An order of a court of equity, restraining defendants from
boycotting complainant by publishing statements that complainant
was guilty of unfair trade, does not amount to an unconstitutional
abridgment of free speech; the question of the validity of the
order involves only the power of the court to enjoin the
boycott.
Quaere as to what constitutes a boycott that may be
enjoined by a court of equity; but, in order that it may be
enjoined, it must appear that there is a conspiracy causing
irreparable damage to complainant's business or property.
Where conditions exist that justify the enjoining of a boycott,
the publication and use of letters, circulars and printed matter
may constitute the means of unlawfully continuing the boycott and
amount to a violation of the order of injunction.
The Anti-trust Act of 1890 applies to any unlawful combination
resulting in restraint of interstate commerce including boycotts
and blacklisting, whether made effective by acts, words or printed
matter.
Loewe v. Lawlor, 208 U. S. 274.
The Court's protective powers extend to every device whereby
property is irreparably damaged or interstate commerce restrained;
otherwise the Anti-Trust Act would be rendered impotent.
Society itself is an organization, and does not object to
organizations for social, religious, business, and all other legal,
purposes.
On appeal against unlawfully exercising power of organizations,
it is the duty of government to protect the one against the many,
as well as the many against the one.
An agreement to act in concert on publication of a signal makes
the words used as the signal amount to verbal acts, and, when the
facts justify it, the court having jurisdiction can enjoin the use
of the words in such connection; and so held as to words "unfair"
and "we don't patronize" as used in this case for the purpose of
continuing a boycott.
Civil and criminal contempts are essentially different, and are
governed by different rules of procedure.
A proceeding, instituted by an aggrieved party to punish the
other
Page 221 U. S. 419
party for contempt for affirmatively violating an injunction in
the same action in which the injunction order was issued, and
praying for damages and costs, is a civil proceeding in contempt,
and is part of the main action, and the court cannot punish the
contempt by imprisonment for a definite term; the only punishment
is by fine measured by the pecuniary injury sustained.
In criminal proceedings for contempt, the party against whom the
proceedings are instituted is entitled to the protection of the
constitutional provisions against self-incrimination.
There is a substantial variance between the procedure adopted
and punishment imposed when a punitive sentence appropriate only to
a proceeding for criminal contempt is imposed in a proceeding in an
equity action for the remedial relief of an injured party.
Where the main suit in which an injunction order has been
granted is settled and discontinued, every proceeding which is a
part thereof, or dependent thereon, is also necessarily settled as
between the parties; and so held as to a proceeding instituted by
the party aggrieved against the other party for violation of an
injunction.
The fact that the party aggrieved by the violation of an
injunction deprives himself, by settling the main case, of the
right to pursue the violator for contempt does not prevent the
court, whose order was violated, from instituting proceedings to
vindicate its authority; and, in this case, the dismissal of the
civil contempt proceeding is without prejudice to the power and
right of the court whose injunction was violated to punish for
contempt by proper proceedings.
33 App.D.C. 516 reversed.
This is a proceeding to reverse a judgment finding that Samuel
Gompers, John Mitchell, and Frank Morrison were guilty of contempt
in violating the terms of an injunction restraining them from
continuing a boycott, or from publishing any statement that there
was or had been a boycott against the Buck's Stove & Range
Company. The contempt case grew out of litigation reported in 33
App.D.C. 83, 516. It will only be necessary to briefly refer to the
facts set out in that record.
The American Federation of Labor is composed of voluntary
associations of labor unions with a large membership. It publishes
the American Federationist, which has a wide circulation among the
public and the Federation.
Page 221 U. S. 420
Samuel Gompers is president and editor of the paper. John
Mitchell is vice president of the Federation and president of the
United Mine Workers, one of the affiliated unions. Frank Morrison
has charge of the circulation of the paper. The Federation had a
difference as to the hours of labor with the Buck's Stove &
Range Company, of which J. W. Van Cleave was president, who was
also president of the American Manufacturers' Association. This
controversy over the hours of work resulted in a boycott's being
declared against the Buck's Stove & Range Company, and it was
thereupon declared "unfair," and was published in the American
Federationist on the "Unfair" and "We Don't Patronize" lists. The
company filed in the Supreme Court of the District of Columbia its
bill against the Federation, the defendants above named and other
officers, alleging that the defendants had entered into a
conspiracy to restrain the company's state and interstate business,
in pursuance of which they had boycotted it, published it on the
unfair lists, and had by threats also coerced merchants and others
to refrain from buying Buck's products for fear that they
themselves would be boycotted if they continued to deal with that
company. The result of the boycott had been to prevent persons from
dealing with it, and had greatly lessened its business and caused
irreparable damage.
After a lengthy hearing, the court, on December 18, 1907, signed
a temporary injunction, which became effective when the bond
required was given on December the 23d. The order is published in
the margin.
*
Page 221 U. S. 421
Thereafter, testimony was regularly taken, and, on March 23d,
1908, the injunction was made permanent, with provisions almost
identical with the temporary order of December 17, 1907.
From this final decree, the defendants appealed, but before
Page 221 U. S. 422
a decision was had, the Buck's Stove & Range Company began
contempt proceedings by filing in the Supreme Court of the District
a petition entitled "
Buck's Stove & Range Company,
Plaintiff v. The American Federation of Labor et al.,
Defendants, No. 27,305, Equity," alleging that petitioner had
"filed in this cause its original bill of complaint, naming as
defendants, among others, Samuel Gompers, Frank Morrison, and John
Mitchell." All of the record and testimony in the original cause
was made a part of the petition, as follows:
"Reference is hereby made to the original bill and exhibits
filed, the answer and amended answer of the defendants, the
testimony taken on both sides, the original order restraining and
enjoining the defendants
pendente lite, and the final
decree in the cause, and each and every other paper and proceeding
in this cause from the institution of the suit to the filing of
this
Page 221 U. S. 423
petition, and it is prayed that the same may be taken and read
as a part thereof at any and all hearings on this petition, whether
in this court or on appeal from its decision herein rendered."
