557 S.W.2d 25 (1977)
STATE ex rel. GIRARD et al., Petitioners,
v.
Raymond T. PERCICH,[1] Sheriff of the City of St. Louis, Respondent.
Nos. 38271 to 38278 and 38837 to 38841.
Missouri Court of Appeals, St. Louis District, Division Three.
August 30, 1977.
Motion for Rehearing and/or Transfer Denied October 11, 1977.
*28 Jerome J. Duff, James E. Heckel, St. Louis, for petitioners.
John P. Emde, Armstrong, Teasdale, Kramer & Vaughan, St. Louis, for respondent.
GUNN, Judge.
Petitioners, members and officers of Brewery Drivers and Helpers, Local Union No. 133 of St. Louis affiliated with the International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America (the Union), contest their convictions for criminal contempt in this original habeas corpus proceeding. This appeal involves thirteen cases consolidated for review and concerns thirteen separate petitions. The convictions are based on a finding by Circuit Judge Carl R. Gaertner that specific conduct by individual members, as well as general strike policies promulgated by the executive board of the Union, were willful and deliberate violations of a lawful restraining order issued by him. We believe the evidence supports the finding as to all petitioners, except Robert Woodson.
The incidents involved in these cases arose out of a long-lived and admittedly virulent strike by the Union against the St. Louis metropolitan wholesale beer distributors. On April 22, 1976, suit was filed in St. Louis City Circuit Court by Lohr Distributing Co., Inc. (Lohr), exclusive distributor of Anheuser-Busch products within the City of St. Louis, against specified persons affiliated with the Union in both their individual capacity and as representatives of a class consisting of the membership of the Union. The petition, which sought a restraining order against the Union, charged that the strikers had engaged in numerous unlawful activities including: mass and unruly picketing for the purpose of harassing and obstructing Lohr's customers; harassment, intimidation and threats of physical violence against Lohr's employees and customers; following Lohr's customers from its premises and stopping the customers on public streets in order to assault, abuse and threaten them to coerce a cessation of business with Lohr; and various other acts or threats of physical violence and property damage.[2]
*29 Judge Gaertner issued a restraining order that same day forbidding Union members as well as any other person having notice of the order from:
"a. Obstructing, blocking, stopping or otherwise in any manner interfering with any person or vehicle while the same is entering onto or exiting from any property owned or operated by plaintiff, specifically, plaintiff's facility at 3820 Dr. Martin Luther King Drive, St. Louis, Missouri.
"b. Interfering in any manner, directly or indirectly, with the operation or use by plaintiff or by plaintiff's employees or by plaintiff's agents, of any truck, tractor, trailer or motor vehicle owned, leased or operated by plaintiff or by its said employees or by its agents.
"c. Damaging, abusing or in any manner interfering with the use of any real or personal property owned or operated by plaintiff or by threatening to damage, to abuse or to interfere with the use of any of plaintiff's aforesaid property.
"d. Assaulting, harassing, threatening, injuring, battering, coercing, intimidating or threatening to assault, to harass, to threaten, to abuse, to injure, to batter, to coerce or to intimidate any of plaintiff's customers or any agent, servant or employee of plaintiff while the same is having or attempting to have any business contact with plaintiff.
"e. Interfering directly or indirectly with the purchase, sale, receipt, delivery or distribution of Anheuser-Busch beer products by plaintiff from its facility at 3820 Dr. Martin Luther King Drive, City of St. Louis.
"f. Having in excess of three persons at any one time picketing, congregating or otherwise meeting at, near or about any property owned or operated by plaintiff, at 3820 Dr. Martin Luther King Drive in the City of St. Louis."
In addition, an order to show cause why a temporary injunction should not be issued was filed and a hearing date was set. Petitioners in their answer denied all allegations of violence but admitted that the nominal parties as well as the members of the class had received notice of the restraining order.
On April 28, 1976, the Lohr petition was amended to include a second count on behalf of Grey Eagle Distributors, Inc. (Grey Eagle), the exclusive Anheuser-Busch distributor for St. Louis County. Count II alleged essentially similar acts and threats of violence, harassment, intimidation and property damage directed against Grey Eagle, its employees and customers as alleged in Count I against Lohr, its employees and customers.
Specifically, Count II alleged that Grey Eagle's trucks carrying beer from the Anheuser-Busch plant were attacked with various dangerous projectiles on a public highway while on route to its premises; that a loaded tractor trailer truck owned by Grey Eagle was caused to overturn after a striker hurled a baseball bat through its windshield; that the offices of Grey Eagle were ransacked; that telephone threats were made against the lives of Grey Eagle employees; and that the home of the Grey Eagle chairman was firebombed. It was admitted that these acts, except for the tractor trailer incident, were performed by unknown persons. It was alleged, however, that they were directly related to the strike.
Judge Gaertner immediately issued a second restraining order for the relief of Grey Eagle. Its essential terms were identical to the original order except for the addition of paragraph (g) which forbade the Union "[f]rom picketing, congregating or otherwise meeting, at, near or in the vicinity of the intersection of Dorsett Road and Millpark Avenue in St. Louis County, Missouri."[3] The April 22 order was to remain *30 in effect. The hearing on the order to show cause why a temporary injunction should not be issued was continued numerous times through the month of May by agreement of the parties, but the restraining orders continued in effect.
On May 28, 1976, Lohr and Grey Eagle (plaintiffs) filed a motion for the issuance of citations for contempt and body attachments against petitioners for violations of the restraining orders. The main thrust of the alleged violations was that continued coercion, harassment and intimidation of plaintiffs' customers resulted from the Union's policy of following them from plaintiffs' loading docks, where they purchased beer, to their places of business. Additionally, random acts of vandalism to the property of customers were alleged. On June 1, 1976 a hearing was commenced on this motion which continued until June 3. At its conclusion Judge Gaertner found probable cause to issue citations of contempt against petitioners and ordered them to appear on June 10, 1976 to show cause why they should not be held in civil and criminal contempt of court. He further ordered that each petitioner be served with a notice of prosecution.[4] Attorney for the plaintiffs was appointed special prosecutor to try the charges. At the June 10 hearing further testimony was offered, and the parties stipulated that all evidence presented at the June 1-3 hearing was admitted for the court's consideration.
In reciting the facts we shall not dwell on the many sordid incidents detailed in this voluminous record which did not form the basis for contempt convictions. But the course of this strike, both before and after the issuance of the restraining orders, was marked with fulsome instances of violent and destructive activity directed at plaintiffs, their competitors, and the customers of both. Some of these actions could be directly attributed to Union members and others could not. Nevertheless, the acts of violence and destruction were well publicized in the local news media and became common knowledge in the community. During this strike an atmosphere of trepidation existed among members of the community.[5] Enmity exploded into vacuous acts. Trucks carrying beer were attacked on public streets with rocks, bricks, ball bearings and other dangerous projectiles. Customers selling plaintiffs' products had the windows of their vehicles and establishments shattered and concrete poured into their plumbing fixtures. There were numerous instances of direct threats against customers because they continued to handle plaintiffs' products. Many customers ceased doing business with plaintiffs during the strike out of fear for their persons and property. Others who continued dealing with plaintiffs employed armed security guards and carried weapons for their own protection. Routine trips to purchase beer became armed caravans through public streets, accompanied by armed guards and police, pursued by car loads of strikers. Customers closely followed by strikers' vehicles often panicked and resorted to dangerous traffic violations in their hegira and efforts to escape their pursuers. For example, customers would flee at speeds in excess of lawful limits and resorted to driving the wrong way on one way streets, oftentimes with their efforts unavailing. This extremely tense situation presented a real and present danger to the well being and safety of the direct participants in this labor dispute as well as innocent members of the community. It is within this context that the evidence relating to the specific episodes leading to the contempt citations must be viewed.
*31 Three specific instances of intimidation and harassment of plaintiffs' customers by individual petitioners, in addition to the promulgation of the following policy by the executive board of the Union, were cited in the trial court's finding of facts as the willful violations of the restraining order leading to the contempt convictions. In the first instance, petitioners Wray Hambrick, Jerry Becht, Michael Manion and Ronald McKenzie in concert with one another and other unnamed individuals were found to have "cause[d] two automobiles to be stopped in front of and in the path of a vehicle occupied by one Harrison Richards and one Charles M. Henkle, a customer of plaintiff Grey Eagle Distributing Company, and did obstruct and prevent the forward movement of said vehicle until said customer agreed to and did return to said plaintiff the beer he had just purchased and loaded upon his vehicle." The petitioners' conduct was found to have been done "wilfully and deliberately for the purpose of intimidating, coercing and harassing" plaintiff's customer.
Mr. Henkle, operator of Shirley's Package Liquor Store in St. Louis County, in an attempt to secure Anheuser-Busch products for his store, went to Grey Eagle on May 21, 1976 in a rented truck with his part-time employee, Harrison Richards. They crossed a picket line to enter Grey Eagle premises and did so without incident. After loading the truck with beer they left and proceeded up Millpark Avenue, the dead end street which serves as the only route of egress from Grey Eagle. Henkle and Harrison passed the pickets at the Grey Eagle gate, once again without incident. When they approached the stop sign at the corner of Millpark Avenue and Dorsett Road (approximately two blocks from the Grey Eagle facilities), two automobiles operated by unidentified persons pulled in front of them and blocked their path. A gaggle of ten to twelve strikers approached the truck, informed the occupants they had crossed their picket line and told them to "take the beer back" for a refund. The strikers' demand was tractably complied with and the beer was returned. When Henkle and Harrison departed again the strikers flagged them down at the same intersection and inspected the truck to confirm that all of the beer had been unloaded. No vehicles obstructed their path on this second occasion. There was no explicit oral threat of violence communicated in either incident, and the conversation between the parties was described as peaceful.
The testimony of petitioners regarding this incident was somewhat different. They maintain that no vehicles blocked Henkle's truck either time he left Grey Eagle. According to their testimony the sole reason that his truck came to a halt in their vicinity was the intersectional stop sign at Millpark and Dorsett. They say that three or four of them merely walked over to the truck once it had stopped and asked the gentlemen to return the beer after explaining the strike situation and its effect on their jobs. They deny that the parties were threatened or intimidated in any way to force compliance with their request. When the truck approached the intersection for the second time, according to petitioners, the driver stopped of his own volition. At this time the strikers offered to give Henkle $35 to reimburse him for the rental of his truck, but he refused to accept any money. Though the four petitioners convicted in connection with this incident deny any obstruction of the vehicle's path or any intimidation of its occupants, all admit being present at the scene.
The second incident leading to a contempt conviction involved a window breaking episode at the Westwood Grocery in Glendale. On April 30, 1976, Donald Hanneke, the operator of the grocery, after purchasing beer from Grey Eagle, was followed by unidentified strikers the entire route back to his store. On May 4, at approximately 11:30 p. m. bricks were thrown through the store's plate glass windows.
William Kratz, Jr., a neighbor living 150-200 feet from the store, heard the crash of shattering glass and immediately telephoned the Glendale police department. A *32 patrol car driven by Lieutenant J. M. Delling arrived thirty seconds to one minute later. In the meantime, Kratz observed a large vehicle speed away from the grocery. It was dark, however, and Kratz's view was partially obstructed by trees so the best description of the vehicle he could give police was that it resembled a light colored station wagon, van or camper. Kratz was still on the telephone with the police dispatcher when Lieutenant Delling's car arrived. He was able to alert the officer of the path the fleeing vehicle had taken. Lieutenant Delling pursued the vehicle some fifteen to thirty seconds behind.
According to Lieutenant Delling's testimony the dispatcher described the vehicle as being a light colored camper. After he had driven about two blocks from the grocery, he observed a vehicle fitting that description driving somewhat suspiciously as if it were lost. He stopped the vehicle and asked the two occupants for their identification. At this time he learned that the men were petitioners McKenzie and Woodson. Initially, they said that they were looking for a neighborhood tavern. Lieutenant Delling, however, noticed that McKenzie appeared visibly shaken and began to question him out of Woodson's hearing. When asked about throwing bricks, McKenzie, in something more than a lapus linguae, replied "F____ him. The son-of-a bitch crossed our line, and I want to protect my rights." Prior to this volunteered statement, Lieutenant Delling had not mentioned anything even remotely connected with beer deliveries, the beers strike, or, specifically, Hanneke's broken windows.[6] Nevertheless, McKenzie continued explaining, in Delling's words "that he was going to fight for his rights, that he had a family, that Mr. Hanneke had crossed their picket line."
Woodson made no statement, but both men were arrested for suspicion of burglary. Their jackets and shoes were confiscated and sent to the County Crime Laboratory for comparison with evidence found at the market. McKenzie's jacket was discovered to have mortar splatches on it.
Woodson and McKenzie denied breaking any windows and maintained that they had been looking for a tavern named Frank's Little Inn. However, except for the grocery, the area is completely residential, and there are no taverns in Glendale. They testified that they later learned the tavern they sought was located in Kirkwood, not Glendale. Moreover, McKenzie denied making any statement to police and explained that the mortar stain was on his jacket because he had helped Woodson lay bricks the previous weekend.
The final specific incident which the court found to violate its restraining order occurred on May 24, 1976, when petitioners Michael Manion and Ron Hosfeld in concert with others "did follow a truck operated by one Andy Garanella from Grey Eagle Distributing Company to Santoro's Restaurant located at Big Bend and Millbrook in University City, Missouri, over and along numerous public streets and did participate in the surrounding of said truck by vehicles operated and occupied by members of Local 133 while said truck was being operated in the public thoroughfares in such a manner that one striker's vehicle was immediately ahead of, one striker's vehicle immediately to the side of and two or more strikers' vehicles immediately to the rear of said truck, and that after said truck reached its destination as aforesaid, said defendants did remain conspicuously in the area where said truck was being unloaded." As with the previous three incidents the court found that the petitioners' actions violated that portion of the restraining order which forbade harassing, intimidating or coercing plaintiffs' customers.
Gerald Koester testified that he followed the truck operated by Andy Garanella from Grey Eagle to Santoro's and took photographs *33 of the vehicles pursuing Garanella.[7] Koester observed four to five vehicles which at various points along the route moved to the front, side and rear of Garanella's truck so that he was periodically surrounded on three sides by strikers' vehicles. Garanella did not testify, but the substance of what his testimony would be was entered into the record by stipulation. This stipulation largely corroborated Koester's testimony as to the existence of "bracketing"bracketing being the act of surrounding a moving vehicle with other vehicles to control the pace and direction of movement of the bracketed vehicle. Additionally, it established that the followers' actions were perceived by Garanella to be harassing, intimidating and frightening. It was conceded, however, that no physical harm befell him as a result of this incident. During his testimony, Petitioner Girard, chief executive officer of the Union, acknowledged that bracketing would be wrong; that it could cause an accident.
Manion and Hosfeld admitted that they and others followed Garanella to Santoro's, but denied that they intentionally bracketed his vehicle or intended to harass or frighten him. They acknowledged, however, that along the route various strikers' vehicles may have been adjacent to or ahead of Garanella's truck through the normal course of driving. They further admitted remaining in Santoro's parking lot while the truck was being unloaded.
The final specification of contempt charged that petitioners, John Girard, John Taylor, Eugene Grossman, Charles Kelting, Louis Feldhaus and Dudley Alsop, as members of the Union's executive board, willfully violated that portion of the restraining order forbidding intimidation, harassment or coercion of plaintiffs' customers by adopting and promulgating the Union's policy of following customers from plaintiffs' places of business to their destinations.[8]*34 The court found that this policy, which was admittedly conspicuously engaged in, because of the widespread public knowledge of the acts of vandalism and violence it precipitated was intended to cause and did cause fear to customers in direct violation of the restraining order.
Petitioners admit that the practice of following was engaged in; that the executive board adopted this practice as the Union's policy and that the executive board, under its cachet, encouraged participation in the practice by its members. It is their contention, however, that the policy served a legitimate labor dispute function in that it gave the Union a means to learn the identity of those persons who crossed their picket line to buy beer from the struck employers. In this connection they argue that following customers was a long standing policy of Local 133, as well as other local unions, and had been used in previous strikes where struck employers had sold their products directly from the docks. They maintain that the policy was employed to serve two valid purposes. First, it was to procure the names and license numbers of the customers for later publication in the Union newspaper "unfair list." This list was used to alert other union members that the persons and businesses whose names appeared thereon had crossed a picket line and were to be boycotted because they were unfair to organized labor. Secondly, the Union maintained that it was used to discover and to expose those customers who engaged in the illegal practice of "bootlegging" beer. Union members testified that on occasion customers holding valid retail liquor licenses would purchase truck loads of beer from the wholesalers and then would deliver this *35 beer to more timorous establishments, some of which the Union contended did not have valid retail licenses. It was purportedly to prevent this illegal practice that the Union members followed customers all of the way to their businesses and watched them unload their beer even when they knew the name and address of the customer beforehand. There was but one hearsay incident of purported "bootlegging" reported.
Petitioners testified repeatedly that in adopting and implementing the policy of following, violence of every kind was expressly prohibited. Nonetheless, there were frequent episodes of dangerous and violent conduct accompanying instances of following both before and, to a lesser extent, after the restraining orders were issued. One customer, testified that on two occasions prior to the restraining orders and once after their issuance he was followed from Lohr's by three or four carloads of strikers. While operating on public streets they would maneuver their vehicles in front of his trucks and at times drive at speeds of less than five miles per hour. At other intervals along the route they would jam on their brakes or come to complete halt in traffic lanes in an effort to bring about collisions between their vehicles and the beer trucks. In addition, the trucks were intermittently bombarded with rocks and ball bearings; roofing nails were strewn on the roadway. Because of these and similar acts of violence occurring during the following and because acts of vandalism occurring shortly thereafter, customers testified that they felt intimidated by and were fearful of the following even when it was ostensibly peaceful.[9]
It is the Union's position that the policy of following as adopted was not in violation of the terms of the restraining order. In fact, on the advice of counsel to that effect, the policy was continued even after Judge Gaertner found probable cause to believe that the policy violated the restraining order and warned petitioners that "any continuation of said practice during the period preceeding the final determination of this matter will be conducted at the peril of the defendants."[10]
On June 24, 1976, Judge Gaertner found petitioners guilty of criminal contempt for the violations previously described and imposed punishment as follows:

     Contemnor             Case No.         Confinement      Fine
     John J. Girard        38271            forty days       $10,000
     John E. Taylor        38272            forty days        10,000
     Eugene P. Grossman    38275            ten days           2,500
     Charles E. Kelting    38274            ten days           2,500
     Louis H. Feldhaus     38273            ten days           2,500
     Dudley Alsop          38276            ten days           2,500
     Ronald McKenzie
      under paragraph 4 of 38277            thirty days        2,500
       Court Order
      under paragraph 5 of 38841            none               2,500
       Court Order
     Robert Woodson        38278            thirty days        2,500
     Wray Hambrick         38838            none               2,500
     Jerry Becht           38837            none               2,500
     Michael Manion
      under paragraph 5 of 38840            none               2,500
       Court Order
      under paragraph 6 of 38840            none               2,500
       Court Order
     Ron Hosfeld           38839            none               2,500

Those petitioners who were sentenced to jail terms immediately filed petitions for writs of habeas corpus with this court. Preliminary writs were granted on June 25, 1976, and petitioners were freed on bond pending oral argument and final judgment.
On December 28, 1976 those petitioners who received fines, after admitting their ability to pay, refused to do so in open court.[11] Their purpose in doing so was to test the court's original finding of contempt by way of this habeas corpus proceeding. After each was sentenced to jail pending payment of the fine, preliminary writs were sought and granted for those petitioners as well.
*36 Petitioners attack their convictions on three separate bases. First, they contend that the State court was without jurisdiction to regulate the Union's strike policy by means of a restraining order because of preemption by federal labor law. Secondly, they contend that the restraining orders were so vague that they were not apprised in advance of what conduct violated its terms. Finally, they contend there was insufficient evidence to support their convictions.
Before reaching these contentions, it is first necessary to indite the fundamental precepts of the law of contempt which bear on the denouement of this decision. Constitutional courts of common law jurisdiction have both a statutory and an inherent power to punish persons guilty of willful disobedience of their lawful orders. Section 476.110 RSMo.1969; Osborne v. Purdome, 224 S.W.2d 1005 (Mo.banc 1951); cert. denied, 343 U.S. 953, 72 S.Ct. 1046, 96 L.Ed. 1354 (1952); State on Inf. of McKittrick v. Koon, 356 Mo. 284, 201 S.W.2d 446 (banc 1947); Chemical Fireproofing Corp. v. Bronska, 553 S.W.2d 710 (Mo.App.1977); Houston v. Hennessey, 534 S.W.2d 52 (Mo. App.1975). While the primary purpose of civil contempt is to protect the parties to the litigation for whose benefit the order was issued, the primary purpose of criminal contempt is to protect, preserve and vindicate the power and the dignity of the law itself. Teefey v. Teefey, 533 S.W.2d 563 (Mo.banc 1976). If courts could not punish those who treat with insolence their lawful orders, the judicial system would be rendered ineffective and would lose the faith of the people as the preferred means of resolving their disputes. Judgments could be accepted or rejected at whim with impunity and would be essentially advisory in nature, Chemical Fireproofing Corp. v. Bronska, supra, resulting in a discomfiture of the judicial process.
Petitioners herein are convicted of indirect or constructive criminal contempt, meaning that it arose out of matters occurring outside of the presence of the court[12] but which nonetheless tended to belittle, obstruct or prevent the administration of justice. Unlike direct contempt, which may be punished summarily, one charged with indirect contempt is entitled to reasonable notice of the charges against him and to a hearing on those charges. Mechanic v. Gruensfelder, 461 S.W.2d 298 (Mo.App.1970); Curtis v. Tozer, 374 S.W.2d 557 (Mo.App. 1964); G. v. Souder, 305 S.W.2d 883 (Mo. App.1957). The alleged contemnor is afforded many of the protections of a criminal defendant though a contempt proceeding is not strictly speaking criminal, but, rather, is sui generis. Osborne v. Purdome, supra. The State, nevertheless, has the burden of proving the elements of criminal contempt beyond a reasonable doubt just as in a criminal prosecution. State ex rel. Wendt v. Journey, 492 S.W.2d 861 (Mo.App. 1973); Ex Parte Miles, 406 S.W.2d 107 (Mo. App.1966). The elements are actual knowledge of the restraining order [13] and willful conduct in violation of its terms. Chemical Fireproofing Corp. v. Bronska, supra; Mechanic v. Gruensfelder, supra. The scienter requirement of the second element is traditionally the most difficult to establish, but its proof is essential, as the existence of contempt is measured largely by the intent with which the contested conduct was committed. Where there is no intent to defy and degrade the order of the court, there is no contempt even in the face of seemingly contumacious conduct. McMullin v. Sulgrove, 459 S.W.2d 383 (Mo.banc 1970); State v. Koon, supra; State ex rel. Wendt v. Journey, supra.
Once the court has found an individual in contempt there is no right of appeal though the validity of the judgment may be challenged in a habeas corpus proceeding. Curtis v. Tozer, supra. It is the *37 habeas court's duty to review the evidence against each petitioner and determine "whether that evidence supports the finding, beyond a reasonable doubt, that the petitioner acted as stated in the specifications found as to him or her. In so doing it is unnecessary to consider all the specifications found as to that petitioner. The purpose of the writ is to test the legality of the restraint. It follows that if the determination stated above is supported as to even one of the several specifications contained in the judgment entered as to a petitioner, then that petitioner is not illegally restrained and, as to that individual, our writ should be quashed. On the other hand, if not even one of the several specifications found as to a petitioner is sustained, beyond a reasonable doubt, by the evidence then the petitioner must be discharged." Curtis v. Tozer, supra at 581.
In a habeas proceeding challenging the sufficiency of the evidence, we do not review the record de novo, but are limited to a determination of whether the trial court's findings are supported by the evidence. Ex Parte Neal, 507 S.W.2d 674 (Mo.App.1974). In making that determination, we must accept the evidence along with all favorable inferences which reasonably may be drawn therefrom in the light most favorable to the court's judgment. All facts and inferences to the contrary are to be disregarded. State v. Franco, 544 S.W.2d 533 (Mo.banc 1976). It is not the habeas court's function to weigh the evidence where it is in conflict or to resolve issues of credibility; we look only to see if there was substantial evidentiary support for the court's finding.
Furthermore, criminal contempt may be proved by circumstantial evidence so long as the facts are consistent with one another and the hypothesis of guilt and inconsistent with a reasonable hypothesis of innocence. Mechanic v. Gruensfelder, supra; Ex Parte Miles, supra. Mere presence by a petitioner when conduct in violation of a court order occurred or mere opportunity to engage in the conduct is insufficient to support a conviction for contempt. State v. Castaldi, 386 S.W.2d 392 (Mo.1965). Nevertheless, proof of participation in forbidden activity may rest upon accumulated interdependent facts, no one of which creates more than a suspicion of guilt. State v. Jackson, 519 S.W.2d 551 (Mo.App.1975). Where there is concerted group action, as here, it is important to remember that any affirmative participation as a member of a group in activity which violates the court order will subject each participant to contempt liability so long as he acts with the requisite knowledge and intent. See State v. Reynolds, 521 S.W.2d 486 (Mo.App.1975). It is no defense that the individual participant's conduct, when isolated from that of the group as a whole, would not violate the court's order. The foregoing applies with equal weight to those who direct, control, plan and supervise activity in defiance of the court order. The true instigators may not be absolved by maintaining the appearance of remaining above the fray. One who conspires to induce contemptuous conduct by others which does in fact occur may be equally guilty with those who actually engage in that conduct. Curtis v. Tozer, supra.
Turning specifically to petitioners' contentions, we will deal with the vagueness claim first. To comport with fundamental principles of fairness, it is essential that the restraining order fairly and precisely advise the individual of what conduct is forbidden. To support a charge of contempt for its disobedience, "an order will not be expanded by implication in the contempt proceeding but must be so specific and definite as to leave no reasonable basis for doubt as to its meaning." G. v. Souder, supra at 885. See also State ex rel. City of Pacific v. Buford, 534 S.W.2d 819 (Mo.App. 1976); Gerard v. Kodner, 468 S.W.2d 677 (Mo.App.1971). Where one has a genuine doubt as to whether his proposed conduct would be violative of the order because of its alleged vagueness, the proper procedure is not to act in reckless disregard of the potential restraint imposed. Once a court of general jurisdiction, having equity powers, issues an order upon pleadings properly *38 before it, the order must be scrupulously obeyed even though it may prove to be erroneous. It is the function of the court in the first instance to judge the legality of its decision and until that decision is modified or reversed it must be respected under pain of contempt. Any attack on the propriety of the order must be by judicial process and not willful disobedience. Maness v. Meyers, 419 U.S. 449, 95 S.Ct. 584, 42 L.Ed.2d 574 (1975); Walker v. City of Birmingham, 388 U.S. 307, 87 S.Ct. 1824, 18 L.Ed.2d 1210 (1976); Houston v. Hennessey, supra. "No man may judge his own case. If one man may determine the law of his own case, all men may do so. If parties make themselves the judge of the validity of a court order regularly entered respecting their conduct or cause of action, then the courts become impotent and judicial power becomes a mockery, (citations omitted) Until the judgment of a court is set aside by such court upon reconsideration, or is reversed for error upon orderly procedure, its orders must be respected by full obedience. Disobedience of such orders is contempt of its lawful authority and punishable as such." State v. Koon, supra at 455. Thus, a contempt conviction may not be attacked on the grounds of vagueness of the order where contemnors have, as here, engaged in conduct clearly proscribed thereby. Mechanic v. Gruensfelder, supra.
