At the close of the hearing the accused in three of the contempt proceedings were dismissed. The charges against two others were held to be sufficiently proved, but no order was entered regarding them because their respective cases were taken under advisement along with others submitted at the same time. None of the defendants prior to or in the progress of the trial challenged in any respect the sufficiency of the charges, or the form in which they were preferred, or the entitlement or prayer of the motions, or raised a query as to whether the proceedings were civil or criminal. The court did not therefore then make the critical examination of the moving papers which a detailed study of the submitted cases required. The result of such study was a request that counsel argue orally and on brief certain specific questions and any others by them deemed deserving. This was done. Considering the existing condition, the atmosphere may be clarified by an expression of views on practically every contention made.
The claim that the troubles considered in the contempt proceedings are attributable to the guards employed by the plaintiff is mere assertion and barren of support from the evidence. Some of the acts of violence were openly and others were impliedly admitted; the effort of the defense being to affix the responsibility for them on other than the accused. The troubles which have been aired in these contempt proceedings originated with strikers and strike sympathizers, and in every instance the aggressor was the one or the other. With one exception the accused are all union men. There have been some manifest exhibitions of lawlessness and disregard of the temporary injunction heretofore granted, which injunction ran against not merely the defendants named in the bill, but also against the members of the respective unions, their agents, confederates, aiders, and abettors. The assault on unoffending Kia, in which his nose was broken, was unprovoked, cowardly, and brutal. Of all the strikers and sympathizers that were present when it occurred, not one entered a protest or endeavored to bring the assailant to justice. When called upon to point him out, they protected him by standing mute. Some of them appeared here as witnesses to screen the guilty party. The court was impressed at the hearing with the appearance, first in one case and then in another, of certain overindustrious witnesses and always to prove an alibi' or its equivalent. The assaults which were the most reprehensible and vicious occurred in proximity to and in view of the strike headquarters. In so far as the present record discloses, no effort has been made by organized labor to bring any assailant of any of plaintiff’s employes to justice. The managers of the strike were not on trial, and none of them were offered as witnesses. They will not be condemned unheard, but a word of warning is timely.
In Bessette v. Conkey Co., 194 U. S. 324, 328, 24 Sup. Ct. 665, 666 (48 L. Ed. 997), Mr. Justice Brewer, speaking for the court, approved the following definition of civil and criminal contempts as given in Re Nevitt, 117 Fed. 448, 458, 54 C. C. A. 622, 632 (C. C. A. 8):
*339 “Proceedings for contempts are of two classes: Those prosecuted to preserve the power and vindicate the dignity of the courts and to punish for disobedience of their orders, and those instituted to preserve and enforce the rights of private parties to suits and to compel obedience to orders and decrees made to enforce the rights and administer the remedies to which the court has found them to be entitled. The former are criminal and punitive in their nature, and the government, the courts, and the people are interested in their prosecution. The latter are civil, remedial, and coercive in their nature, and the parties chiefly in interest in their conduct and prosecution are the individuals whose private rights and remedies they were instituted to protect or enforce. * * * A criminal contempt involves no element of personal injury. It is directed against the power and dignity of the court, and private parties have little, if any, interest in the proceedings for its punishment. But if the contempt consists in the refusal of a party or a person to do an act which the court has ordered him to do for the benefit or the advantage of a party to a suit or action' pending before it, and he is committed until he complies with the order, the commitment is in the nature of an execution to enforce the judgment of the court, and the party in 'whose favor that judgment was rendered is the real party in interest in the proceedings.”