Some of the publications were charged to be in violation of the
terms of the temporary injunction, dated December 23, 1907, and
others were alleged to be in violation of the final decree dated
March 23, 1908.
The petition set out in nine distinct paragraphs the speeches,
editorials, and publications made at different times by the several
defendants, charging that in each instance they continued and were
intended to continue the boycott, and to republish the fact that
the complainant was or had been on the "unfair list." It concluded
by alleging that by the devices, means, speeches, and publications
set forth, and in contempt of court, the defendants had disobeyed
its orders and violated the injunction. The prayer was (1) that the
defendants be required to show cause why they should not be
attached for contempt, and adjudged by the court to be in contempt
of its order and its decree in this cause, and be punished for the
same, (2) and that petitioner may have such other and further
relief as the nature of its case may require. Signed: Buck's Stove
& Range Company, by J. W. Van Cleve, president. It was also
sworn to by the president of the company and signed by its
solicitors.
A rule to show cause issued, requiring each of the defendants to
show cause why they should not be adjudged to be in contempt and be
punished for the same. Each of the defendants answered under oath,
and, as treating the contempt proceeding as a part of the original
cause, admitted the allegations as to the history of the litigation
in paragraphs 2, 3, 4, and 5 of the petition, but, "for greater
accuracy, refer to the record in this cause." Publications were
admitted, but explained. Each of the defendants denied under oath
that he had been in disregard or
Page 221 U. S. 424
contempt of the court's order, and denied that any of the acts
and charges complained of constituted a violation of the order.
There were several issues of fact on which much evidence was taken.
This related to the question of intent, and whether there had been
a purpose and plan to evade any injunction which might be granted.
There was also an issue as to whether John Mitchell had put a
resolution to the convention of the United Mine Workers; whether
Samuel Gompers and Frank Morrison had rushed the mailing of the
January issue of the American Federationist, on December 22, so as
to avoid the injunction dated December 17, which became operative
on giving bond by complainant on December 23; and also whether they
had thereafter sold and circulated copies of this issue containing
the Buck's Stove Company on the "Unfair" and "We Don't Patronize"
lists. Evidence was taken partly by deposition, partly before an
examiner in chancery.
Each of the defendants was called as a witness by the
complainant, and each testified as to facts on which the allegation
of intent or evasion was based, and as to the publications,
speeches, and resolutions which he was accused of having made, and
which the petition alleged constituted an act of disobedience and
contempt of court.
The court made a special finding as to two of the nine charges,
and then found that all three of the defendants were guilty of the
several acts charged in paragraphs 17 and 26; that respondents
Gompers and Morrison were guilty of the several acts charged in the
16th and 20th paragraphs; that respondent Morrison was guilty of
the acts charged in the 25th paragraph; and that respondent Gompers
was guilty of the several acts charged in the paragraphs 19, 21,
22, and 23. The finding concluded:
"The court, being fully advised in the premises, it is by it,
this 23d day of December, A.D. 1908, considered that the said
respondents, Samuel
Page 221 U. S. 425
Gompers, Frank Morrison, and John Mitchell, are guilty of
contempt in their said disobedience of the plain mandates of the
said injunctions; and it is therefore ordered and adjudged that the
said respondent Frank Morrison be confined and imprisoned in the
United States jail in the District of Columbia for and during a
period of six months; that the said respondent John Mitchell be
confined and imprisoned in the said jail for and during a period of
nine months; and that the respondent Samuel Gompers be confined and
imprisoned in the said jail for and during a period of twelve
months; said imprisonment as to each of said respondents to take
effect from and including the date of the arrival of said
respective respondents at said jail."
On the same day, the defendants entered an appeal, which was
allowed, and bail fixed. After notice to the defendants, the
complainant moved "the court to amend or supplement its decree by
awarding to it its costs against the defendants under the
proceedings in contempt against them." This motion was granted in
an order which recited that,
"upon consideration of the motion of complainant, filed in the
above cause, for award of its costs in the contempt proceedings in
said cause against the defendants Samuel Gompers, John Mitchell,
and Frank Morrison, and after argument by the solicitors of the
respective parties, the motion is granted, and it is ordered that
the complainant, the Buck's Stove & Range Company, do recover
against the defendants named, its costs in the said contempt
proceeding, to be taxed by the clerk, and that it have execution
therefor as at law."
The parties also entered into a stipulation, the material
portions of which are as follows:
"For the purpose of avoiding unnecessary cost in the matter of
the appeal by the defendants Samuel H. Gompers, John Mitchell, and
Frank Morrison from the judgment against them under the contempt
proceedings in the above entitled cause, it is stipulated that, . .
. with
Page 221 U. S. 426
the approval of the Court of Appeals, the record in the above
cause [
Buck's Stove & Range Co. v. American Federation of
Labor et al.] . . . may be read from by either party to the
appeal in said contempt proceedings, insofar as the same may be
relevant and material, with like effect as if the said record of
the original cause were embraced in the transcript, in the appeal
from the said contempt proceedings."
This stipulation was signed by counsel for the defendants and
for the Buck's Stove & Range Company.
The petition in the contempt proceeding, the answer, orders,
final decree, amended decree, and stipulations were all entitled in
the original cause, "
Buck Stove & Range Company v. The
American Federation of Labor, Samuel Gompers, John Mitchell, Frank
Morrison, et al." The appeal papers in the Court of Appeals of
the District were, and those here on certiorari are, entitled
"
Samuel Gompers, John Mitchell, and Frank Morrison, Appellants,
v. The Buck Stove & Range Company."
