of the writ of error might be made in the court below. But it is equally competent for this court, in the furtherance of justice, to do the same thing. The supersedeas order is directed not only to the parties and the executive officers, but also to the judges of the court. 
'It is a well-settled rule,' say the Supreme Court of Louisiana,  'that after a cause is sent to this court by regular appeal, the court of the first instance can no longer take any steps in the case except such as may be necessary to transmit the record to the court above.'
Decisions in Louisiana demonstrate that the cases now before this court were proper cases for suspensive appeals. In one case  the petitioner, asserting himself to be chief of police, in another  to be sheriff, filed his petition for injunction against the incumbents. The petitions were granted, and orders restraining the parties incumbent from a further performance of official duties, and for delivery up of books, &c., pertaining to their offices, were made a part of the injunctive orders. Suspensive appeals were prayed for and denied in the court below, but on petition for mandamus the Supreme Court of the State made the rule peremptory, holding that the right to such an appeal had been constantly recognized; and a careful examination of the Code of Practice shows that the right to a suspensive appeal is the rule, and that it stays proceedings, save in cases specially excepted.
It would seem to be a mere conceit (though this was the idea of the Court of the Eighth District), that the matter appealed from was the perpetuated injunction, and that the appeal did not reach the preliminary injunction. Of what consequence to the defendant is his suspensive appeal, what rights does it preserve, if this be its true operation? The ex parte order for injunction is subsequently declared to be perpetuated. It is one and the same injunction. The right of the defendant, under the suspensive appeal, is the right not to be disturbed until he can get the judgment of the appellate court; and if, notwithstanding the appeal, he can be ousted, of what consequence is it that this is done on the preliminary, and not on the final order? If the appeal does not protect his possession, then it is not suspensive.
In a judicial sense the judgment below was not affirmed, for this was the question which the law had transferred for decision to this court. In other words, the case stood as if the Act of 1789 had brought the case up from the decree of the District Court directly.
The Eighth District Court, of whose action we complain, admits that the judgment of the Supreme Court was superseded, and refused a motion on that ground to make that judgment executory, and yet gave execution on the preliminary order on what we have attempted to show was an unfounded distinction. If, therefore, the writ of error had been directly addressed to the District Court, and pending the cause in this court the court of first instance had proceeded to execute the injunction, we cannot doubt that the motion to set aside such proceedings would be granted. It would seem to follow that the same motion must be granted when the Supreme Court is intermediary.
Messrs. Black, Durant, Carpenter, and Allen, contra:
1. Writs of error to reverse judgments at law rest on a different basis from writs of error brought for the purpose of obtaining a revision of a case by the Supreme Court of the United States. Supersedeas is a law term, and has no application to a chancery proceeding.
2. In the English chancery practice the question whether an appeal shall stay proceedings rests much in the discretion of the tribunal from which the appeal is taken; and it is common to make special application to that tribunal, either to stay further proceedings or to pass an order that proceedings shall not be stayed. Such was the course in the recent English case, Barrs v. Fewkes.  The application was made to the court appealed from. The general rule is, that an appeal will not stay proceedings. 
3. Under the practice by which causes are removed from State courts to this court, the removal is in the nature of an appeal. It is a continuation of the same litigation, not a new suit, as a writ of error at common law. The mode of removal is only a matter of form. The substance of the matter is, that the cause is brought before a supervising tribunal for revision; and the jurisdiction of the United States Court is in its nature appellate.  The writ of error, therefore, is only a new stage in the cause; and accordingly an injunction should continue in force until the determination upon the writ of error, which is the ultimate determination of the original suit. 
4. It is impossible to suppose that there should not be authority in a court of equity, by a decree, to hold matters in a certain fixed position until the ultimate determination of the cause. In many cases, where, if the injunction is suspended while the appeal or writ of error is pending, all the mischief will be done which is sought to be prevented: as, ex. gr., in an injunction to stay waste by cutting down trees, the trees will be cut; in an injunction to restrain a nuisance affecting health, to abate and suppress a source of disease, disease and death will prevail; in an injunction to restrain the marriage of a ward, an irretrievable mischief may occur at once; in an injunction to restrain the publication of private letters, or any libellous matter, or to restrain the disclosure of secrets, the knowledge of which was gained in the course of a confidential employment, or anything else, the doing of which consists of a single act, if the injunction is suspended, then the whole equitable remedy is in vain.
5. So in cases at law, suppose articles have been seized on a search warrant; stolen goods, counterfeit coin, forged bank notes, implements for counterfeiting, which State laws may authorize to be seized and held for condemnation and forfeiture; and a restoration to the owner (in case of stolen goods), or a condemnation and forfeiture and destruction of them, have been decreed. If a writ of error is sued out, that supersedes the final order of restoration to the owner, or condemnation; but shall the articles therefore be given up to the person who had the guilty possession of them, or shall they still be held in the custody of the law?