Petitioner's allegations regarding the insufficiency of the evidence to support their convictions are likewise without merit. In the truck obstruction incident, the court found that petitioners Hambrick, Becht, Manion and McKenzie acted in concert with others to cause automobiles to block the path of a truck occupied by Charles Henkle, a Grey Eagle customer, and to obstruct its forward movement until Henkle agreed to return the beer he had just purchased. There was some evidence from which the court could reasonably conclude that these petitioners caused the automobiles to block Henkle's path. But more important, there was sufficient evidence to establish that they participated in the obstruction of the vehicle once halted. Each admitted being in the group of ten to twelve strikers who approached the truck and demanded that the beer be returned. Under these circumstances and within the context of this violent strike, the court could find that these actions constituted obstruction "done willfully and deliberately for the purpose of intimidating coercing and harassing a customer" of Grey Eagle in violation of the restraining order. When a small crowd of people descends upon a vehicle it caused to be blockaded and makes demands upon the occupants to engage in conduct contrary to their previous intention, the court could find inherent intimidation, harassment and coercion. The mob manner in which these men conducted themselves belies their stated informational purpose. If one or two of the strikers had approached Henkle's truck to explain the Union's position we would have difficulty finding a violation of the order, but the methods employed here, as corroborated by photographic evidence, were patently contrary to its terms. One of the court's specifications of contempt being sufficiently established, the conviction will stand.
Likewise, the conviction of petitioner McKenzie in the window breaking incident, though based entirely on circumstantial evidence, is supported by the evidence. There is no question that this destructive conduct violated the terms of the restraining order. The only real issue here is whether there was sufficient proof that McKenzie was responsible for the damage. We believe there was. The testimony of Winston Kratz, Jr. that the vehicle involved was similar to that in which McKenzie and Woodson were discovered, the close proximity in time and distance to the scene of the crime, as well as the unsolicited explanation of the motive for the window breaking by McKenzie showing his guilty knowledge of the crime established sufficient, cumulative interdependent facts to sustain McKenzie's conviction. However, the case against petitioner Woodson rests only on his presence with McKenzie at the time their camper was halted. We find the evidence against Woodson insufficient to support his conviction for contempt, as it is not inconsistent *39 with a reasonable hypothesis of innocence. State v. Castaldi, supra.
The convictions of petitioners Manion and Hosfeld for bracketing Andy Garanella's truck in traffic are substantially supported by the evidence. The testimony contained in Garanella's stipulation that at least three car loads of strikers followed him from Grey Eagle and at various times positioned themselves on the front, side and rear of his vehicle so that he was completely surrounded was corroborated by the testimony of Gerald Koester. Petitioners admit their presence and that the events described may have occurred en route, but deny intimidation. We believe that given the evidence of previous incidents of violence accompanying the following of plaintiffs' customers' vehicles and petitioner Girard's statement that bracketing would be wrong, the court could reasonably find that such action was deliberately undertaken for the purpose of intimidating and harassing Garanella in violation of the restraining order. In this instance, as in the truck stopping episode, the Union's method of procedure negates its stated purpose and bolsters the court's conclusion. The strikers' mass action of bracketing could have no legitimate lawful purpose. It invited evasion tactics and retaliation by Garanella because of the fear it engendered in him. As such, it posed a grave potential for harm to Garanella as well as all other members of the public travelling on the same streets. The evidence is sufficient to support these convictions.
Finally, we reach the convictions of the members of the Union's executive board for adopting and promulgating the policy of following plaintiffs' customers. Petitioners admit adopting said policy and disseminating it to their members for implementation. They argue, however, that the court was without jurisdiction to prohibit such practice because it was preempted by federal labor law; furthermore, that the policy, as adopted, did not violate the literal terms of the restraining order.
It is true that one may not be held in contempt for violation of an order the court was without jurisdiction to issue. Ex Parte Irwin, 6 S.W.2d 597 (Mo.banc 1928); State ex rel. Hyde v. Westhues, 316 Mo. 457, 290 S.W. 443 (banc 1927). The court here, however, had jurisdiction to issue this order. Any aspect of a labor dispute which is arguably a protected activity under § 7 or an unfair labor practice under § 8 of the National Labor Relations Act may not be directly regulated by state courts because of federal preemption, San Diego Building Trades Council v. Garmon, 359 U.S. 236, 79 S.Ct. 773, 3 L.Ed.2d 775 (1959). See generally Cox, Labor Law Preemption Revisited, 85 Har.L.Rev.1337 (1972). But the power of state courts to enjoin violence and preserve the peace as well as to prohibit other actions deemed detrimental to the public health and safety has not been precluded even when an incidental effect is to regulate the parties to a bonafide labor dispute. Automobile Workers v. Russell, 356 U.S. 634, 78 S.Ct. 932, 2 L.Ed.2d 1030 (1958); Garner v. Teamsters, Chauffeurs and Helpers Local 776, 346 U.S. 485, 74 S.Ct. 161, 98 L.Ed. 228 (1953); Tallman Co. v. Latal, 365 Mo. 552, 284 S.W.2d 547 (banc 1955), "Nothing in the federal labor statutes protects or immunizes from state action violence or the threat of violence in a labor dispute." Farmer v. Local 25, 430 U.S. 290, 299, 97 S.Ct. 1056, 1063, 51 L.Ed.2d 338, 349, 350 (1977). Furthermore, a state may even enjoin peaceful labor activity, such as picketing and patrolling, when they are so enmeshed with contemporaneously violent and illegal conduct as to be part of a pattern of violence and fear. Milk Wagon Drivers Union v. Meadowmoor Dairies, Inc., 312 U.S. 287, 61 S.Ct. 552, 85 L.Ed. 836 (1941).[14] A state may "protect its storekeepers from being coerced by fear of window smashings or burnings or bombings. And acts which in isolation are peaceful may be part of a coercive thrust when entangled with acts of violence. The picketing in this case was set in a background *40 of violence. In such a setting it could justifiably be concluded that the momentum of fear generated by past violence would survive even though future picketing might be wholly peaceful." Id. at 294, 61 S.Ct. at 555. The court was not required by federal labor law to sit inactive atop this powder keg waiting for it to fulminate. We believe that its order did no more than restrain future acts of violence and other activities which were designed to nourish the "momentum of fear generated by past violence"; therefore, the order issued was within its subject matter jurisdiction. See Youngdahl v. Rainfair, Inc., 355 U.S. 131, 78 S.Ct. 206, 2 L.Ed.2d 151 (1957).
Finally, we conclude that the practice of following violated the terms of the restraining order. There was abundant evidence of violence accompanying following episodes both before and after issuance of the restraining order. It was obvious from the testimony, and was manifested to petitioners by their conduct when subjected to it, that the customers were uniformly frightened and intimidated by the Union's program of following. While it is true that the court did not specifically forbid following, it did forbid intimidation, harassment, and coercion of customers. The meaning of these terms is clear to one acting in good faith. The court was not required to denominate every type of prohibited conduct which would intimidate, harass and coerce customers. Use of generic terms was sufficient to give petitioners fair warning. If they questioned the permissibility of this practice, the proper course was a motion to modify the order, not reckless disobedience of its literal terms. The fact that the policy was designed in the abstract to be non-violent is irrelevant. Violence and fear of violence did occur as a direct result of this policy and the petitioners' testimony that they were unaware of that fact is unworthy of belief. Nor is it relevant that the executive board members, themselves, did not engage in following. Those who direct and control the implementation of contemptuous activity so as to cause members of their organization to violate a court order may not evade a contempt citation by the circuity of their involvement. The role played by the members of the executive board in adopting and continuing the policy of following with full knowledge of the intimidation and violence it engendered is analogous to that of the leaders of the demonstration in Curtis v. Tozer, supra, who were held guilty of criminal contempt. Though the evidence did not support a finding that the leaders, themselves, had engaged in conduct directly violative of the literal terms of the restraining order, the court found that they had "directed, controlled, supervised and planned the demonstration, while the restraining order was in force so as to cause members of their organization and others to violate the restraining order . . .
[T]hese petitioners were found to have aided, abetted and counseled others to engage in the described activities violating the restraining order. There can be no doubt that such activities are punishable for contempt." Id. at 581-582. The members of the executive board were the deliberate instigators of acts of contempt and may be punished as such; the punishment meted out by the trial court was condign.
We find that all petitioners, except Robert Woodson, are not illegally restrained; that our writs as to all such petitioners should be quashed; that such petitioners be remanded to the custody of the respondent. As to Robert Woodson, we hold that he is illegally restrained, in that the evidence does not support a finding of guilty beyond a reasonable doubt of the specifications found in the judgment entered against him. Accordingly, Robert Woodson is to be discharged.
KELLY, P. J., and WEIER, J., concur.
NOTES
[1]  Respondent Percich has been succeeded in office by Benjamin Goins.
[2]  These included a firebombing of Lohr's premises and threats against the life of its chief operating officer. The petition admitted that these violent acts were committed by unknown persons but alleged that they were directly related to the current strike.
[3]  At the conclusion of the June 3 hearing, Judge Gaertner ordered paragraph (g) stricken from the restraining order, because it had been improvidently included by the court under the mistaken belief that the entrance to Grey Eagle's premises was located at this intersection when, in fact, it was located two blocks away. Although no individual was cited for violation of this paragraph, the evidence shows that the activity which it prohibited was openly and consistently engaged in by members of the Union in defiance of the order.
[4]  In addition to petitioners herein nine other individuals were served with notices of prosecution for contempt. These individuals, however, were acquitted.
[5]  This precarious situation was further exacerbated by the contemporaneous existence of a second and unrelated strike by another union against Anheuser-Busch directly. Numerous acts of violence and property damage were alleged to have been precipitated by this second dispute and directed at many of the same persons and businesses as the strike in this case.
[6]  Lieutenant Delling's first statement to McKenzie on stopping his vehicle was "[A]ren't you guys a little bit old to be throwing bricks?" He did not elaborate further on whose windows had been broken.
[7]  Gerald Koester is a professional photographer employed by plaintiffs to gather photographic evidence of the Union's violations of the restraining order.
[8]  In its Findings of Fact the court concluded the following:

"5. That the Executive Board of Local 133 thereupon adopted, promulgated and put into effect through the members of the Union a policy and practice of having each such customer who picked up beer followed to his destination, ostensibly for the purpose of identifying such customer and later publishing in a labor newspaper the fact that such customer had crossed a picket line and was `unfair' to labor.
"6. That this policy and practice was, with the knowledge and direction of the chief executive officer and the members of the Executive Board of the Union, carried out by means of a gathering of large numbers of strikers near, but not at, the respective entrances to plaintiffs' warehouses with numerous and varied vehicles which pursued each customer as he left plaintiffs' premises; this `following' in most instances was performed by several vehicles (as many as five in at least one case), each usually occupied by more than one striker, and in a very ostentatious and conspicuous manner.
"7. That prior to and after the issuance of the Restraining Orders, certain of the customers so followed sustained acts of vandalism, such as broken windows, concrete poured into restroom urinals, or shattered windshields.
"8. That customers of other beer distributors who also sold from their warehouses were shot at and suffered bricks and rocks thrown at their vehicles while transporting beer.
"9. That such incidents, as well as numerous other acts of vandalism directed toward customers of beer distributors, received widespread publication by the news media and became a subject of public knowledge as well as a frequent topic of conversation among customers of plaintiffs.
"10. That by reason of the foregoing, certain customers of plaintiffs began hiring guards and carrying firearms while transporting beer and a potential for physical violence was created in addition to the existence of a fear of vandalism and property damage.
"11. That this atmosphere of fear and terror permeated the entire beer distribution industry of the St. Louis Metropolitan area and was known to the chief executive officer and Executive Board of Local 133. The Court finds the testimony of Board members that they had not heard of any damage to the property of any of plaintiffs' customers unworthy of belief.
"12. That notwithstanding all of the above, subsequent to the issuance of the Restraining Orders herein, the chief executive officer and the Executive Board of Local 133 directed the members of the Union to continue the practice of `following' in the same manner as before and that such directions have been carried out by the members of the Union.
"13. That after June 3, 1976, the date upon which three days of testimony ended and this Court issued its Order to certain defendants to show cause why they should not be held in contempt, said chief executive officer and the Executive Board of Local 133 directed that the `following' policy be `minimized,' i. e. to follow some but not all customers and to follow some only part of the way to their destination just to let them know they are being followed.' This direction being given after the chief executive officer and the President of Local 133 had both spent three days in the Courtroom listening to the testimony of numerous customers of plaintiffs to the effect that being followed caused them to be frightened and amounted to intimidation and harassment.
"14. That the practice of following customers in the manner in which it was conducted by members of Local 133, i. e. by numerous vehicles occupied by numbers of strikers, in some instances swerving in front of the customer and coming to a sudden stop, in other instances surrounding the customer by strikers' vehicles in front, on the side and behind him, by following vehicles which have displayed thereon the name and address of the customers, by remaining at the customer's destination and conspicuously watching the unloading of beer, by the failure to inform the customers of the claimed purpose of the following, was deliberately and willfully intended by the chief executive officer and the Executive Board to harass, intimidate and coerce customers of plaintiffs in direct violation of the Restraining Orders issued herein.
"15. That said practice of following in such manner conducted and continued in the aforementioned atmosphere of fear and terror did indeed accomplish its intended purpose of harassing, intimidating and coercing plaintiffs' customers.
"16. That notwithstanding the absence of proof regarding the actual identity of the perpetrators of most of the vandalism mentioned in the evidence, it was the intention of the chief executive officer and the Executive Board of Local 133 to take advantage of the fear engendered thereby in directing the continuation of such practice after the issuance of the Restraining Orders herein for the purpose of harassing, intimidating and coercing plaintiffs' customers in direct violation of said Order.
"17. That the manner in which such following was conducted as described in paragraph 14 hereof, belies the stated purpose thereof, viz. to identify the customer for purposes of publishing his name and also belies the testimony of the chief executive officer that said policy and practice was not intended to violate the Restraining Orders.
"18. That the chief executive officer and the Executive Board of Local 133 willfully and with calculated deliberation adopted and continued in effect the practice and policy of following in the manner described for the purpose of harassing, intimidating and coercing plaintiffs' customers as prohibited by the Restraining Orders by means of a procedure which would seem legitimate were it not for the atmosphere of fear and the excesses of the following practices set forth above, and if conducted in such a manner as to limit its effect to its stated purpose of identifying customers.
"19. That the acts and conduct of the chief executive officer and the Executive Board hereinabove described were done willfully and deliberately for the purpose and with the intent of thwarting and defeating the Restraining Orders of April 22, 1976 and April 28, 1976 and constitute contempt against the majesty of the law and the authority and dignity of the Circuit Court of the City of St. Louis."
[9]  Most customers admitted that the strikers made no express threats against them in the course of following. This testimony supports the executive board's contention that the official policy of the Union was to forbid violence and was engaged in to accomplish the purposes previously stated.
[10]  After this warning on June 3, 1976, the executive board voted to continue the policy of following, but decided to employ it on a random basis and then only for short distances in order to learn the customer's identity.
[11]  The Union agreed to pay petitioners' fines for them.
[12]  For an in depth analysis of the various forms and categories of contempt, see Ex Parte Clark, 208 Mo. 121, 106 S.W. 990 (1907); Chemical Fireproofing Corp. v. Bronska, supra.
[13]  Petitioners admitted in their answer to the initial complaint that they had notice of the restraining order; therefore sufficient proof of this element is not in question.
[14]  The continuing validity of the Meadowmoor Dairies doctrine was reaffirmed in United Mine Workers v. Gibbs, 383 U.S. 715, 86 S.Ct. 1130, 16 L.Ed.2d 218 (1966).