On December 23d, 1908, the defendants were found guilty of
contempt, and, on the same day, they appealed. On March 26, 1909,
the Court of Appeals rendered its decision in favor of the Buck's
Stove Company on the appeal from the decree of March 23d, 1908, and
found that the decree was, in some respects, erroneous, and
modified it accordingly. From that decision, both parties appealed
to this court, the Buck's Stove Company contending that it was
error to modify in any respect; the American Federation of Labor
et al. contending that the Court of Appeals erred in not
reversing and setting aside as a whole the decree granting the
injunction.
There subsequently came on to be heard in the Court of Appeals
of the District of Columbia the appeal from the decree in the
contempt proceeding. On that hearing, the Buck's Stove & Range
Company moved to dismiss the appeal because the evidence had not
been incorporated
Page 221 U. S. 427
in a bill of exceptions, claiming that it was a criminal
proceeding, and was governed by the practice applicable to law
cases. This motion was resisted by the defendants, who contended
that the contempt proceedings were a part of the equity cause, and
that the case was to be governed by equity practice, in which the
whole record could be examined on appeal.
The Court of Appeals held that the proceeding was for criminal
contempt, and that, for want of a bill of exceptions, it could not
examine the testimony, but must treat the findings of fact by the
judge as conclusive and limit its consideration to the question
whether, as a matter of law, the petition charged and the finding
found acts which amounted to a violation of the injunction. It held
that some of the facts alleged did constitute a good charge of
contempt, and, as each of the defendants was found to be guilty of
at least one of such acts of disobedience constituting a violation
of the injunction and a contempt of court, it held that the
conviction must be sustained. This ruling was put on the ground
that, on a general verdict of guilty, the conviction and sentence
on an indictment containing several counts, some of which were bad,
must stand if those which were good would sustain the sentence. It
therefore not only refused to examine the evidence to determine
whether the proof was sufficient to sustain the conviction, but it
also declined to consider the sufficiency of the other charges in
the petition, of which the defendants were also found guilty. It
affirmed, the judgment of the Supreme Court of the District. The
defendants thereupon applied for and obtained a writ of
certiorari.
The appeal and cross-appeal in the original cause of the
Buck's Stove & Range Company v. American Federation of
Labor were heard here together. During the argument, it
appeared that the parties had settled their differences, and, on
the ground that the questions were moot,
Page 221 U. S. 428
this Court dismissed both appeals.
219 U.
S. 581. Following this disposition of those appeals, and
on the same day, the contempt case was called, and was argued by
counsel for the Buck's Stove & Range Company and counsel for
Samuel Gompers, Frank Morrison, and John Mitchell.
Page 221 U. S. 435
MR. JUSTICE LAMAR, after making the foregoing statement,
delivered the opinion of the Court:
The defendants, Samuel Gompers, John Mitchell, and Frank
Morrison, were found guilty of contempt of court in making certain
publications prohibited by an injunction from the Supreme Court of
the District of Columbia. They were sentenced to imprisonment for
twelve, nine, and six months, respectively, and this proceeding is
prosecuted to reverse that judgment.
The order alleged to have been violated was granted in the
equity suit of the "
Buck's Stove & Range Company
v.
Page 221 U. S. 436
The American Federation of Labor and others," in which
the court issued an injunction restraining all the defendants from
boycotting the complainant, or from publishing or otherwise making
any statement that the Buck's Stove & Range Company was, or had
been, on the "Unfair" or "We Don't Patronize" lists. Some months
later, the complainant filed a petition in the cause, alleging that
the three defendants above named, parties to the original cause, in
contempt of court and in violation of its order, had disobeyed the
injunction by publishing statements which either directly or
indirectly called attention to the fact that the Buck's Stove &
Range Company was on the "Unfair" list, and that they had thereby
continued the boycott which had been enjoined.
The defendants filed separate answers under oath, and each
denied: (1) That they had been in contempt or disregard of the
court's orders. (2) That the statements complained of constituted
any violation of the order; and, on the argument, (3) contended
that if the publication should be construed to amount to a
violation of the injunction, they could not be punished therefor,
because the court must not only possess jurisdiction of the parties
and the subject matter, but must have authority to render the
particular judgment. Insisting, therefore, that the court could not
abridge the liberty of speech or freedom of the press, the
defendants claim that the injunction as a whole was a nullity, and
that no contempt proceeding could be maintained for any
disobedience of any of its provisions, general or special.
If this last proposition were sound, it would be unnecessary to
go further into an examination of the case, or to determine whether
the defendants had in fact disobeyed the prohibitions contained in
the injunction.
Ex parte Rowland, 104
U. S. 612. But we will not enter upon a discussion of
the constitutional question raised, for the general provisions of
the injunction did not, in terms,
Page 221 U. S. 437
restrain any form of publication. The defendant's attack on this
part of the injunction raises no question as to an abridgment of
free speech, but involves the power of a court of equity to enjoin
the defendants from continuing a boycott which, by words and
signals, printed or spoken, caused or threatened irreparable
damage.
Courts differ as to what constitutes a boycott that may be
enjoined. All hold that there must be a conspiracy causing
irreparable damage to the business or property of the complainant.
Some hold that a boycott against the complainant, by a combination
of persons not immediately connected with him in business, can be
restrained. Others hold that the secondary boycott can be enjoined
where the conspiracy extends not only to injuring the complainant,
but secondarily coerces or attempts to coerce his customers to
refrain from dealing with him by threats that unless they do, they
themselves will be boycotted. Others hold that no boycott can be
enjoined unless there are acts of physical violence, or
intimidation caused by threats of physical violence.
