The opinion of the court was delivered
by Strong, J.
When the motions for preliminary injunctions were made in these cases, and all the' judges of the Supreme [524]*524Court 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. I 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 done 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.5 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 ths_act of__Oongress 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 be 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 found. Reference has, indeed, been made to our act of assembly of June 16, 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, and prejudicial to the interests of the community or the rights of individuals;” but until now it has never been supposed that this act extends the preventive power of this court beyond that possessed by any English chancellor. No one has ventured to assert that every civil wrong may be restrained by injunction, and that a judge sitting in equity can enjoin against any act that a common law court and jury can redress. It was jurisdiction and power in equity that the legislature intended to bestow upon our courts; and it has never been seriously claimed that they bestowed more than is possessed and exercised by courts of equity in England and in other States. But when, before these cases, was an 5 injunction ever granted to restrain the commission of a merely \ personal tort? What chancellor ever asserted he had such \power?) It was hinted in the argument that the power must M be Vested in this court, because the privilege of the writ of >! habeas corpus has been suspended in certain cases. The hint [525]*525will not bear examination. How can the suspension of the writ of habeas corpus, either by Congress or any branch of the Federal government, enlarge the jurisdiction of this court? Or how can the restoration of this privilege curtail its jurisdiction ? The extent of the powers of every court in this State is defined by State law. It is not in the power of Congress to enlarge it, either by direct or indirect action. Besides, if the suspension of the privilege of the writ of habeas corpus could confer upon a State court a power to enjoin against an arrest (a power which, without the suspension, it would not possess), then the Constitution of the United States, in authorizing it in cases of rebellion or invasion, _when, the public safety may require it¡ has merely converted a habeas corpus into an injunction, and substituted a bill of equity for a common law writ. Then the object sought to be accomplished by the constitutional provision has utterly failed. Manifestly, the Constitution contemplates' the possible necessity of arrests without the interference of courts in times of rebellion or invasion, and it has provided for such cases by authorizing a denial of the privilege of the writ of habeas corpus. But what does this amount to, if the very act of taking away the writ enlarges the power of State courts of equity, and justifies them in interfering to prohibit the arrests. I will not, however, pursue this subject further; I mention it at all only because I would not have it thought that I admit the power of this court to interfere by injunction, even if the defendants proposed wrongfully to force the complainants into the military service of the United States.
When the injunctions were ordered in these cases I endeavored 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 has raised even a doubt of the correctness of the opinion I then gave. Very much might be added to what I said in vindication of the constitutional power of Congress to enact the law, and in refutation of the objections urged against it; but I should hardly be justified in entering again upon a discussion of that subject before these eases came up for final decrees.
. It was strenuously insisted at the argument that the present motions should not be entertained, because the defendants have neither demurred to the bill, nor -put in an answer, nor pre'sented 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. [526]*526In answer to this it may be said that whatever may be the extent of the rule thus invoked iq 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. Cha. 173 ; Canal Co. v. Railroad Co., 4 Grill & 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.
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The opinion of the court was delivered
by Strong, J.
When the motions for preliminary injunctions were made in these cases, and all the' judges of the Supreme [524]*524Court 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. I 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 done 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.5 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 ths_act of__Oongress 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 be 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 found. Reference has, indeed, been made to our act of assembly of June 16, 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, and prejudicial to the interests of the community or the rights of individuals;” but until now it has never been supposed that this act extends the preventive power of this court beyond that possessed by any English chancellor. No one has ventured to assert that every civil wrong may be restrained by injunction, and that a judge sitting in equity can enjoin against any act that a common law court and jury can redress. It was jurisdiction and power in equity that the legislature intended to bestow upon our courts; and it has never been seriously claimed that they bestowed more than is possessed and exercised by courts of equity in England and in other States. But when, before these cases, was an 5 injunction ever granted to restrain the commission of a merely \ personal tort? What chancellor ever asserted he had such \power?) It was hinted in the argument that the power must M be Vested in this court, because the privilege of the writ of >! habeas corpus has been suspended in certain cases. The hint [525]*525will not bear examination. How can the suspension of the writ of habeas corpus, either by Congress or any branch of the Federal government, enlarge the jurisdiction of this court? Or how can the restoration of this privilege curtail its jurisdiction ? The extent of the powers of every court in this State is defined by State law. It is not in the power of Congress to enlarge it, either by direct or indirect action. Besides, if the suspension of the privilege of the writ of habeas corpus could confer upon a State court a power to enjoin against an arrest (a power which, without the suspension, it would not possess), then the Constitution of the United States, in authorizing it in cases of rebellion or invasion, _when, the public safety may require it¡ has merely converted a habeas corpus into an injunction, and substituted a bill of equity for a common law writ. Then the object sought to be accomplished by the constitutional provision has utterly failed. Manifestly, the Constitution contemplates' the possible necessity of arrests without the interference of courts in times of rebellion or invasion, and it has provided for such cases by authorizing a denial of the privilege of the writ of habeas corpus. But what does this amount to, if the very act of taking away the writ enlarges the power of State courts of equity, and justifies them in interfering to prohibit the arrests. I will not, however, pursue this subject further; I mention it at all only because I would not have it thought that I admit the power of this court to interfere by injunction, even if the defendants proposed wrongfully to force the complainants into the military service of the United States.
