201 F. 20 | 8th Cir. | 1912
Lead Opinion
This case was heretofore submitted and decided by this court. Merchants’ Stock & Grain Co. et al. v. Board of Trade et al., 187 Fed. 398, 109 C. C. A. 230. The Supreme Court of the United States having held in Re Merchants’ Stock & Grain Co., 223 U..S. 639, 32 Sup. Ct. 339, 56 L. Ed. 584, that the contempt here in question was criminal as distinguished from civil, the case was. ordered reargued, and has been again submitted.
The board of- trade of the city of Chicago brought suit against the Merchants’ Stock & Grain Company, Francis J. Miner, Patrick A. .Stephens,, and numerous other defendants to enjoin them temporarily and perpetually from receiving, using; selling, or distributing, directly or indirectly, the quotations of complainant or any of them, and from having and obtaining or permitting any telegraph -or other wire running into or through its, his, or their offices over which said quotations are passing until- they shall have lawfully acquired the right from complainant. or some telegraph company authorized by complainant to-distribute quotations. ■ November 3, 1909, a preliminary injunction was-ordered issued upon complainant giving bond in the sum of $5,000.
■ The specifications of error are substantially:
First to third: That the trial court erred in appointing Robert M. Fulton examiner, and directing the testimony to be taken before him, and requiring the defendants to appear before the examiner and submit to the taking of testimony,, and in refusing to vacate said order on motion ■ of defendants, and in refusing the defendants a hearing upon the case on evidence adduced in open court.
Fourth to ninth and fourteenth to sixteenth assail the admission'of certain evidence.
¡i Tenth to the twelfth assail the findings of defendants’ guilt. ^•Seventeenth alleges, that there was no evidence of guilt.
■ Thirteenth is .that the court erred in apportioning the fine between complainant and the government.
,. Eighteenth asserts that there is no sufficient finding of facts' made by.the judgment.
In Bessette v. W. B. Conkey Co., 194 U. S. 324, 24 Sup. Ct. 665, 48 L. Ed. 997, Mr. Justice Brewer said:
“It may not be always easy to classify a particular act as belonging to either one of these two classes. It may partake of the characteristics of both. A significant and generally determinative feature is that the act is by one party to a suit in disobedience of a special order made in behalf of the other. Yet sometimes the disobedience may be of such a character, and in such a manner as to indicate a contempt of the court rather than a disregard of the rights of the adverse party.”
' No reason can be assigned why disobedience may- not at the same time be of such a character as to indicate a contempt of the court and of all authority and a total disregard of the rights of the adverse party.
The first points made by the plaintiffs in error as before stated are with reference to the appointment of Robert M. Fulton as special examiner to take the testimony, and the refusal to set this order aside. It is contended that, under the authorities, this was a criminal contempt case, and that by its reference to a special examiner they were deprived of the privilege of being confronted with the witnesses against them as provided in the sixth amendment to the federal Constitution, and the question is, Does that provision apply to criminal contempt cases? Closely akin to this question is the one as to whether a criminal contempt case is within the provisions of the fifth amendment to the Constitution.
These two amendments read as follows:
“Art. 5. No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a grand jury, except in cases arising in the land or naval forces, or in the militia, when in actual service in time of war or public danger; nor shall any person be subject fox-*25 the same offense to be twice put in jeopardy of life or limb; nor shall be compelled in any criminal case to be a witness against bimself; nor be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation.”
“Art. 6. In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the state and district wherein the crime shall have been committed, which district shall have been previously ascertained by law, and to be informed of the nature and cause of the accusation; to be confronted with the witnesses against him; to have compulsory process for obtaining witnesses in his favor, and to have the assistance of counsel for his defense.”
Conceding that the term “criminal contempt” is properly applied to a contempt punished by a punitive as distinguished from a coercive fine arising in an equity case, it does not follow that it is a criminal case within the meaning of the fifth amendment or a criminal prosecution within the meaning of 'the sixth.