But whatever the requirement of the particular jurisdiction, as
to the conditions on which the injunction against a boycott may
issue, when these facts exist, the strong current of authority is
that the publication and use of letters, circulars, and printed
matter may constitute a means whereby a boycott is unlawfully
continued, and their use for such purpose may amount to a violation
of the order of injunction.
Reynolds v. Davis, 198
Massachusetts 300;
Sherry v. Perkins, 147 Massachusetts
212;
Davis v. New England R. Pub. Co., 203 Massachusetts
470;
Brown v. Jacobs' Pharmacy Co., 115 Georgia 431;
Gray v. Council, 91 Minnesota 183;
Lohse Patent Door
Co. v. Fuelle, 215 Missouri 421, 472;
Thomas v. Railroad
Co., 62 Fed.Rep. 803, 821;
Continental Co. v. Board of
Underwriters, 67 Fed.Rep. 312;
Beck v. Teamsters'
Union, 118 Mich. 527;
Pratt Food Co. v. Bird, 148
Michigan 632;
Barr v. Essex, 53 N.J.Eq. 102.
Page 221 U. S. 438
See also Ludwig v. Western Union Telegraph Co.,
216 U. S. 156;
Bitterman v. L. & N. R.R., 207
U. S. 206;
Board of Trade v. Christie,
198 U. S. 236;
Scully v. Bird, 209 U. S.
489.
While the bill in this case alleged that complainant's
interstate business was restrained, no relief was asked under the
provisions of the Sherman Anti-trust Act. But if the contention be
sound that no court, under any circumstances, can enjoin a boycott
if spoken words or printed matter were used as one of the
instrumentalities by which it was made effective, then it could not
do so even if interstate commerce was restrained by means of a
blacklist, boycott, or printed device to accomplish its purpose.
And this, too, notwithstanding § 4 (act of July 2, 1890, c.
647, 26 Stat. 209) of that Act provides that, where such commerce
is unlawfully restrained, it shall be the duty of the Attorney
General to institute proceedings in equity to prevent and enjoin
violations of the statute.
In
Loewe v. Lawler, 208 U. S. 306,
the statute was held to apply to any unlawful combination resulting
in restraint of interstate commerce. In that case, the damages sued
for were occasioned by acts which, among other things, did include
the circulation of advertisements. But the principle announced by
the Court was general. It covered any illegal means by which
interstate commerce is restrained, whether by unlawful combinations
of capital or unlawful combinations of labor; and we think, also,
whether the restraint be occasioned by unlawful contracts, trusts,
pooling arrangements, blacklists, boycotts, coercion, threats,
intimidation, and whether these be made effective, in whole or in
part, by acts, words, or printed matter.
The Court's protective and restraining powers extend to every
device whereby property is irreparably damaged or commerce is
illegally restrained. To hold that the
Page 221 U. S. 439
restraint of trade under the Sherman antitrust act, or on
general principles of law, could be enjoined, but that the means
through which the restraint was accomplished could not be enjoined,
would be to render the law impotent.
Society itself is an organization, and does not object to
organizations for social, religious, business, and all legal
purposes. The law, therefore, recognizes the right of workingmen to
unite and to invite others to join their ranks, thereby making
available the strength, influence, and power that come from such
association. By virtue of this right, powerful labor unions have
been organized.
But the very fact that it is lawful to form these bodies, with
multitudes of members, means that they have thereby acquired a vast
power, in the presence of which the individual may be helpless.
This power, when unlawfully used against one, cannot be met except
by his purchasing peace at the cost of submitting to terms which
involve the sacrifice of rights protected by the Constitution; or
by standing on such rights, and appealing to the preventive powers
of a court of equity. When such appeal is made, it is the duty of
Government to protect the one against the many, as well as the many
against the one.
In the case of an unlawful conspiracy, the agreement to act in
concert when the signal is published gives the words "Unfair," "We
Don't Patronize," or similar expressions a force not inhering in
the words themselves, and therefore exceeding any possible right of
speech which a single individual might have. Under such
circumstances, they become what have been called "verbal acts," and
as much subject to injunction as the use of any other force whereby
property is unlawfully damaged. When the facts in such cases
warrant it, a court having jurisdiction of the parties and subject
matter has power to grant an injunction.
Passing, then, to the consideration of the question as to
whether the defendants disobeyed the injunction and were
Page 221 U. S. 440
therefore guilty of contempt, we are met with the objection
that, for want of a bill of exceptions, we must treat the decree as
conclusive as to the fact of disobedience, and can only examine the
petition and the finding to determine whether one charges and the
other finds acts which constitute a contempt of court. This view
was adopted by the majority of the Court of Appeals, which treated
this as a criminal proceeding, refused to examine the testimony,
and affirmed the judgment in analogy to the rule that, on a general
verdict of guilty upon an indictment containing several counts,
some of which were bad, the conviction would not be reversed if
there was one good count warranting the judgment.
The rule originated in cases where the finding of guilt was by
the jury, while the sentence was by the judge. In such cases, the
presumption is that the judge ignored the finding of the jury on
the bad counts, and sentenced only on those which were sufficient
to sustain the conviction.
But there is no room for such presumption here. The trial judge
made no general finding that the defendants were guilty. But, in
one decree, he adjudged that each defendant was respectively guilty
of the nine independent acts set out in separate paragraphs of the
petition. Having found that each was guilty of these separate acts,
he consolidated the sentence without indicating how much of the
punishment was imposed for the disobedience in any particular
instance. We cannot suppose that he found the defendants guilty of
an act charged unless he considered that it amounted to a violation
of the injunction. Nor can we suppose that, having found them
guilty of these nine specific acts, he did not impose some
punishment for each. Instead, therefore, of affirming the judgment
if there is one good count, it should be reversed if it should
appear that the defendants have been sentenced on any count which,
in law or in fact, did not constitute a disobedience of the
injunction.