6. It must be the case that there is power in a court of equity, and also, when necessary, in a court of law, to pass orders which shall have the effect to hold things as they are, and prevent any subsequent change in the situation of things which shall be disastrous to the plaintiff, or to the public, and fatal to the relief which is sought. The law of Louisiana is very explicit in this regard. 
7. What power, then, has the Supreme Court of the United States in the premises?
It has power to take such measures as may be necessary to preserve the condition of things which existed just prior to the passing of the final decree in the court below. The supersedeas attaches to so much of the final sentence as determines the ultimate rights of the party. 
8. Only final judgments and decrees can be re-examined and reversed on writs of error. The cases are numerous where this court has refused to entertain any application to deal with preliminary decrees. A striking case, in some respects analogous to the present, was that of Gibbons v. Ogden. 
9. The 23d section of the Judiciary Act of 1789 recognizes that preliminary injunctions shall stand. The statute provides that a writ of error shall be 'a supersedeas any stay of execution, in case,' &c. Executions are not to issue; that is, precepts to enforce the final judgment of the State courts are not to issue. It is only the final and ultimate rights, and not the incidental rights of parties, that writs of error are designed to vindicate.
10. The present motions are premature; for the writs of error are not returnable till the first day of next term.
11. The Act of 1793 forbids the granting of injunctions 'to stay proceedings in any court of a State.' 
Reply: 1. Delaying a motion for a supersedeas till the return day of the writ of error would frequently render the application fruitless. Such is not the practice. 
2. The power given to this court by the Act of 1789 to issue all writs necessary for its jurisdiction is not taken away by the Act of 1793, which limits the writ of ne exeat, and restrains the issuing of an injunction to a State court to stay proceedings. There are no repealing words in this statute, and repeals by implication are not favored.  The title of the act shows that no repeal was intended.
Mr. Justice CLIFFORD stated the case in detail, and delivered the opinion of the court.
^1 Miller v. Newbald, 1 East, 662; Sampson v. Brown, 2 Id. 439; Meagher v. Vandyck, 2 Bosanquet and Puller, 370; Dudley v. Stokes, 2 W. Blackstone, 1183; Jacques v. Nixon, 1 Term, 280.
^2 Throckmorton v. Church, 1 Peere Williams, 685.
^3 Hart v. Mayor, 3 Paige, 383.
^4 Stockton v. Bishop, 2 Howard, 74; Hardeman v. Anderson, 4 Id. 643; Ex parte Milwaukee, 5 Wallace, 188; Railroad Company v. Bradleys, 7 Id. 577.
^5 State v. Judge, 19 Louisiana, 168.
^6 Ex rel. Ingram v. Judge, 20 Annual, 530.
^7 Ex rel. Cain v. Judge, Ib. 574.
^8 1 Law Reports (Eq.), 392. See, also, Harrington v. Harrington, Ib. 3 Chan. 564.
^9 See General Order in House of Lords in 1807, copied in 15 Vesey, 184; Gwynn v. Lethbridge, 14 Id. 585; Willan v. Willan, 16 Id. 216; St. Paul's v. Morris, 9 Id. 316; Waldo v. Caley, 16 Id. 209; Hart v. Mayor, &c., of Albany, 3 Paige, Ch. 381, where there is some account of the English practice; also, Walburn v. Ingilby, 1 Mylne & Keene, 61.
^10 Martin v. Hunter, 1 Wheaton, 349, 350; Cohens v. Virginia, 6 Id. 410; Nations v. Johnson, 24 Howard, 204, 205; Bryan v. Bates, 12 Allen, 213.
^11 Hart v. Mayor, &c., of Albany, 3 Paige, 381; Graves v. Maguire, 6 Id. 381; Stone v. Carlan, 2 Sandford's Sup. Ct. 738; Merced Mining Co. v. Fremont, 7 California, 131; Spring v. South Carolina Ins. Co., 6 Wheaton, 519; Thompson v. McKim, 6 Harris and Johnson, 302, 331-334; Williamson v. Carnan, 1 Gill and Johnson, 184, 202, 203, 209, 210; Boren v. Chisholm, 3 Alabama, 513; Garrow v. Carpenter, 4 Stewart and Porter, 336; Coleman v. Albany Bridge, 5 Blatchford, 58.
^12 See Louisiana C. P., art. 307; Delacroix v. Villere, 11 Louisiana Annual, pp. 39 to 41; White v. Cazenave, 14 Id. 57; Knabe v. Fernot, 14 Id. 847.
^13 Bryan v. Bates, 12 Allen, 213; Nauer v. Thomas, 13 Id. 574; Fleming v. Clark, 12 Id. 191.
^14 6 Wheaton, 448; see, also, Verden v. Coleman, 18 Howard, 86; Boyle v. Zachari e, 6 Peters, 656.
^15 See supra, p. 275.
^16 Ex parte Milwaukee, 5 Wallace, 188; Railroad Co. v. Bradleys, 7 Id. 577.
^17 Ex parte Yerger, 8 Wallace, 105.