                                                             11th
Court of Appeals
                                                                  Eastland,
Texas
                                                             Memorandum
Opinion

Rosemary Ei-Ling Lohmann
Appellant
Vs.                   No.  11-04-00241-CV -- Appeal from Midland County
George
Young Lohmann, Jr.
Appellee

Appellant, Rosemary Ei-Ling
Lohmann, filed her notice of appeal in this cause on
September 23, 2004, from a judgment signed by the trial court on September 16,
2004.  This court advised appellant in a
letter dated September 29, 2004, that the appellate record was due for filing
in this court on or before November 15, 2004.[1]  See TEX.R.APP.P. 35.1.  The trial court
clerk=s office
filed an affidavit with this court on November 18, 2004, wherein Angie Welch,
Assistant Chief Deputy for Vivian Wood, District Clerk of Midland County,
stated that the office had not received a designation of items to be included
in the clerk=s record
and that no financial arrangements had been made for the preparation of the
clerk=s
record.  This court advised appellant=s counsel in a letter dated November
19, 2004, that the appeal would be dismissed for want of prosecution unless the
designation of items to be included in the clerk=s
record was filed and sufficient financial arrangements for the preparation of
the clerk=s record
were made within 15 days of the date of the letter.[2]  See TEX.R.APP.P. 35.3(a)(2) & 42.3.
As of this date, appellant has neither filed a
designation of the items to be included in the clerk=s
record nor made sufficient financial arrangements for the preparation of the
clerk=s
record.  Pursuant to Rule 42.3, we
dismiss the appeal for want of prosecution.
The appeal is dismissed for want of prosecution.

PER CURIAM

January 31, 2005
Not designated for publication.
See TEX.R.APP.P. 47.2(a).
Panel
consists of:  Arnot,
C.J., and
Wright,
J., and McCall, J.

     [1]Appellant
indicated in her docketing statement that a reporter=s record would not be requested.

     [2]This
court sent the letter of November 19, 2004, to appellant=s counsel by certified mail, return receipt
requested.  The return  receipt indicates that counsel
received the letter on November 22, 2004.


243 F.2d 773
Raymond N. HEISELMOYER, Appellant,v.The PENNSYLVANIA RAILROAD COMPANY.
No. 12044.
No. 12045.
United States Court of Appeals Third Circuit.
Argued February 7, 1957.
Decided April 22, 1957.

B. Nathaniel Richter, Philadelphia, Pa. (Richter, Lord & Levy, Philadelphia, Pa., on the brief), for appellant.
H. Francis DeLone, Philadelphia, Pa. (Raymond W. Midgett, Jr., Barnes, Dechert, Price, Myers & Rhoads, Philadelphia, Pa., on the brief), for appellee.
Before McLAUGHLIN, STALEY and HASTIE, Circuit Judges.
McLAUGHLIN, Circuit Judge.

1
Appellant claimed that while employed as an engineer by appellee railroad he sustained two separate accidents. In his complaint based on the first of these he stated that the action arose under the Federal Employers' Liability Act1 and under the Safety Appliance Acts.2 Later he said, "The accident hereinafter mentioned was caused by the defendant's violation of the Boiler Inspection Act." He went on to say that the accident occurred September 19, 1952, near Norristown, Pennsylvania, while he was working for the defendant as an engineer and that he "* * * suffered severe and permanent injuries by reason of a defect in the improperly constructed seat and seating arrangement on the locomotive of the defendant." The second suit is under the Employers' Liability Act. In it appellant asserted that on July 9, 1954 at appellee's Sunnyside (Long Island, N. Y.) Yards he "* * * suffered severe and permanent injuries by reason of a yard mechanic negligently opening a door inward on the engine and striking plaintiff while he was working." The injury urged was aggravation of the back condition allegedly resulting from the Norristown accident. The two causes were consolidated for trial on plaintiff's motion.

2
According to plaintiff's first action the engine seat interfered with the safe operation of the locomotive because it interfered with the independent brake valve. He therefore tried to remove the back-rest and while tugging and yanking at it he fell backward and was hurt. At the pretrial conference plaintiff's theory of liability was clearly stated as arising from the dangerous condition of the seat. His trial memorandum repeated this as did his opening address to the jury. The trial followed the same pattern and summation for appellant gave the jury the trouble with the seat as the sole issue. On the fourth trial day and after plaintiff had rested, his attorney, giving an opinion citation to the court, said "* * may I just give you one thought in connection with this case * * * Now so that among other things Your Honor will understand our position in this case on the liability, as far as the Boiler Inspection Act is concerned and in so far as the brakes are concerned, safety appliances, it is covered by Section 11, 35 [45] U.S.C.A." This and requests to charge with exception to their denial are the only references prior to verdict of a contention of a defective brake as such. In the course of plaintiff's motion for a new trial there was a closely argued question of whether the independent brake was a Safety Appliance under the Safety Appliance Acts covering brakes, 45 U.S.C.A. § 1. It appeared highly questionable that the auxiliary independent brake, which was not known when this particular part of the law was adopted, was a safety appliance within the section.3 Then plaintiff went to his present position here argued that the independent brake was a defective appurtenance under the Boiler Inspection Act because of the contact between it and the seatrest when the latter was so turned that it and whoever might be occupying it faced the rear of the locomotive.

3
Though the shift of position came too late and irrespective of its tenuous foundation and no covering request to charge, examination of the record reveals the court squarely placed before the jury plaintiff's proposition that his injury proceeded from the fundamental fact, as the court said, that "* * * the seat would not turn 360 degrees; that is turn completely around, that when it was turned it hit the brake valve lever * * *." The court continued, telling the jury that "* * * it is your duty to determine from the testimony on this phase of the matter whether or not the seat was defective or not in good condition." Then the court said "If in your considered judgment, and yours alone, based upon your understanding of the evidence, the seat was defective and the defective seat was a contributing cause of the plaintiff's injury, your verdict should be for the plaintiff." True the judge did not repeat this in terms of it being a jury question whether the brake was a defective appliance under the Boiler Inspection Act if there was such contact but he had given the jury a practical formula for its guidance on this branch of the problem. It could not be misunderstood. If the jury had concluded that contact between the seat and the brake lever had created a defective condition, irrespective of whether it was attributed to the seat or to the brake, if that condition was a proximate cause of the accident, the jury was bound to render a verdict in plaintiff's favor. The actual verdict must be accepted as a finding to the contrary.

4
Appellant complains about the refusal to charge his request with reference to no necessity of proving the precise defect that caused the back-rest to snag. There is no substance to the objection. The court established the widest possible latitude for plaintiff's evidence in this connection saying:

5
"On the other hand, if you find by the preponderance of the evidence the seat was defective or in bad condition, then you must next consider whether the defective seat was a contributing cause of the plaintiff's injury.

