Opinion of the Court. 291 U.S. ings or otherwise. Whether the State, the relator, or the City knew of the mortgage, and whether the trustee knew of the action in quo warranto, does not appear. Before any step had been taken by the State to enforce the judgment of ouster, the then trustee under the mortgage deed of trust, a citizen and resident of New York, brought this suit in the federal district court for northern Ohio. The Chase National Bank, likewise a citizen and resident of New York, has since been substituted as trustee and plaintiff. The City of Norwalk alone was made defendant. The bill set forth in addition to the facts stated above, that the plaintiff as such trustee is entitled to the continued use of the poles, wires and electrical equipment by the Power Company; that the judgment of ouster has not yet been executed; that the Power Company is still serving the Norwalk public; that the City is threatening to destroy, or forcibly remove, the poles, wires and equipment from the streets, alleys, and public places and to prevent the operation of the system or to seek to have enforced the judgment of ouster; and that such acts would result in irreparable injury to the plaintiff. The District Court held that the plaintiff has as mortgagee a good and valid lien upon the poles, wires and electrical equipment, and the rights and franchises to use the streets, alleys and public places therefor; that "for the purpose of protecting, preserving and enforcing the lien of the mortgage" the Power Company "is and was at the time of the filing of the bill of complaint herein the owner"; that these rights were granted "in perpetuity as against any right or power of the City of Norwalk with reference thereto . . ."; and that the "franchises, rights and physical properties will be destroyed and rendered worthless" unless a permanent injunction issues. The decree enjoined the City, its officers, agents and employees, "and all persons whomsoever to whom notice of this order shall come," from destroying, or interfering with the con ! 431 Opinion of the Court. tinued operation by the Power Company of, the plant and distribution system; "from taking any steps or action of any kind whatever to cause the enforcement or carrying out by the Sheriff of Huron County, Ohio, . . . of the judgment of ouster "; and "from applying to any of the courts of the State of Ohio for any writ, process or order of any kind whatever for the purpose of enforcing and carrying out said judgment of ouster." The injunction was granted to continue only as long as the plaintiff or its successor, or holders of bonds under the mortgage, should have any interest in or lien upon the properties and franchises of the Power Company in the City of Norwalk. The Circuit Court of Appeals did not pass upon the question whether the plaintiff has, as mortgagee, an interest in or lien upon the alleged property and rights; nor upon the question whether the Power Company retains for the protection of the mortgagee, an existing right to use the streets, alleys and public places as claimed; nor specifically upon the question whether the franchises granted had expired. It held, one judge dissenting, that,' although the District Court had jurisdiction of the parties and of the subject matter, that court was not justified in granting an injunction; and it reversed the decree with directions to dismiss the bill, 63 F. (2d) 911, for the following reasons: (a) That the proceedings in the District Court came within the inhibitions of Judicial Code, § 265, in that the effect of the decree was to stay the quo warranto proceeding in the state courts. (b) That the case does not fall within the exceptions which permit a federal court to interfere with the judgment of a state court, because there was no showing that the judgment in the action in quo warranto was void for lack of jurisdiction, or was based upon fraud or upon such accident or mistake as made its enforcement unconscionable. Opinion of the Court. 291 U.S. (c) That because the plaintiff has not shown that it lacked knowledge of the action in quo warranto, or that it could not have intervened therein as mortgagee, and have asserted therein the claim which it presents now as the basis of the relief sought, it has failed to make the necessary showing of diligence. There was error in the decree entered by the District Court; but the Circuit Court of Appeals was not justified in ordering that the bill be dismissed. First. Independently of the prohibition of Judicial Code, § 265, the decree entered by the District Court was clearly erroneous in so far as it enjoined "all persons to whom notice of the order of injunction should come from taking any steps or action of any kind to cause the enforcement of the ouster in the state court." The City alone was named as defendant. No person other than the City was served with process. None came otherwise before the court. The prayer of the bill sought relief solely against the City and "its officers, officials, agents, employees and representatives." It is true that