Page 221 U. S. 441
But, in making such investigation, it is again insisted that
this is a proceeding at law for criminal contempt, where the
findings of fact by the trial judge must be treated as conclusive,
and that our investigation must be limited solely to the question
whether, as a matter of law, the acts of alleged disobedience set
out in the finding constitute contempt of court.
This contention on the part of the Buck's Stove & Range
Company prevents a consideration of the case on its merits, and
makes it necessary to enter into a discussion of questions more or
less technical, as to whether this was a proceeding in equity or at
law. Where results so controlling depend upon proper
classification, it becomes necessary carefully to consider whether
this was a case at law for criminal contempt, where the evidence
could not be examined, for want of a bill of exceptions, or a case
in equity for civil contempt, where the whole record may be
examined on appeal and a proper decree entered.
Contempts are neither wholly civil nor altogether criminal.
And
"it may not always be easy to classify a particular act as
belonging to either one of these two classes. It may partake of the
characteristics of both."
Bessette v. Conkey, 194 U. S. 329.
But in either event, and whether the proceedings be civil or
criminal, there must be an allegation that, in contempt of court,
the defendant has disobeyed the order, and a prayer that he be
attached and punished therefor. It is not the fact of punishment,
but rather its character and purpose, that often serve to
distinguish between the two classes of cases. If it is for civil
contempt, the punishment is remedial, and for the benefit of the
complainant. But if it is for criminal contempt, the sentence is
punitive, to vindicate the authority of the court. It is true that
punishment by imprisonment may be remedial as well as punitive, and
many civil contempt proceedings have resulted not only in the
imposition of a fine, payable to the complainant, but also
Page 221 U. S. 442
in committing the defendant to prison. But imprisonment for
civil contempt is ordered where the defendant has refused to do an
affirmative act required by the provisions of an order which,
either in form or substance, was mandatory in its character.
Imprisonment in such cases is not inflicted as a punishment, but is
intended to be remedial by coercing the defendant to do what he had
refused to do. The decree in such cases is that the defendant stand
committed unless and until he performs the affirmative act required
by the court's order.
For example: if a defendant should refuse to pay alimony, or to
surrender property ordered to be turned over to a receiver, or to
make a conveyance required by a decree for specific performance, he
could be committed until he complied with the order. Unless there
were special elements of contumacy, the refusal to pay or to comply
with the order is treated as being rather in resistance to the
opposite party than in contempt of the court. The order for
imprisonment in this class of cases, therefore, is not to vindicate
the authority of the law, but is remedial, and is intended to
coerce the defendant to do the thing required by the order for the
benefit of the complainant. If imprisoned, as aptly said in
In
Re Nevitt, 117 Fed.Rep. 451, "he carries the keys of his
prison in his own pocket." He can end the sentence and discharge
himself at any moment by doing what he had previously refused to
do.
On the other hand, if the defendant does that which he has been
commanded not to do, the disobedience is a thing accomplished.
Imprisonment cannot undo or remedy what has been done, nor afford
any compensation for the pecuniary injury caused by the
disobedience. If the sentence is limited to imprisonment for a
definite period, the defendant is furnished no key, and he cannot
shorten the term by promising not to repeat the offense. Such
imprisonment operates not as a remedy coercive in its
Page 221 U. S. 443
nature, but solely as punishment for the completed act of
disobedience.
It is true that either form of imprisonment has also an
incidental effect. For if the case is civil and the punishment is
purely remedial, there is also a vindication of the court's
authority. On the other hand, if the proceeding is for criminal
contempt and the imprisonment is solely punitive, to vindicate the
authority of the law, the complainant may also derive some
incidental benefit from the fact that such punishment tends to
prevent a repetition of the disobedience. But such indirect
consequences will not change imprisonment which is merely coercive
and remedial into that which is solely punitive in character, or
vice versa.
The fact that the purpose of the punishment could be examined
with a view to determining whether it was civil or criminal is
recognized in
Doyle v. London Guarantee Co., 204
U. S. 605,
204 U. S. 607,
where it was said that,
"while it is true that the fine imposed is not made payable to
the opposite party, compliance with the order relieves from
payment, and in that event there is no final judgment of either
fine or imprisonment. . . . The proceeding is against a party, the
compliance with the order avoids the punishment, and there is
nothing in the nature of a criminal suit or judgment imposed for
public purposes upon a defendant in a criminal proceeding."
Bessette v. Conkey, 194 U. S. 328;
In Re Nevitt, 117 Fed.Rep. 448;
Howard v. Durand,
36 Georgia 359;
Phillips. v. Welch, 11 Nevada 187.
The distinction between refusing to do an act commanded --
remedied by imprisonment until the party performs the required act
-- and doing an act forbidden -- punished by imprisonment for a
definite term -- is sound in principle and generally, if not
universally, affords a test by which to determine the character of
the punishment.
In this case, the alleged contempt did not consist in the
defendant's refusing to do any affirmative act required,
Page 221 U. S. 444
but rather in doing that which had been prohibited. The only
possible remedial relief for such disobedience would have been to
impose a fine for the use of complainant, measured in some degree
by the pecuniary injury caused by the act of disobedience. Rapalje,
Contempts, §§ 131-134;
Wells v. Oregon Co. 19
Fed.Rep. 20;
In re North Bloomfield Co., 27 Fed.Rep. 795;
Sabin v. Fogarty, 70 Fed.Rep. 483.