6
"If, in your considered judgment, and yours alone, based upon your understanding of the evidence, the seat was defective and the defective seat was a contributing cause of the plaintiff's injury, your verdict should be for the plaintiff."

7
In the circumstances of the case we find no error in the court's instruction regarding unnecessary peril. After reading the pertinent part of the Boiler Inspection Act the court said:

8
"I charge you, Members of the Jury, that the defendant railroad, Pennsylvania Railroad in this case, was under a duty to see that the locomotive, to which the plaintiff in this case was assigned, and its appurtenances, one of which was the seat in question, was maintained in good condition so that it could be employed in the active service of the carrier without unnecessary peril to the life and limb of the plaintiff.

9
"In other words, the defendant, the Pennsylvania Railroad, has an absolute and continuing duty to provide and maintain its locomotive and the attached apparatus and appurtenances so as to provide a safe place to work for its employees.

10
"When you say `safe,' however, you must consider `safe' in the context here and remember what sort of places and equipment the railroad has to do with. When you say `safe' in connection with a locomotive, you don't mean the same thing as you would if you used the word `safe' in connection with the parlor floor, or the front or back door of your home.

11
"A locomotive cannot be made `safe' in that sense. It is a piece of equipment that necessarily can injure people. So that when you talk about `safe' it is being used in connection with a locomotive and is qualified here by the statement in the section of the Boiler Inspection Act, `that the same may be employed in the active service of such carrier without unnecessary peril to life and limb * * *' It does not say `any peril to life or limb'; it says, `without unnecessary peril to life or limb * * *'"

12
As we have already seen, under the charge, if the jury found the seat defective, it did not have the further step of determining that it was an unnecessary peril before it could arrive at a plaintiff's verdict. Once the defect was established and the jury concluded it contributed to the accident, a decision in favor of the plaintiff was required by the instruction of the court.

13
Complaint is made that the court improperly refused to charge that assumption of risk was no defense to the first suit under the Boiler Inspection Act.

14
The trial judge categorically laid down the correct rule in his charge that:

15
"A railroad employee does not assume the risk of his employment."

16
In addition the entire mechanics of submitting the Norristown occurrence to the jury eliminated any idea of assumption of risk. The judge told the jury if it found a seat defect which contributed to the accident there should be a verdict for the plaintiff. He added: "There is no question of any contributory negligence in this case. In other words any negligence of either the plaintiff or defendant does not enter into the case at all, that is the first case, and is not to be considered by you." This element, which was not really a trial problem at all, was discreetly and properly disposed of by the court.

17
Appellant's next point has to do with two statements in summation by defense counsel. Attempt is made to bring the first of these under our decision in Straub v. Reading Company, 3 Cir., 1955, 220 F.2d 177. In Straub affirmative reference was made in summation to a statement which was not in evidence. Here the attorney for the plaintiff in summation had presented an interpretation of an interrogatory and its answer unfavorable to the defense and which was open to attack. That was replied to without timely objection. We find nothing of substance in this connection. The second statement reads:

18
"The only other person who might be able to help us on this was Lawler, the fireman. He's out of the service, not working for the railroad and presumably the plaintiff can't find him, so none of us have the benefit of his testimony in this cause."

19
Appellant argues that the last phrase in the above could only leave the inference that the railroad was anxious to have Lawler present as he would be a favorable witness for it. That reason was offered to the district court some two months after the entry of judgment. The court dismissed it as not within 59 (b) of the Rules of Civil Procedure, 28 U.S.C. Aside from that the language, if it is to be read with appellant's glasses, must be taken to mean that Lawler would have been a helpful witness for both sides. The point is de minimis.

20
In this long bitterly contested trial the patient competence of the trial judge was the one notably commendable feature. He dealt with both sides fairly. Plaintiff had his full day in court. The jury verdicts have sound foundation in the record. There was no substantial error by the trial judge in his rulings or in his charge.

21
The judgments of the district court will be affirmed.

Notes:

1
 45 U.S.C.A. § 51 et seq

2
 The Boiler Inspection Act is found at 45 U.S.C.A. § 23; the Safety Appliance Acts pertaining to brakes at 45 U.S.C.A. § 1

3
 45 U.S.C.A. §§ 1, 9, 11; United States v. Erie R. Co., 1915, 237 U.S. 402, 407-408, 35 S.Ct. 621, 59 L.Ed. 1019; Richmond F. & P. R. Co. v. Brooks, 1952, 91 U.S.App.D.C. 24, 197 F.2d 404, 407


781 S.W.2d 487 (1989)
301 Ark. 80
Jacqueline Kight WILSON, Appellant,
v.
John Lofton WILSON, Appellee.
No. 89-67.
Supreme Court of Arkansas.
December 18, 1989.
Richard Crockett, Little Rock, for appellant.
J.L. Kidd, Little Rock, for appellee.
ROBERT S. HARGRAVES, Special Justice.
This is the second appeal of this divorce case. Wilson v. Wilson, 294 Ark. 194, 741 S.W.2d 640 (1987). In that case we remanded on two points. First, we held the chancellor abused his discretion in finding that none of the incentive bonus due appellee from his employer was marital property. *488 Secondly, we remanded to permit both parties to fully develop the record regarding the value of appellee's corporate stock in Orthopedic Associates, Inc.
On remand the chancellor awarded appellant one-half of the incentive bonus after first deducting the income tax liability assessed against the bonus and the amount of a marital debt owed appellee's corporate employer. The chancellor also determined the value of appellee's stock interest in Orthopedic Associates, Inc., to be $20,000, the same amount which he had determined at the first trial.
In this appeal, appellant argues only that the chancellor erred by failing to follow the law of the case as mandated in our earlier decision. We hold the doctrine of the law of the case is not applicable to the factual questions which we remanded to the chancellor and we therefore affirm.
The basic issue before us on this appeal is whether the values found by the chancellor on remand violated the mandate of our decision in the first appeal. When this matter was first before us, this court did not undertake to value the appellant's interest in appellee's incentive bonus. We merely decided the bonus to be marital property. Likewise, we did not value the appellee's stock interest in Orthopedic Associates, Inc. We said that on the basis of the record then before us, we thought it apparent that the stock exceeded a value of $20,000, but the evidence was insufficient for us to place a value on the stock. Consequently, we remanded the case for the chancellor to reconsider those issues in light of our decision.
Unlike the dissent, we do not read our decision in Wilson I to hold it was error for the trial court to rely on the stock purchase agreement in evaluating the worth of the professional association. We said the record before us indicated the stock was worth more than the amount prescribed in the stock purchase agreement, but we were unable to place a fair value on the stock from the evidence in that record.
The quantity and quality of the evidence developed on remand is substantially different from the evidence adduced at the initial hearing.
The doctrine of the law of the case cannot be applied to factual questions which were expressly remanded for determination by the trial court. It is conclusive only where the facts on the second appeal are substantially the same as those involved on the prior appeal. The rule does not apply if there is a material change in the facts. Potter v. Easley, 288 Ark. 133, 703 S.W.2d 442 (1986); Hartford Fire Ins. Co. v. Enoch, 79 Ark. 475, 96 S.W. 393 (1906).
From his lengthy and reasoned opinion, it is apparent the chancellor properly construed and applied our reasoning in the first appeal to his findings of fact on remand. Even though we consider chancery appeals de novo, we will not reverse unless the trial court's factual findings are clearly erroneous. ARCP Rule 52(a); Milligan v. General Oil Co. Inc., 293 Ark. 401, 738 S.W.2d 404 (1987). From our review of the record, we cannot say the chancellor's determination of the value of both the incentive bonus and corporate stock were clearly erroneous.
Affirmed.
HOLT, C.J., and NEWBERN and GLAZE, JJ., not participating.
J.R. BUZBEE, Special Chief Justice, joins the dissent.
MARCIA L. McIVOR, Special Justice, dissents in part and concurs in part.
MARCIA McIVOR, Special Justice, dissents in part. Concurrence in part.
The majority has voted to affirm the trial court's opinion after remand from this court in Wilson v. Wilson, 294 Ark. 194, 741 S.W.2d 640 (1987). In that opinion, we remanded the case on two points. First, we held that the trial court abused its discretion in not considering the incentive bonus which appellee received on June 30, five days after the decree of divorce was entered, as marital property subject to division. Second, we held that it was error to *489 rely on the stock purchase agreement between appellee and Orthopedic Associates, Inc., as the sole measure of appellee's professional practice. Although appellant had submitted evidence through one expert, showing a considerably higher value, the appellee offered no evidence other than the stock purchase agreement, and we felt fairness required remand to permit both parties to develop proof of the value.
Appellant now argues that the chancellor failed to follow the law of the case in reaching a decision after remand. On hearing after remand, the trial court found appellant was entitled to half of the $67,078 incentive bonus but reduced the bonus by amounts withheld by Orthopedic Associates, Inc., for what may have been an advance or a debt, and further reduced appellant's share of the bonus by an "income tax reduction." Although the record is not clear how the trial court reached the conclusion that appellant's "half" of the bonus should be $11,259, appellant has not assigned as error the reductions to the bonus of "tax" and "debt." The principle of law on this issue as announced in Wilson I was that most of the incentive bonus accrued and therefore was acquired during the marriage and was, therefore, marital property. The majority finds that the doctrine of the law of the case is not applicable to disturb the trial court's decision, and on the point of the incentive bonus, I concur.
However, the same should not be true of the findings of the trial court on the value of Dr. Wilson's professional practice. In Wilson I we held that it was error to rely on the stock purchase agreement between appellee and Orthopedics Associates, Inc., as the method of evaluating the worth of that professional association and Dr. Wilson's one-third interest in it. Wilson I held that it was error to rely upon the $20,000 figure which the stock purchase agreement set as both a buy-in and buy-out figure. Yet the trial court, after hearing the other evidence, again returned to that agreement to value appellee's share of the corporation. The trial court's rejection of any other method of evaluation is inconsistent with the mandate of Wilson I, and with the Arkansas statute on marital property division which requires that all marital property be distributed equally unless an equal division is inequitable. In Day v. Day, 281 Ark. 261, 663 S.W.2d 719 (1984), we recognized that neither party should be permitted to deprive the other of an interest in property subject to division by putting the property temporarily beyond his or her control. Yet the stock purchase agreement involved here has a similar effect of artificially limiting the value of property available for division, while preserving a significant segment of it for future income generation of one of the parties.
When the marital property at issue is an interest in a professional association, Ark. Code Ann. § 4-29-208 (1987) precludes persons not licensed as a professional of that type from ownership, management or voting in any shares of any such a professional association. This case typifies the problem of reaching a monetary value of a marital asset which is not bought and sold on the open market. The complexity of the valuation issue should not obscure the purpose of the property division statute. "The legislature no doubt intended for common sense and logic to apply in cases where a statute does not specifically cover the exact factual situation before the court." Wagoner v. Wagoner, 294 Ark. 82, 740 S.W.2d 915 (1987) (Purtle, J., dissenting). The court cannot award appellant shares in the appellee's professional association because of the prohibition of Ark.Code Ann. § 4-29-208. Therefore, the court should reach a fair assessment of the economic value to appellee of that asset and make a monetary award to the spouse of half that amount.
In reaching the valuation, courts may consider stock purchase agreements such as this one in arriving at the value of a professional's share in a professional association. However, the courts must also consider the inherent inappropriateness of those agreements as a measure of the value of the share in a divorce action. This stock purchase agreement is subject to change by the corporation, of which the professional, appellee in this case, is a one-third owner. As appellee's witnesses candidly *490 admit, the purpose of such agreements is to protect the corporation and its members, but not their spouses or former spouses. While the agreement may be a bona fide business planning tool to meet objectives such as preventing changes in ownership, promoting economic continuity, protection from outsiders and minimizing tax consequences, they are not conclusive measures of the economic value of the share of one member in a divorce action. The figure, in this case $20,000, is selected as a means of convenience to avoid difficult computations and litigation if one of the members resigns, but there is no evidence in this case that the wife acquiesced in the figure as a method of evaluation, or that she should be bound by it in these circumstances. In this case, the stock purchase agreement was executed sixteen months after the parties' divorce action was commenced, a fact certainly in mind of the appellee, and known to the lawyers advising the members of the corporation. When there is a right of first refusal by the corporation, this provision prevents or discourages knowledgeable offers to establish a value. All of these considerations led to our rejection of the stock purchase agreement as the measurement of appellee's share of the professional association in Wilson I and our remand to the trial court.
On remand the trial court rejected alternative higher values by various experts, because those values had included the accounts receivable of Orthopedics Associates, Inc. The trial court's position rests on an assumption about whether appellant would get a share of the accounts receivable when Dr. Wilson leaves the professional association. That will depend on the terms of the agreement in effect when Dr. Wilson leaves. Those terms have changed once and may change again, a matter within the control of Dr. Wilson and his associates. That should not mean that a method of establishing the value of Orthopedics Associates, Inc., cannot consider the accounts receivable, which are a substantial asset of any such professional association. To consider the accounts receivable in evaluating the association is not the same as awarding appellant a share of the accounts themselves. This problem was considered by the court in Stern v. Stern, 66 N.J. 340, 331 A.2d 257 (1975). There the court rejected contentions similar to the theory on which the chancellor in Wilson rejected evaluations of Orthopedics Association, Inc. Stern found that the accounts receivable were to be considered as one of the elements in determining the entire worth, along with other assets, and accounts payable and other liabilities. All of these are elements to be considered in reaching a monetary evaluation of a professional association by several methods accepted by the courts.
The majority rejects appellant's arguments by citing those cases in which we found that the doctrine of the law of the case does not apply if there is a material change in the facts, and suggesting that the quantity and quality of evidence on remand is substantially different from the evidence adduced at the initial hearing. However, though there may be more and different evidence on the facts, this does not amount to a material change in the facts of the case. The issue here on the "law of the case" goes to whether or not the trial court on remand has applied the principles of law determined and announced in the first appeal. Overton Constr. Co., Inc. v. First State Bank, 285 Ark. 361, 688 S.W.2d 268 (1985).
In my view, the trial court failed to follow the mandate of Wilson I when it rejected the other evaluations of appellee's onethird (1/3) share of the partnership and again used the stock purchase agreement value of $20,000 as a measure of appellee's share of the value of the professional association.
In the final analysis it is our duty to see that the law enables people to have a fair decision after their day in court. In chancery cases this court reviews de novo, and may, rather than remand, determine what judgment should have been reached. O'Neal v. Ellison, 266 Ark. 702, 587 S.W.2d 580 (1979). Since the record is now fully developed, we should determine the value of appellee's share of the professional association on this de novo review and *491 make an equitable distribution as the decree which the chancellor should have entered.
J.R. BUZBEE, Special C.J., joins in the dissent.