persons not technically agents or employees may be specifically enjoined from knowingly aiding a defendant in performing a prohibited act if their relation is that of associate or confederate. Since such persons are legally identified with the defendant and privy to his contempt, the provi 2 2 The prayer is that "the City of Norwalk, and the officers, officials, agents, employees and representatives of said defendant" be enjoined "from in any manner interfering with or interrupting the continued operation of the plant and electrical distribution system of the Ohio Electric Power Company, in the streets, alleys and other public places of the City of Norwalk and from taking any steps or doing any act to dismantle, wreck or remove any part of said system. . ." and "from taking any steps or action of any kind whatever to cause the enforcement or carrying out by the Sheriff of Huron County, Ohio, or any of his deputies, or by any other officer of any of the courts in the State of Ohio, of the judgment of ouster. . . ." (The latter prohibition to apply also to the attorneys of the City.) 431 Opinion of the Court. sion merely makes explicit as to them that which the law already implies. See In re Lennon, 166 U.S. 548. But by extending the injunction to "all persons to whom notice of the injunction should come," the District Court assumed to make punishable as a contempt the conduct of persons who act independently and whose rights have not been adjudged according to law. See Alemite Mfg. Co. v. Staff, 42 F. (2d) 832. Under the clause inserted in the decree, officials of the State of Ohio might be proceeded against for contempt, if they should apply to the state court to enforce its judgment, although acting solely in the performance of their official duty. To subject them to such peril violates established principles of equity jurisdiction and procedure. Scott v. Donald, 165 U.S. 107, 117; Hitchman Coal & Coke Co. v. Mitchell, 245 U.S. 229, 234. Those principles require that the clause be limited to confederates or associates of the defendant. Second. On the other hand, the decree of the Circuit Court of Appeals was clearly erroneous in so far as it refused to enjoin the "city and its agents from forcibly removing the wires and poles without state warrant." The trustee claimed that it had a valid mortgage lien upon the poles, wires and electrical equipment, and upon the right and franchise in perpetuity to use them on the streets, alleys and public places; and the bill alleged that removal by the City of the poles and wires would result in irreparable injury to the trustee. Neither the trustee nor the City had been a party, or privy, to the litigation in the state courts. These courts did not purport to pass 3 Harvey v. Bettis, 35 F. (2d) 349; Donaldson v. Roksament Stone Co., 178 Fed. 103; Bliss v. Atlantic Handle Co., 212 Fed. 190; Omeliah v. American Cap Front Co., 195 Fed. 539, 540. Compare Tosh v. West Kentucky Coal Co., 252 Fed. 44, 48. 'Compare United States Playing Card Co. v. Spalding, 92 Fed. 368, 369. Opinion of the Court. 291 U.S. upon the validity of the trustee's claim; and in no state court was that claim in litigation. However broad the scope of the prohibition prescribed by Judicial Code, § 265, it could not preclude the federal court from protecting the trustee's alleged property from wanton destruction by one not a party or privy to the judgment of ouster. The contention is that in essence this "is a suit by a mortgagee to obtain a readjudication of the law and facts adjudicated by a state court of competent jurisdiction in a proceeding to which the mortgagor was a party"; and that, since the controlling question is one of the construction and application of statutes of Ohio, a federal court would, in any event, follow the decision of the highest court of the State. It is true that, in the absence of special circumstances, federal courts consider themselves bound by the construction theretofore given by the highest court of a State to its statutes. But, under well settled principles of jurisdiction, governing all courts, a decree against a mortgagor with respect to property does not bind a mortgagee whose interest was acquired before the commencement of the suit, unless he was made a party to the proceedings. Old Colony Trust Co. v. Omaha, 230 U.S. 100, 122.5 For in every case where a mortgage was given before the litigation against the mortgagor was instituted, the mortgagee is entitled to have a decision determining his rights rendered on the basis of the facts and considerations adduced by him. Obviously, the facts and considerations affecting the trustee's rights may be differ 'Louisville Trust Co. v. Cincinnati, 76 Fed. 296; Old Colony Trust Co. v. Tacoma, 219 Fed. 775, 776; Illinois Trust & Savings Bank v. Des Moines, 224 Fed. 620, 624; Williamson v. Clay Center, 237 Fed. 329, 335. Compare Dull v. Blackman, 169 U.S. 243; Bigelow v. Old Dominion Copper Co., 225 U.S. 111; Postal Telegraph Co. v. Newport, 247 U.S. 464, 476; Doctor Jackpot Mining Co. v. Marsh, 216 Fed. 261. |