This case arises out of petitions charging the respondents with contempt of court.
On April-9, 1937 two separate bills in equity were filed in the Supreme Judicial Court in the County of Androscoggin against certain labor organizers, some of whom were officials of the United Shoe Workers of America, an affiliate of the Committee for Industrial Organization. The plaintiffs in these bills were various shoe manufacturers located in the cities of Lewiston and Auburn who sought injunctions both temporary and permanent against the continuation of a strike alleged to have been called by the defendants and against all activities in support of such strike. On April 20th, after an extended hearing on the consolidated bills, a temporary injunction was issued declaring the strike illegal; and the defendants, their agents, servants, attorneys and representatives, were enjoined until further order of court from maintaining, encouraging, aiding and abetting said strike and from inducing, advising, counselling, or aiding the employees of the plaintiffs to continue it. Coercion, intimidation and all forms of picketing were forbidden. On April 22nd, a petition for contempt was filed by the plaintiffs against six of the defendants mentionedin the original bills, and on April 23rd a second petition was filed against Sidney Grant, an attorney who had appeared for the defendants at the injunction hearing. These two petitions'prayed that each of the respondents be adjudged in contempt on the ground that each of them in violation of the injunction had addressed meetings urging the continuation of the strike, and that three of them, Hapgood, Mackesy, and Henry, had directed picketing and had incited a riot. On May 4th a hearing opened before a jury empanelled in accordance with the provisions of P. L. 1933, Chap. 261. The respondents were found guilty and sentenced to six months in jail.
B. . S. 1930, Chap. 91, Sec. 67, in accordance with which the contempt petitions purport to have been filed, provides that “No ap
The respondents claim that the court was without jurisdiction to render any judgment against them because the contempt petitions on which the proceeding was founded were not under oath. This was a defect which was not called to the attention of the presiding Justice and possibly was not noticed by respondents’ counsel until after the hearing had ended. In fact it is not set forth specifically in the bill of exceptions. This is not, however, of importance for a want of jurisdiction is fatal in every stage of a cause and may be brought to the attention of the court at any time. Darling Automobile Company v. Hall et al., 135 Me., 382,
“Whenever a party complains in writing, and under oath, that the process, decree, or order of court, which is not for the payment of money only, has been disregarded or disobeyed by any person, summary process shall issue by order of any justice, requiring such person to appear on a day certain and show cause why he should not be adjudged guilty of contempt, and such process shall fix a time for answer to the complaint, and may fix a time for hearing on oral testimony, depositions, or affidavits, or may fix successive times for proof, counter proof, and proof in rebuttal, or the time for hearing and manner of proof may be subsequently ordered upon the return day or*493 thereafter. The court may, for good cause, enlarge the time for such hearing. If the person so summoned does not appear as directed, or does not attend the hearing at the time appointed therefor, as enlarged, or if, upon hearing, he is found guilty of such disregard or disobedience, he shall be adjudged in contempt, and the court may issue a capias to bring him before it to receive sentence, and may punish him by such reasonable fine or imprisonment as the case requires. The court may allow such offender to give bail to appear at a time certain, when such punishment may be imposed, if he continues in contempt. But when a second time found guilty of contempt in disregarding or disobeying the same order or decree, no bail shall be allowed. When such person purges himself of his contempt, the justice may remit such fine or imprisonment or any portion thereof. No appeal lies from any order or decree for such punishment, nor shall exceptions thereto be allowed, save upon questions of jurisdiction, nor in any case shall such exceptions suspend the enforcement of any such order or decree, unless the court so directs.”
This provision was first enacted in 1881, P. L. 1881, Chap. 68, Sec. 23, and has come down without change through the various revisions of the statutes in 1883, Chap. 77, Sec. 33, 1903, Chap. 79, Sec. 36, 1916, Chap. 82, Sec. 36, and 1930, Chap. 91, Sec. 67. It has been amended by the provisions of P. L. 1933, Chap. 261, but not with respect to the steps to be taken to initiate the proceedings.
At the time that Maine became a separate state in 1820, the Supreme Judicial Court was not granted general equity powers. Jurisdiction was given in certain specified cases. From time to time this was enlarged; but it was not until 1874 that full equity powers were granted. Our Court has consistently held that it has no equitable jurisdiction except in so far as it may have been conferred by legislative enactment. Tuscan v. Smith, 130 Me., 36,
In 1881, after the exercise by the court of this broad authority for a period of seven years, it was apparently felt advisable by the legislature to specify in detail the rules to govern the use of it. These were set forth with great clearness in the statute enacted at
The framers of the original act, realizing that the authority to punish for contempt was a necessary attribute of a court invested with equity jurisdiction, inserted Section 23 to define and to limit the manner in which such power should be exercised.
The power of courts to punish for contempt has existed from earliest times. It was useless to establish courts unless they had authority to punish acts which might interrupt the orderly course of judicial procedure; and it was likewise futile to confer jurisdiction to issue orders or injunctions without the power to enforce obedience to such decrees.