848 F.2d 188
Unpublished DispositionNOTICE: Sixth Circuit Rule 24(c) states that citation of unpublished dispositions is disfavored except for establishing res judicata, estoppel, or the law of the case and requires service of copies of cited unpublished dispositions of the Sixth Circuit.Brian L. BOOKER, Petitioner-Appellant,v.John GLUCH, Respondent-Appellee.
No. 88-1276.
United States Court of Appeals, Sixth Circuit.
May 20, 1988.

1
Before NATHANIEL R. JONES, WELLFORD and ALAN E. NORRIS Circuit Judges.

ORDER

2
This matter is before the court upon consideration of the appellant's response to this court's order directing him to show cause why his appeal should not be dismissed for lack of jurisdiction.  In his response, he states that he believed that a notice of appeal was automatically filed upon the denial of a habeas corpus petition.  Appellant has also filed a motion for appointment of counsel.

3
It appears from the record that the judgment was entered November 2, 1987.  The notice of appeal filed on March 7, 1988, was 63 days late.  Fed.R.App.P. 4(a) and 26(a).  Although appellant in a memorandum in support of his notice of appeal sought leave to file his notice of appeal instanter, the memorandum filed on March 7, 1988, was outside the extension period permitted by Fed.R.App.P. 4(a)(5).

4
The failure of an appellant to timely file a notice of appeal deprives an appellate court of jurisdiction.  Compliance with Fed.R.App.P. 4(a) is a mandatory and jurisdictional prerequisite which this court can neither waive nor extend.   McMillan v. Barksdale, 823 F.2d 981 (6th Cir.1987);  Myers v. Ace Hardware, Inc., 777 F.2d 1099, 1102 (6th Cir.1985);  Denley v. Shearson/American Express, Inc., 733 F.2d 39 (6th Cir.1984) (per curiam);  Peake v. First Nat'l Bank & Trust Co., 717 F.2d 1016 (6th Cir.1983).  Fed.R.App.P. 26(b) specifically provides that this court cannot enlarge the time for filing a notice of appeal.

5
Accordingly, it is ORDERED that motion for counsel be denied and the appeal be and hereby is dismissed for lack of jurisdiction.  Rule 9(b)(1), Rules of the Sixth Circuit.


577 F.2d 184
98 L.R.R.M. (BNA) 2672, 84 Lab.Cas.  P 10,636
Stephan BARABAS et al., Appellants,v.PRUDENTIAL LINES, INC. and Delta Steamship Lines, Inc., Appellees,andRadio Officers Union, Intervening-Appellee.
No. 1179, Docket 78-7210.
United States Court of Appeals,Second Circuit.
Argued May 31, 1978.Decided May 31, 1978.

Michael Gottesman, Washington, D. C.  (George H. Cohen, Robert M. Weinberg and Bredhoff, Gottesman, Cohen & Weinberg, Washington, D. C.; Edwin A. Steinberg, and Lydia Tugendrajch, New York City, of counsel), for appellants.
John W. Ohlweiler, New York City (Ernest J. Collazo and Simpson Thacher & Bartlett, New York City, of counsel), for appellee Prudential Lines, Inc.
Andrew E. Zelman, New York City (Martin C. Seham, Roger H. Briton, and Surrey, Karasik, Morse & Seham, New York City, of counsel), for appellee Delta Steamship Lines, Inc.
Ernest Allen Cohen, New York City (Allen Breslow, and Jaffe, Cohen, Crystal & Mintz, New York City, of counsel), for intervening-appellee Radio Officers Union.
Before FRIENDLY and TIMBERS, Circuit Judges, and HOFFMAN, District Judge.*
PER CURIAM:

1
Our motions calendar for May 30, 1978 contained an application by members of American Radio Association (ARA), a union representing radio officers employed on ships owned by defendant-appellee Prudential Lines, Inc.  (Prudential), 13 of which are scheduled to be transferred beginning today to defendant-appellee Delta Steamship Lines, Inc.  (Delta), for an injunction pending appeal from an order of the District Court for the Southern District of New York.  The order, entered after a four day hearing before Judge Cannella, and followed by an opinion, denied a preliminary injunction to enforce the award of an arbitrator which had directed enforcement, in a modified fashion, of Article 62 of a collective bargaining agreement between ARA and Prudential that required Prudential to make protective arrangements for the radio officers in the event of sale of any vessels for operation under the United States flag.  After receiving briefs and hearing argument, we directed that the status quo be preserved pending the submission of further briefs and hearing further argument on a hearing of the appeal on May 31 and our decision thereon.

2
The case involves difficult questions relating to § 8(e) of the National Labor Relations Act and the antitrust laws, as well as a claim under § 15 of the Shipping Act.  The district judge concluded that plaintiffs had a probability of success on the first and the third, but that defendants would probably succeed on the second.  He therefore denied a preliminary injunction, although he found that "all individual plaintiffs would probably suffer irreparable harm".  There was no doubt that defendants would suffer irreparable harm from issuance of a preliminary injunction since this would abort the sale.