But when the court found that the defendants had done what the
injunction prohibited, and thereupon sentenced them to jail for
fixed terms of six, nine, and twelve months, no relief whatever was
granted to the complainant, and the Buck's Stove & Range
Company took nothing by that decree.
If, then, as the Court of Appeals correctly held, the sentence
was wholly punitive, it could have been properly imposed only in a
proceeding instituted and tried as for criminal contempt. The
question as to the character of such proceedings has generally been
raised, in the appellate court, to determine whether the case could
be reviewed by writ of error or on appeal.
Bessette v.
Conkey, 194 U. S. 324. But
it may involve much more than mere matters of practice. For,
notwithstanding the many elements of similarity in procedure and in
punishment, there are some differences between the two classes of
proceedings which involve substantial rights and constitutional
privileges. Without deciding what may be the rule in civil
contempt, it is certain that, in proceedings for criminal contempt,
the defendant is presumed to be innocent, he must be proved to be
guilty beyond a reasonable doubt, and cannot be compelled to
testify against himself.
Boyd v. United States,
116 U. S. 616;
United States v. Jose, 63 Fed.Rep. 951;
State v.
Davis, 50 W. Va. 100;
King v. Ohio Ry, 7 Biss. 529;
Sabin v. Fogarty, 70 Fed.Rep. 482, 483;
Drakeford v.
Adams, 98 Georgia 724.
There is another important difference. Proceedings for
Page 221 U. S. 445
civil contempt are between the original parties, and are
instituted and tried as a part of the main cause. But, on the other
hand, proceedings at law for criminal contempt are between the
public and the defendant, and are not a part of the original cause.
The Court of Appeals, recognizing this difference, held that this
was not a part of the equity cause of the
Buck's Stove &
Range Company v. American Federation of Labor, and said
that
"the order finding the defendants guilty of contempt was not an
interlocutory order in the injunction proceeding. It was in a
separate action, one personal to the defendants, with the
defendants on one side and the court vindicating its authority on
the other."
In this view we cannot concur. We find nothing in the record
indicating that this was a proceeding with the court, or more
properly the Government, on one side and the defendants on the
other. On the contrary, the contempt proceedings were instituted,
entitled, tried, and, up to the moment of sentence, treated as a
part of the original cause in equity. The Buck's Stove & Range
Company was not only the nominal, but the actual, party on the one
side, with the defendants on the other. The Buck's Stove Company
acted throughout as complainant in charge of the litigation. As
such, and through its counsel, acting in its name, it made
consents, waivers, and stipulations only proper on the theory that
it was proceeding in its own right in an equity cause, and not as a
representative of the United States, prosecuting a case of criminal
contempt. It appears here also as the sole party in opposition to
the defendants, and its counsel, in its name, have filed briefs and
made arguments in this court in favoring affirmance of the judgment
of the court below.
But, as the Court of Appeals distinctly held that this was not a
part of the equity cause, it will be proper to set out in some
detail the facts on this subject as they appear in the record.
Page 221 U. S. 446
In the first place, the petition was not entitled "
United
States v. Samuel Gompers et al." or "
In re Samuel Gompers
et al.," as would have been proper, and, according to some
decisions, necessary, if the proceedings had been at law for
criminal contempt. This is not a mere matter of form, for
manifestly every citizen, however unlearned in the law, by mere
inspection of the papers in contempt proceedings ought to be able
to see whether it was instituted for private litigation or for
public prosecution, whether it sought to benefit the complainant or
vindicate the court's authority. He should not be left in doubt as
to whether relief or punishment was the object in view. He is not
only entitled to be informed of the nature of the charge against
him, but to know that it is a charge, and not a suit.
United
States v. Cruikshank, 92 U. S. 542,
92 U. S.
559.
Inasmuch, therefore, as proceedings for civil contempt are a
part of the original cause, the weight of authority is to the
effect that they should be entitled therein. But the practice has
hitherto been so unsettled in this respect that we do not now treat
it as controlling, but only as a fact to be considered along with
others, as was done in
Worden v. Searle, 121 U.
S. 25, in determining a similar question. Thus
considering it, we find that the petition instituting the contempt
proceeding was entitled in the main cause, "
Buck's Stove &
Range Company, plaintiff v. American Federation of Labor et al.,
defendants, No. 27,305, Equity," and that the answers of the
defendants, every report by the examiner in chancery, every
deposition, motion, and stipulation, every order, including the
final decree and the amended decree, were all uniformly entitled in
the equity cause. Not only the pleadings in the original cause, but
all the testimony, oral and written, was, by reference in the
petition, made a part of the contempt proceedings. The trial judge
quoted largely from this oral testimony thus introduced in bulk,
and the severity
Page 221 U. S. 447
and character of the sentence indicate that he was largely
influenced by this evidence, which disclosed the great damage done
to the complainant's business by the boycott before the injunction
issued.
It is argued the defendants' answers concluded with a statement
that, as questions of criminal and
quasi-criminal intent
were involved, a jury was better qualified to pass on the issue
than a judge, and, in the event he should be of opinion that the
charges had not been sworn away, they moved that issues of fact
should be framed and submitted to a jury. Such a motion was not
inconsistent with the theory that this was a proceeding for civil
contempt in equity, but was in strict accord with the practice
under which questions of fact may be referred by the chancellor to
a jury for determination.
In proceedings for civil contempt, the complainant, if
successful, is entitled to costs. Rapalje, Contempts, § 132.