Contempts are of two kinds. There are those which occur in the presence of the court, which tend to bring the court into disrepute and interfere with the orderly conduct of judicial proceedings; and there are those, of which the court does not have first-hand information, for example those arising out of the failure to obey some order which the court has lawfully made. The procedure for punishment in the two cases is different. In the first the court may forthwith on its own initiative punish the offender; in the second the matter must be brought to the court’s attention by some formal pleading and sentence may be imposed only after a hearing. Androscoggin & Kennebec Railroad Company v. Androscoggin Railroad Company, 49 Me., 392. Contempts of this latter kind are sometimes divided into two classes, depending on whether the sentence imposed is punitive — to vindicate the authority of the court, or remedial — to compel obedience to a decree. Gompers v. Buck’s Stove & Range Company,
From earliest times courts have consistently required that the petition or complaint on which the process is issued to bring a contemnor before the court should be under oath or supported by affidavit. Blackstone’s Commentaries, 1807 Ed., Vol. 4, 286. Judge Daly, in The People ex rel, Larocque v. Murphy,
“The almost universal method by which contempt proceedings are begun is by an affidavit, and an examination of the authorities will generally disclose that in all contempt proceedings, save for such as are committed in the court’s immediate presence, an affidavit is essential.”
In a note to Ex parte Duncan, supra, 2 A. L. R., 225, we find the following statement:
“It is well settled that cases of contempt not committed in the immediate view or presence of the court must be brought to the attention of the court by a statement of the facts by persons who witnessed them or have knowledge of them (see R. C. L. tit. Contempt, p. 531), and the rule seems to be uniformly recognized that this statement must be made under oath, either in the form of an affidavit or by some other sworn statement.”
There can be no doubt that the purpose of our statute is declaratory of what had been the practice from earliest times.
The question presented by the arguments in this case is whether the requirement of the statute that the complaint must be verified is jurisdictional. We must hold that it is and if so the defect is fatal, for jurisdiction can not be conferred even by consent of the parties. A waiver is unavailing. State v. Bonney, 34 Me., 223; Milliken v.
No Maine case has been cited dealing precisely with the point here raised. By analogy, however, considerable light is thrown on the problem. Thus it has been held that an indictment not certified as “a true bill” is void. Webster’s Case, 5 Me., 432. The same result follows if an indictment is not found upon oath. State v. McAllister, 26 Me., 374. A warrant for arrest is void without a seal. State v. Drake, 36 Me., 366. See also State v. Smith, 99 Me., 164, 165,
In Pinkham v. Jennings, 123 Me., 343,
The exact point in issue has been passed on by many courts and the overwhelming weight of authority is that the failure to verify a complaint is fatal. There is nothing before the court.
In Hurley v. Commonwealth,
The case of Robertson v. State,
The case of Ex parte Gunnels,
In re McCarty,
In Ex parte Duncan, supra, the court holds that unless a petition for contempt is sworn to, the court has no jurisdiction.
In re Emery T. Wood,
Batchelder v. Moore,
State ex rel Conn,
The opinion in The People ex rel, Larocque v. Murphy, supra, states that, if there is no affidavit accompanying the complaint for contempt, the court is without jurisdiction. The coxirt said, pages 467 — 468: “When the misconduct is not committed in the presence of the Court, the statute requires due proof by affidavit of the facts charged. This is requisite to give the Court jurisdiction to act in the matter of a contempt alleged to have been committed out of its presence; and without this, a court has no authority to order a party to be arrested and brought before it, and to adjudge upon the matter of the alleged contempt. . . . The attachment was therefore issued without due proof by affidavit, and was, together with the commitment founded upon it, entirely without authority. It may be said that sufficient appeared in the defendant’s answers to the interrogatories, without resorting to the affidavits upon which the attachment was issued, to show that he had been guilty of a contempt. I doubt if his answers to the interrogatories make out a case of intentional disobedience to the order of the Court; or if they do, I doubt if that would help the matter. It is sufficient to say that he was arrested, brought before the Court, and compelled to answer interrogatories without any authority in law, and as the subsequent commitment necessarily relates back to, and includes, the facts and allegations which constituted the ground for his arrest in the first instance, the one can not be severed from the other. The proceeding, in its inception, was void for the want of jurisdiction. (Denning v. Corwin,
It would add nothing to discuss the large number of other cases which affirm this same doctrine. A few of them we merely cite. State v. Harvey,
Counsel for complainants argue that the court had jurisdiction because of the inherent power of courts at common law to punish for contempt. There is no doubt of this power but it must nevertheless be exercised in conformity with those rules which from time immemorial have been followed and are now embodied in our statute governing the procedure in such cases. Nor does it make any difference that in all the subsequent proceedings in this case the provisions of the statute may have been complied with. The oath called for here was not as counsel claim merely a procedural requirement which could be waived. It was essential to confer jurisdiction.
Counsel cite the case of Clark v. United States, 61 F. (2d), 695. This is not an authority that a statutory requirement governing the initiation of contempt proceedings can be waived. The opinion contains a general discussion of the sufficiency of the complaint and holds that, if it gives notice to the respondent of the charge, it is sufficient even though it may not have the technical accuracy of an indictment.
The case cites the well-known comment of Chief Justice Taft in Ex parte Grossman,
Counsel cite but three cases which seem to touch the point at issue. People ex rel Barnes,
In any event these cases are opposed to the overwhelming weight of authority which holds that the want of an oath on a complaint for contempt is a matter which goes to the jurisdiction, and not one of them so far as the opinions show involved a statute which as in Maine expressly provides for a complaint under oath.
That the complaints in the case before us were not sworn to was not brought to the attention of the justice who heard the case; and the defect was not commented on until the argument before the Law Court. That fact does not, however, alter the result. The error is not technical. It is fundamental; for no man, however reprehensible his conduct, may be deprived of his liberty except in accordance with the law. The Court was without jurisdiction to impose sentence on the respondents and the entry must be
Contempt proceedings dismissed for lack of verification.