3
We find it unnecessary to pass upon the correctness of the judge's conclusions concerning probability of success, since we do not agree that plaintiffs made a sufficient showing of irreparable harm, as compared to the strong showing on that score made by the defendants.  The judge concluded that the collective bargaining agreement between ARA and Prudential would expire on June 15, 1978.  We do not understand that Prudential covenanted to obtain protection for the radio officers extending beyond the life of the agreement.  In light of this and the concededly grave harm to Prudential and Delta from the grant of a temporary injunction, we cannot hold that its denial was improper.  See 7 Moore, Federal Practice P 65.04(1) at 65-39 to 65-45 (2d ed. 1975); Mulligan, Preliminary Injunction In The Second Circuit, 43 Brooklyn L.Rev. 831, 839 (1977).  Our holding in no way impairs any other rights which ARA or its members may have under the collective bargaining agreement or the arbitrator's award.

4
Affirmed.

*
 Of the District Court for the Eastern District of Virginia, sitting by designation


509 F.Supp. 504 (1981)
Ralph J. JACKSON, Petitioner,
v.
Cecil McCALL, Respondent.
Civ. A. No. 81-0180.
United States District Court, District of Columbia.
March 12, 1981.

*505 ORDER
CHARLES R. RICHEY, District Judge.
Before the Court is the petition of Ralph J. Jackson for a writ of habeas corpus or, in the alternative, for a writ of mandamus. Petitioner was serving a combined sentence of twenty-three years and six months with a full-term expiration date of February 7, 1995, as a result of three federal district court convictions. He was paroled on December 5, 1979, but the United States Parole Commission issued a parole violator warrant on April 28, 1980, based upon his arrest for assault with a dangerous weapon in the District of Columbia and charges that he was using drugs and failing to report to his parole officer. On May 6, 1980, the warrant was executed by United States Marshalls in the District of Columbia, petitioner was taken into custody, and he was subsequently designated for transfer to the Federal Penitentiary at Terre Haute, Indiana, where he was to receive a final parole revocation hearing. Before he was transferred, however, he pleaded guilty to two counts of bank robbery in the United States District Court for the District of Columbia and received two concurrent ten-year sentences on August 14, 1980. While Jackson was awaiting trial on another bank robbery charge in the federal district court in Baltimore, Maryland, he was taken to the Federal Penitentiary in Lewisburg, Pennsylvania, on September 24, in an effort to present him in Terre Haute for a parole revocation hearing. Then, on October 16, 1980, the United States Parole Commission withdrew the April 28, 1980, parole violator warrant and issued a new violator warrant on October 17 on the basis of the two bank robbery convictions in the District of Columbia and the pending bank robbery charge in Baltimore. On November 13, 1980, the Baltimore district court sentenced petitioner to another seven years' imprisonment upon his plea of guilty to the bank robbery charge.
Jackson filed the instant petition pro se on January 26, 1981. In essence, he asserts that the failure to provide him with a timely final parole revocation hearing on the alleged violations underlying the April 28, 1980, parole violator warrant infringed upon his constitutional rights to due process and equal protection. Furthermore, petitioner claims that the withdrawal of the *506 April 28 warrant was not done in accordance with the standards set forth in the regulations governing the United States Parole Commission, 28 C.F.R. §§ 2.1-2.60 (1980), and Morrissey v. Brewer, 408 U.S. 471, 92 S.Ct. 2593, 33 L.Ed.2d 484 (1972). Therefore, Jackson argues, both the April 28 warrant and the subsequent warrant issued on October 17 are invalid.
In turn, respondent Cecil McCall, chairman of the United States Parole Commission, urges that petitioner's claims for relief are moot because the April 28 warrant was withdrawn and the Parole Commission is no longer proceeding on the charges of assault, drug use, and the failure to report. The new parole violator warrant is founded upon the more recent bank robbery convictions in the District of Columbia and the similar charge in Baltimore. These alleged parole violations occurred in 1980; they clearly antedate the expiration of petitioner's original sentence, February 7, 1995, and, therefore, the Parole Commission has jurisdiction to issue the new warrant.
The Court finds that Jackson's petition for a writ of habeas corpus or, in the alternative, for a writ of mandamus must be denied. With respect to the application for a writ of habeas corpus, the Court is governed by 28 U.S.C. § 2241. That section provides that habeas corpus will not extend to a prisoner unless he is "in custody," and it is implicit in the Supreme Court's opinion in Moody v. Daggett, 429 U.S. 78, 88, 97 S.Ct. 274, 279, 50 L.Ed.2d 236 (1976), that the execution of a parole violator warrant and custody under that warrant satisfies the "custody" requirement. Furthermore, it is well established that a final revocation hearing "must be tendered within a reasonable time after the parolee is taken into custody." Morrissey v. Brewer, 408 U.S. at 488-89, 92 S.Ct. at 2603-04 (1972).
Nevertheless, the Court agrees with respondent that petitioner's attacks upon the April 28, 1980, warrant are moot because the warrant was withdrawn. Neither constitutional considerations as discussed in Morrissey v. Brewer, id., nor the statute and regulations relating to the revocation of parole, 18 U.S.C. §§ 4213-14 and 28 C.F.R. §§ 2.44-2.52, entitle petitioner to a final revocation hearing subsequent to the withdrawal of the warrant citing violations upon which that hearing was to be based. The Court also notes that none of those authorities even discusses the procedure to be followed in order to effect such a withdrawal. Logic dictates that a parolee needs no protection when he ceases to be threatened with the revocation of his parole on the basis of certain violations of his parole conditions. However, if, as in the instant case, new violations are alleged, the parolee is safeguarded by the procedures enunciated in Morrissey v. Brewer, id., Moody v. Daggett, 429 U.S. 78, 97 S.Ct. 274, 50 L.Ed.2d 236, and the statute and regulations referred to above. Because petitioner has not yet been denied any of those protections since the issuance of the second parole violator warrant on October 17, 1980, habeas corpus will not lie against the more recent warrant.
A writ of mandamus is similarly unavailable to petitioner Jackson. This Court has the authority to grant such a writ under 28 U.S.C. § 1651. However, "only where the duty to be performed is ministerial and the obligation to act peremptory and plainly defined," will mandamus issue. Central South Carolina Chapter, Society of Professional Journalists, Sigma Delta Chi v. United States District Court for the District of South Carolina, 551 F.2d 559, 561-62 (4th Cir. 1977), cert. denied, 434 U.S. 1022, 98 S.Ct. 749, 54 L.Ed.2d 771 (1978). See also Interstate Commerce Commission v. New York, New Haven & Hartford Railroad Co., 287 U.S. 178, 203-04, 53 S.Ct. 106, 113-14, 77 L.Ed. 248 (1932); Coleman v. Burnett, 477 F.2d 1187, 1202 (D.C.Cir.1973); Morgan v. Hines, 149 F.2d 21, 22 (D.C.Cir.), cert. denied, 326 U.S. 734, 66 S.Ct. 42, 90 L.Ed. 437 (1945). As demonstrated above, the United States Parole Commission may withdraw a parole violator warrant at will, and it has no obligation whatsoever to provide a final revocation hearing on the charges supporting a parole violator warrant when that warrant has been withdrawn. Furthermore, *507 there is precedent to the effect that mandamus "will not be granted in aid of those who do not come into court with clean hands." United States ex rel. Turner v. Fisher, 222 U.S. 204, 209, 32 S.Ct. 37, 38, 56 L.Ed. 165 (1911). Having been convicted of bank robbery three times since he was released on parole, petitioner can hardly claim that he brings his petition for a writ of mandamus to the Court with clean hands.
Upon consideration of the entire record herein, it is, by the Court, this 12th day of March, 1981,
ORDERED, that Ralph J. Jackson's petition for a writ of habeas corpus or, in the alternative, for a writ of mandamus be, and the same hereby is, denied.


                                                                           FILED
                            NOT FOR PUBLICATION
                                                                           FEB 19 2016
                    UNITED STATES COURT OF APPEALS                      MOLLY C. DWYER, CLERK
                                                                         U.S. COURT OF APPEALS

                            FOR THE NINTH CIRCUIT

ISMAEL RODRIGUEZ,                                No. 12-74137

              Petitioner,                        Agency No. A092-828-245

  v.
                                                 MEMORANDUM*
LORETTA E. LYNCH, Attorney General,

              Respondent.

                     On Petition for Review of an Order of the
                         Board of Immigration Appeals

                     Argued and Submitted February 10, 2016
                              Pasadena, California

Before: KLEINFELD, McKEOWN, and IKUTA, Circuit Judges.

       An IJ found Ismael Rodriguez removable, ineligible for waiver of

inadmissibility, and ineligible for suspension of deportation. The Board of

Immigration Appeals affirmed, and denied Rodriguez’s motion reopen. We

        *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
dismiss Rodriguez’s petition in part for lack of jurisdiction, and deny in part

because the Board did not abuse its discretion.

      To the extent that Rodriguez’s motion relied on errors of law in the Board’s

May 24, 2012 decision, the Board correctly recharacterized his motion as an

untimely motion to reconsider. See 8 U.S.C. § 1229a(c)(6)(B)–(C); Iturribarria v.

INS, 321 F.3d 889, 895 (9th Cir. 2003). To the extent that Rodriguez moved to

take account of new law and reopen his case sua sponte, we do not have

jurisdiction to review the Board’s denial. See Minasyan v. Mukasey, 553 F.3d

1224, 1229 (9th Cir. 2009). Rodriguez made only legal arguments and did not

provide evidence of new facts. “A motion to reopen . . . is purely fact-based,

seeking to present newly discovered facts or changed circumstances since a

petitioner’s hearing.” Doissaint v. Mukasey, 538 F.3d 1167, 1170 (9th Cir. 2008)

(citing 8 U.S.C. § 1229a(c)(7)(B); 8 C.F.R. § 1003.2(c)). It would be a “useless

formality” to remand to the Board. Vista Hill Found., Inc. v. Heckler, 767 F.2d

556, 566 n.9 (9th Cir. 1985) (quotation omitted).

                                           2
      The petition must be denied to the extent that it is a motion to reopen, and

dismissed to the extent that it seeks review of the Board’s exercise of discretion not

to reopen sua sponte.

      PETITION DENIED IN PART, DISMISSED IN PART.

                                          3