And evidently on the theory that this was a civil proceeding, and
to be governed by the rules applicable to an equity cause, the
Buck's Stove & Range Company moved the court to amend the
decree so as to award to it "its costs." After argument by
solicitors for both parties, the motion was granted, and the court
adjudged that the complainant do recover against the defendants its
costs in said contempt proceeding. This ruling was no doubt
correct, as this was a civil case, but could not have been granted
in a proceeding for criminal contempt, where costs are not usually
imposed in addition to the imprisonment. Where they are awarded,
they go to the Government, for the use of its officers, as held by
Justice Miller, on circuit.
Durant v. Washington County,
Woolw. 377.
In another most important particular, the parties clearly
indicated that they regarded this as a civil proceeding. The
complainant made each of the defendants a witness for the company,
and, as such, each was required to testify
Page 221 U. S. 448
against himself -- a thing that most likely would not have been
done or suffered if either party had regarded this as a proceeding
at law for criminal contempt, because the provision of the
Constitution that "no person shall be compelled in any criminal
case to be a witness against himself" is applicable not only to
crimes, but also to
quasi-criminal and penal proceedings.
Boyd v. United States, 116 U. S. 616.
Both on account of the distinct ruling to the contrary by the
Court of Appeals and the importance of the results flowing from a
proper classification, we have with some detail discussed the facts
appearing in the record showing that both parties treated this as a
proceeding which was a part of the original equity cause. In case
of doubt, this might, of itself, justify a determination of the
question in accordance with the mutual understanding of the parties
and the procedure adopted by them. But there is another and
controlling fact, found in the brief but sufficient prayer with
which the petition concludes. We have already shown that, in both
classes of cases, there must be allegation and proof that the
defendant was guilty of contempt, and a prayer that he be punished.
The classification, then, depends upon the question as to whether
the punishment is punitive, in vindication of the court's
authority, or whether it is remedial, by way of a coercive
imprisonment, or a compensatory fine, payable to the complainant.
Bearing these distinctions in mind, the prayer of the petition is
significant and determinative. After setting out in detail the acts
of alleged disobedience, the petition closes with the following
prayers: (1) "That the defendants show cause why they should not be
adjudged in contempt of court and be punished for the same;" and
(2) "that petitioner may have such other and further relief as the
nature of its case may require."
"Its case" -- not the government's case. "That petitioner may
have relief" -- not that the court's authority
Page 221 U. S. 449
may be vindicated. The Buck's Stove & Range Company was not
asserting the rights of the public, but seeking "such other and
further relief as the nature of its case may require." If it had
asked that the defendants be forced to pay a fine to the
Government, or be punished by confinement in jail, there could have
been no doubt that punishment, pure and simple, was sought.
On the other hand, if it had prayed that the court impose a fine
payable to the Buck's Stove & Range Company, the language would
have left no doubt that remedial punishment was sought. It is not
different in principle, if, instead of praying specifically for a
fine payable to itself, it asks generally for "such relief as the
nature of its case may require." In either event, such a prayer was
appropriate to a civil proceeding, and, under it, the court could
have granted that form of relief to which the petitioner was
entitled. But, as the act of disobedience consisted not in refusing
to do what had been ordered, but in doing what had been prohibited
by the injunction, there could be no coercive imprisonment, and
therefore the only relief, if any, which "the nature of
petitioner's case" admitted, was the imposition of a fine, payable
to the Buck's Stove & Range Company.
There was therefore a departure -- a variance -- between the
procedure adopted and the punishment imposed, when, in answer to a
prayer for remedial relief in the equity cause, the court imposed a
punitive sentence appropriate only to a proceeding at law for
criminal contempt. The result was as fundamentally erroneous as if,
in an action of "A vs. B, for assault and battery," the judgment
entered had been that the defendant be confined in prison for
twelve months.
If, then, this sentence for criminal contempt was erroneously
entered in a proceeding which was a part of the equity cause, it
would be necessary to set aside the order of imprisonment, examine
the testimony, and thereupon
Page 221 U. S. 450
make such decree as was proper, according to the practice in
equity causes on appeal. And if, upon the examination of the
record, it should appear that the defendants were, in fact and in
law, guilty of the contempt charged, there could be no more
important duty than to render such a decree as would serve to
vindicate the jurisdiction and authority of courts to enforce
orders and to punish acts of disobedience. For, while it is
sparingly to be used, yet the power of courts to punish for
contempts is a necessary and integral part of the independence of
the judiciary, and is absolutely essential to the performance of
the duties imposed on them by law. Without it, they are mere boards
of arbitration whose judgments and decrees would be only
advisory.
If a party can make himself a judge of the validity of orders
which have been issued, and by his own act of disobedience set them
aside, then are the courts impotent, and what the Constitution now
fittingly calls the "judicial power of the United States" would be
a mere mockery.
This power
"has been uniformly held to be necessary to the protection of
the court from insults and oppression while in the ordinary
exercise of its duty, and to enable it to enforce its judgments and
orders necessary to the due administration of law and the
protection of the rights of citizens."
Bessette v. Conkey, 194 U. S.
333.
There has been general recognition of the fact that the courts
are clothed with this power, and must be authorized to exercise it
without referring the issues of fact or law to another tribunal or
to a jury in the same tribunal. For, if there was no such authority
in the first instance, there would be no power to enforce its
orders if they were disregarded in such independent investigation.
Without authority to act promptly and independently, the courts
could not administer public justice or enforce the rights of
private litigants.
Bessette v. Conkey, 194
U. S. 337.
Congress, in recognition of the necessity of the case, has
Page 221 U. S. 451
also declared (Rev.Stat. § 725) that the courts of the
United States "shall have power . . . to punish by fine or
imprisonment . . . contempts of their authority," including
"disobedience . . . by any party . . . to any lawful . . . order .