Before entering on the discussion of this question, it seems wise to consider certain cases which involve the question of jurisdiction, because the turning question in them necessarily involves the question of whether contempts are criminal or otherwise, and thus in a measure they bear upon-the question as to the rights of a defendant in a criminal contempt case. Anterior to the creation of the Circuit Courts of Appeals, the Supreme Court held it had no'jurisdiction by appeal, writ of error, or habeas corpus in criminal contempt cases because of their criminal character. Ex parte Kearney, 7 Wheat. 38, 5 L. Ed. 391; New Orleans v. Steamship Co., 20 Wall. 387, 22 L. Ed. 354; Hayes v. Fischer, 102 U. S. 121, 26 L. Ed. 95; Ex parte Fisk, 113 U. S. 713, 718, 5 Sup. Ct. 724, 28 L. Ed. 1117; In re Debs, 158 U. S. 564, 15 Sup. Ct. 900, 39 L. Ed. 1092; O’Neal v. United States, 190 U. S. 36, 23 Sup. Ct. 776, 47 L. Ed. 945. It held, however, that it had jurisdiction of a writ of error tó a state court of last resort in a contempt case (Tinsley v. Anderson, 171 U. S. 101, 18 Sup. Ct. 805, 43 L. Ed. 91), and it entertained jurisdiction in Counselman v. Hitchcock, 142 U. S. 547, 12 Sup. Ct. 195, 35 L. Ed. 1110, of an appeal from the action of the Circuit Court in refusing a writ of habeas corpus in a criminal contempt case. It also held that it had jurisdiction by mandamus to direct the reinstatement of an attorney who had in a contempt proceeding been disbarred without notice and without ample opportunity to be heard. Ex parte Robinson, 19 Wall. 505, 22 L. Ed. 205. It held it had jurisdiction to review a civil contempt case arising 'in an equity case on appeal of the principal controversy after final decree. Worden v. Searls, 121 U. S. 14, 7 Sup. Ct. 814, 30 L. Ed. 853; Hayes v. Fischer, 102 U. S. 121, 26 L. Ed. 95. And in Re Chetwood, 165 U. S. 443,17 Sup. Ct. 385, 41 L. Ed. 782, it held that whenever the circumstances imperatively demand that form of interposition the writ of certiorari may be allowed as at common law to correct excess of jurisdiction and in furtherance of justice, and the writ was -allowed in that case to bring up the record in a contempt case.
In Durant v. Washington County, 1 Woolw. 377, 8 Fed. Cas. 128,
“We are satisfied, however, upon, consideration, that a prosecution for contempt of court is a criminal proceeding, in which the government is interested as plaintiff; and that, whenever it becomes necessary for the government’s attorney to appear to vindicate its authority as represented in the courts, it is his duty to do so.”
When the act passed creating the Circuit Courts of Appeals, the Supreme Court held that such courts had jurisdiction of writs of error in criminal contempt cases. Bessette v. W. B. Conkey Co., 194 U. S. 324, 24 Sup. Ct. 665, 48 L. Ed. 997. But it later held that the Circuit Courts of Appeals did not have jurisdiction on appeal if the contempt adjudged was interlocutory until after the final decree and then upon appeal therefrom. Doyle v. London Guarantee Co., 204 U. S. 599, 27 Sup. Ct. 313, 51 L. Ed. 641. It was held that, if the proceedings be for a civil contempt, an order made is in effect an interlocutory order, and can be reviewed only in equity cases on appeal from the final order. In the Matter of Christensen Engineering Co., 194 U. S. 458, 24 Sup. Ct. 729, 48 L. Ed. 1072; Heller v. National Waistband Co., 168 Fed. 249, 93 C. C. A. 551; Id., 168 Fed. 1020, 93 C. C. A. 670; Ex parte Isaac Heller, 214 U. S. 501, 29 Sup. Ct. 698, 53 L. Ed. 1060. And, where the adjudication of civil contempt follows the decree in the main case, still the remedy is by appeal, rather than by a writ of error. Wilson v. Calculagraph Co., 153 Fed. 961, 83 C. C. A. 77. In International Paper Co. v. Chaloux, 165 Fed. 436, 91 C. C. A. 465, in the Circuit Court of Appeals of the First Circuit, it was held that appeal would not lie in contempt proceedings in a suit at law against a party to the suit, nor would a writ of error lie because the judgment in contempt was not regarded as the final judgment in the case.
These cases have been reviewed because they are the principal ones in which the question has been discussed as to whether contempt cases were civil or criminal but the decisions have been with reference to what is here a collateral question, namely, the jurisdiction of the court. They are entitled to their just weight, bearing in mind that the questions involved were not whether the cases were criminal cases or criminal prosecutions within the meaning of the amendments to the Constitution.
’First. That criminal contempts are tried summarily, and riot in the regular course or way.
“Without deciding what may he the rule in civil contempts, 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.”
This is followed in the opinion by the citation of numerous authorities, but they all go to the presumption of innocence and .the quantity of proof required for conviction and no one of the cases
In United States v. Anonymous (C. C.) 21 Fed. 761, it is said:
“If the accused appears he is heard in any way that suits the convenience . of the court, hy an examination ore tenus, upon affidavits, or by propounding-interrogatories. If he deny the contempt, the court, either for itself or by reference to a master, ascertains the facts upon the proof, either party examining witnesses hy affidavit or otherwise.”
Phis language was quoted with approval in Re Fellerman (D. C.) 149 Fed. 244.