When the injunctions were ordered in these cases I endeavored 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 has raised even a doubt of the correctness of the opinion I then gave. Very much might be added to what I said in vindication of the constitutional power of Congress to enact the law, and in refutation of the objections urged against it; but I should hardly be justified in entering again upon a discussion of that subject before these eases came up for final decrees.
. It was strenuously insisted at the argument that the present motions should not be entertained, because the defendants have neither demurred to the bill, nor -put in an answer, nor pre'sented 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. [526]*526In answer to this it may be said that whatever may be the extent of the rule thus invoked iq 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. Cha. 173 ; Canal Co. v. Railroad Co., 4 Grill & 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 decisions- 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 itself had been overlooked.
Thus, in the case first above cited, Chancellor Kent allowed a motion to be made to dissolve an injunction granted by himself for the want of equity in the bill, though the defendant had not answered. Nor does it appear that he had submitted any affidavits. And in the Canal Co. v. Railroad Co., above cited, it was said by Chancellor Bland, in reference to a motion to dissolve an injunction, that “ if it should appear the facts as stated in the bill, looking to the bill alone,, gave rise to no equity, it is very certain that the injunction would be dissolved whether the defendants had answered or not, or however imperfectly they might have answered.” The contest in these [527]*527cases relates solely to the question whether the complainants have any equity on their own showing. Clearly they have not, if the act of Congress is constitutional. Now, it is not denied that, if the defendants, before these motions were made, had put in answers admitting all the facts charged in the bills, as they might have done, it would be the duty of the court' to dissolve the injunctions, if the facts raise no equity in favor of the complainants, and that such a course would be perfectly regular. In what particular would the conscience of the court be better informed had such answers been put in, than it is now? At most, then, the objection urged with so much vehemence to entertaining the present motions, the objections that the cases stand now as they did when the injunctions were granted, is but the minutest technicality, and interposed not in furtherance of justice, but to defeat jt. In truth, however, it does not rise even to the dignity of a technicality, for the present motions are founded, not upon a denial of anything that could be verified by affidavit, but upon a want of equity in the bills, and to such motions the rule requiring answers contróverting the facts alleged by the complainants is totally inapplicable.
_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 26, 1842 (P. L. 433, sec. 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 judges, not to decide but -to advise what disposition shall be made of them. This he has done from respect to them and because they advised when, the injunctions were ordered. It is not easy to see that any other course would have been decorous. The motions are, therefore, pending. Nothing can be gained or secured by a continuance of the injunctions. The bills on their face-show that the complainants must have gone into the military service of the United States, and beyond any possible interference of the defendants, or that they had commuted, or had been exempted, before the injunctions were [528]*528ordered, and even before the motions for injunctions had been argued.
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 resistence 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 eases, 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 case, 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 Pittsburg in October term last. It was supported by no affidavit, nor had there been any change of the record, or any new pleadings. Yet not a judge hesitated to entertain the motion, or to hear an argument in its support and another against it. If such motions are allowed in reference to final judgments, how can it consistently be said that a motion to dissolve injunctions ordered on interlocutory motion, based- on the reason that the bill exhibits [529]*529no equity, may not be entertained, unless accompanied by affidavits denying, not the facts, but the equity ?
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 ta*ken out any injunctions. They have rested satisfied with the orders. The matter, therefore, remains perfectly within the jurisdiction of the court, even if 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 oases 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 eases should be rescinded, and that the motions for the injunctions should he 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.