. . of the said courts." But the very amplitude of the power is a
warning to use it with discretion, and a command never to exert it
where it is not necessary or proper. For that reason, we can
proceed no further in this case, because it is both unnecessary and
improper to make any decree in this contempt proceeding.
For, on the hearing of the appeal and cross-appeal in the
original cause in which the injunction was issued, it appeared from
the statement of counsel in open court that there had been a
complete settlement of all matters involved in the case of
Buck's Stove & Range Co. v. American Federation of Labor et
al. This Court therefore declined to further consider the
case, which had become moot, and those two appeals were dismissed.
219 U. S. 581.
When the main case was settled, every proceeding which was
dependent on it, or a part of it, was also necessarily settled --
of course, without prejudice to the power and right of the court to
punish for contempt by proper proceedings.
Worden v.
Searls, 121 U. S. 27. If
this had been a separate and independent proceeding at law for
criminal contempt, to vindicate the authority of the court, with
the public on one side and the defendants on the other, it could
not in any way have been affected by any settlement which the
parties to the equity cause made in their private litigation.
But, as we have shown, this was a proceeding in equity for civil
contempt, where the only remedial relief possible was a fine,
payable to the complainant. The company prayed "for such relief as
the nature of its case may require," and when the main cause was
terminated by a settlement of all differences between the parties,
the complainant did not require, and was not entitled to, any
Page 221 U. S. 452
compensation or relief of any other character. The present
proceeding necessarily ended with the settlement of the main cause
of which it is a part.
Bessette v. Conkey, 194
U. S. 328,
194 U. S. 333;
Worden v. Searls, 121 U. S. 27;
State v. Nathans, 49 S.Car. 207. The criminal sentences
imposed in the civil case, therefore, should be set aside.
The judgment of the Court of Appeals is reversed, and the case
remanded with directions to reverse the judgment of the Supreme
Court of the District of Columbia and remand the case to that Court
with direction that the contempt proceedings instituted by the
Buck's Stove & Range Company be dismissed, but without
prejudice to the power and right of the Supreme Court of the
District of Columbia to punish, by a proper proceeding, contempt,
if any, committed against it.
Reversed.
*
"Ordered that the American Federation of Labor, Samuel Gompers,
Frank Morrison, . . . John Mitchell, . . . their and each of their
agents, servants, attorneys, confederates, and any and all persons
acting in aid of or in conjunction with them or any of them, be,
and they are hereby, restrained and enjoined until the final decree
in said cause from conspiring, agreeing, or combining in any manner
to restrain, obstruct, or destroy the business of the complainant,
or to prevent the complainant from carrying on the same without
interference from them or any of them, and from interfering in any
manner with the sale of the product of the complainant's factory or
business by defendants, or by any other person, firm, or
corporation, and from declaring or threatening any boycott against
the complainant or its business, or the product of its factory, or
against any person, firm, or corporation engaged in handling or
selling the said product, and from abetting, aiding, or assisting
in any such boycott, and from printing, issuing, publishing, or
distributing through the mails, or in any other manner, any copy or
copies of the American Federationist, or any other printed or
written newspapers, magazine, circular, letter, or other document
or instrument whatsoever, which shall contain or in any manner
refer to the name of the complainant, its business or its product
in the 'We Don't Patronize,' or the 'Unfair' list of the
defendants, or any of them, their agents, servants, attorneys,
confederates, or other person or persons acting in aid of or in
conjunction with them, or which contains any reference to the
complainant, its business or product, in connection with the term
'Unfair' or with the 'We Don't Patronize' list, or with any other
phrase, word, or words of similar import, and from publishing or
otherwise circulating, whether in writing or orally, any statement
or notice term 'Unfair' or with the 'We Don't Patronize' attention
of the complainant's customers, or of dealers or tradesmen, or the
public, to any boycott against the complainant, its business or its
product, or that the same are, or were, or have been declared to be
'unfair,' or that it should not be purchased or dealt in or handled
by any dealer tradesman, or other person whomsoever, or by the
public, or any representation or statement of like effect or
import, for the purpose of, or tending to, any injury to or
interference with the complainant's business, or with the free and
unrestricted sale of its product, or of coercing or inducing any
dealer, person, firm, or corporation, or the public, not to
purchase, use, buy, trade in, deal in, or have in possession
stoves, ranges, heating apparatus, or other product of the
complainant, and from threatening or intimidating any person or
persons whomsoever from buying, selling, or otherwise dealing in
the complainant's product, either directly or through orders,
directions, or suggestions to committees, associations, officers,
agents, or others, for the performance of any such acts or threats
as hereinbefore above specified, and from in any manner whatsoever
impeding, obstructing, interfering with, or restraining the
complainant's business, trade, or commerce, whether in the State of
Missouri or in other States and Territories of the United States,
or elsewhere wheresoever, and from soliciting, directing, aiding,
assisting, or abetting any person or persons, company or
corporation, to do or cause to be done any of the acts or things,
aforesaid."
"And it is further ordered by the court that this order shall be
in full force, obligatory and binding upon the said defendants and
each of them and their said officers, members, agents, servants,
attorneys, confederates, and all persons acting in aid of or in
conjunction with them, upon the service of a copy thereof upon them
or their solicitors or solicitor of record in this cause:
Provided, the complainant shall first execute and file in
this cause, with a surety or sureties to be approved by the court
or one of the justices thereof, an undertaking to make good to the
defendants all damage by them suffered or sustained by reason of
wrongfully and inequitably suing out this injunction, and
stipulating that the damages may be ascertained in such manner as
the justice of this court shall direct, and that, on dissolving the
injunction, he may give judgment thereon against the principal and
sureties for said damages in the decree itself, dissolving the
injunction."