In Counselman v. Hitchcock, 142 U. S. 547, 563, 12 Sup. Ct. 195, 198 (35 L. Ed. 1110), it was said in reference to the sixth amendment that:
“This provision distinctly means a criminal prosecution against a person who is accused and who is to be tried by a petit jury. A criminal prosecution under article 6 of the amendments is much narrower than a ‘criminal case’ under article 5 of the amendments,”
In United States v. Zucker, 161 U. S. 475, 16 Sup. Ct. 641, 40 L. Ed. 777, it was held that in a suit against importers to recover
In United States v. Shipp, 203 U. S. 563, 27 Sup. Ct. 165, 51 L. Ed. 319, 8 Ann. Cas. 265, and the same against the same in 214 U. S. 386, 29 Sup. Ct. 637, 53 L. Ed. 1041, the United States Supreme Court imprisoned for varying terms six persons for contempt in connection with the lynching of the negro Johnson of Chattanooga upon testimony taken by a commissioner at Chattanooga. This was not objected to by the defendants, but that was a criminal contempt, and the contempt would in fact have been a criminal offense under the law of Tennessee. The court stood five to three, and yet it was never even suggested by the majority or minority that the evidence should have been taken in open court. It has been the practice to thus take evidence by commissioner in contempt cases in England for 200 years. 9 Cyc. 47. And the same practice has prevailed generally in .this country. Rapalje on Contempt, 124.
It is not necessary to determine the question, but, if it were, grave doubt exists as to whether or not in a trial before the examiner in which the defendants appear and cross-examine the witnesses they are not confronted with the witnesses against them. State v. McO’Blenis, 24 Mo. 402, 69 Am. Dec. 435.
We conclude that the following additional differences exist between criminal cases, criminal prosecutions and criminal contempts:
Seventh. That the defendant is not entitled to be confronted with the witnesses against him in open court and, probably,
Eighth. That the defendant in a contempt case may be examined as a witness so long as he is not required to criminate himself in a sense other than to convict him of contempt.
But, where the contempt has been both of the court and of the rights of the adverse party, it has been quite frequently the custom to divide the fine between the government and the injured party. Cary Manufacturing Co. v. Acme Flexible Clasp Co., 187 U. S. 427, 23 Sup. Ct. 211, 47 L. Ed. 244; s. c., 108 Fed. 873, 48 C. C. A. 118; Matter of Christensen Engineering Co., 194 U. S. 458, 24 Sup. Ct. 729, 48 L. Ed. 1072; Christensen Engineering Co. v. Westinghouse Air Brake Co., 135 Fed. 774,-68 C. C. A. 476; Chicago Directory Co. v. United States Directory Co. (C. C.) 123 Fed. 194; Continental Gin Co. et al. v. Murray Co., 162 Fed. 873, 89 C. C. A. 563; Sabin v. Fogarty (C. C.) 70 Fed. 482. And in Hendryx v. Fitzpatrick (C. C.) 19 Fed. 810, Lowell, Circuit Judge, said:
- “The process of contempt has two distinct functions — one, criminal to punish disobedience, the other, civil and remedial, to enforce a decree of the court and indemnify private persons. In patent causes it has been usual to •combine the two and to order punishment if it is thought proper, or indemnity to the plaintiff, if that is all that justice requires, or both.”
McCrary, Circuit Judge, seems to have been of the opinion that the fine must go to the government. United States v. Atchison, Topeka & Santa Fe Railway Co. (C. C.) 16 Fed. 853, and he also held in Re Ellerbe (C. C.) 13 Fed. 530, that a criminal contempt is a criminal offense within the meaning of section 1014, United States Revised Statutes (U. S. Comp. St. 1901, p. 716).
In the Matter of Christensen, 194 U. S. 458, 24 Sup. Ct. 729, 48 L. Ed. 1072, where half of the fine was assigned to the government and half to the injured party, the part going to the government was punitory and criminal, and so dominated the case that a writ of error would lie, and this holding applies to this case. In re Merchants’ Stock & Grain Co., 223 U. S. 639, 32 Sup. Ct. 339, 56 L. Ed. 584. But it has not been determined by the Supreme Court whether the entire contempt case can be reviewed in error, or only that portion in reference to the punitory or criminal punishment imposed. It has heen held by the Circuit Court of Appeals of the Second Circuit (Christensen Engineering Co. v. Westinghouse Air Brake Co., 135 Fed. 774, 68 C. C. A. 476) that, under such circumstances, the whole contempt case will be reviewed on writ of error.
, As the main case is not yet disposed of in the Circuit Court,or its
The fines here have been imposed, and what concern have the plaintiffs in error with the order as to the disposition of the money after being paid ? The government has not sued out a writ of error.
We therefore hold:
First. That the imposition of sentence was legal in this respect.
Second. That, if illegal, it was without prejudice to the plaintiffs in error.
No error of law appearing, it is ordered that the case be affirmed.
Concurrence Opinion
I concur in the foregoing opinion, excepting that part in which it is said that probably a defendant in a charge of criminal contempt may be compelled to testify and incriminate himself. The question is not involved in the case before us and a different view was expressed, at least arguendo, in Gompers v. Bucks Stove & Range Co., 221 U. S. 418, 444, 31 Sup. Ct. 492, 55 L. Ed. 797, 34 L. R. A. (N. S.) 874.