Whether a particular act shall be classified as a civil or a criminal contempt is not always easy of determination, because it may partake of the characteristics of both. Contempts are neither wholly civil nor altogether criminal. Bessette v. Conkey Co., 194 U. S. 329, 24 Sup. Ct. 665, 48 L. Ed. 997; Gompers v. Bucks Stove & Range Co., 221 U. S. 441, 31 Sup. Ct. 492, 55 L. Ed. 797, 34 L. R. A. (N. S.) 874. In cases of civil contempt, the order made is interlocutory and remedial to indemnify the injured suitor or coercively to secure obedience to a mandate in his behalf, and the remedy of the accused is by appeal from the final decree rendered in the cause. Re Merchants' Stock Co., 223 U. S. 641, 32 Sup. Ct. 339, 56 L. Ed. 584; Doyle v. London Guarantors Co., 204 U. S. 599, 27 Sup. Ct. 313, 51 L. Ed. 641; Ex parte Heller, 214 U. S. 501, 502, 29 Sup. Ct. 698, 53 L. Ed. 1060; Clay v. Waters, 178 Fed. 385, 391, 392, 101 C. C. A. 645, 21 Ann. Cas. 897 (C. C. A. 8). But where the order made against the accused is punitive, it is a final judgment in its nature and reviewable on writ of error without awaiting such final decree. Re Merchants’ Stock Co., supra; Bessette v. Conkey Co., 194 U. S. 338, 24 Sup. Ct. 665, 48 L. Ed. 997; In re Christensen Engineering Co., 194 U. S. 458, 461, 24 Sup. Ct. 729, 48 L. Ed. 1072: Grant v. U. S., 227 U. S. 74, 76, 33 Sup. Ct. 190, 57 L. Ed. 423. The teaching of Re Christensen Engineering Co. is that, where a court is proceeding to vindicate its authority, the criminal element dominates. In the Bessette Case the Circuit Court granted an order temporarily restraining the defendants, their confederates, agents, and servants, from interfering with the operating of the plaintiff’s printing and publishing house. Thereafter complaint was made to the court that Bessette and others had knowingly violated the order, but it was not charged that in so doing he had conspired or acted in privity- with any other person. The manner of violation was, as in the present cases, fully described. Bessette, like the accused in this case, excepting Coyle, was not named as a party defendant in the original bill. He was found guilty of an act in resistance of the order of the court and was fined. It was held that he could not appeal from the order made against him and that his only
“The doctrine of the Bessette Case is that contempt proceedings are always to he regarded as criminal in respect to one not a party to the suit, since no coercive or remedial relief can be had against a stranger but only a judgment punishing him for a violation of the injunction committed with knowledge of its existence.”
See, also, Martin, Modern Law of Labor Unions, 314, 315; Garrigan v. U. S., 163 Fed. 16, 89 C. C. A. 494, 23 L. R. A. (N. S.) 1295 (C. C. A. 7); Re Reese, 107 Fed. 942, 47 C. C. A. 87 (C. C. A. 8); Oswald, Contempt of Court, 106, 107. The proceedings against Coyle •are of the same character as those against the other accused, for the reason that the plaintiff does not allege any financial loss on account of the acts .charged against him (or against any of' the accused, for that matter) or pray for compensation or remedial relief. In whatever aspect viewed, the present proceedings are all criminal and not civil, and the penalty imposed must be a fine or imprisonment. I do not mean by this to sustain the contention that the imposition of a fine or an award of compensation for the benefit of the complaining party may not be adjudged against a c.ontemnor at the same time that a jail sentence or a fine to be paid to the government is imposed on him.
“In saying that the criminal element, dominates the proceeding, the Supreme Court does not say that such domination excludes the remedial element troin being considered or prevents a judge in a case like the one before us from vindicating the court’s authority by punitive action and at the same time applying remedial relief.”
Contempt proceedings of the dual character above mentioned have usually arisen out of patent cases but are not restricted to such. Merchants’ Stock & Grain Co. Case, 201 Fed. 20, 120 C. C. A. 582. The plaintiff might perhaps have invoked against Coyle the course of procedure in the above-mentioned cases in which punishment and remedial relief were both accorded, but it could not have done so in any other instance because none of the other accused was a party defendant in the main cause.
Each of the contempt proceedings was instituted by a “motion for attachment against —-[the name of the accused being here inserted] for contempt of court.” In each instance, as in the Gompers Case, the caption is that of the main cause:
"Between Phillips Sheet & Tin Plate Company, a Corporation, Complainant, and Amalgamated Association of Iron, .Steel & Tin Workers et al., Defendants.”
Each proceeding purports to be “in equity.” Each motion bears the number of the main cause. In each the initial statement is:
“Now comes the complainant, Phillips Sheet & Tin Plate Company, and moves the court for a rule upon-[the name of the accused being here inserted! to show canse why lie should not be attached for contempt for violation of the injunction heretofore granted in this cause on the 15th day of August, 191”, for the reason,” etc.
The language, “the injunction heretofore granted in this cause on the 15th day of August, 1913,” is subsequently referred to five times as “the said order of injunction.” The prayer is:
“Wherefore the complainant prays for said rule to show cause as aforesaid” ; i. e., “to show cause why ho [the accused] should not be attached for contempt for violation of the injunction heretofore granted in this cause.”
The pleadings in the main cause and the evidence taken on its hearing for a temporary injunction were not mentioned in the motions or
There is no merit in the contention that contempt proceedings may not be instituted by motion (Gray v. Chicago, I. & N. R. Co., Fed. Cas. No. 5,713, 1 Woolw. 63; Worcester v. Truman, Fed. Cas. No. 18,043; Foster’s Fed. Prac. [4th Ed.] 1094; Aaron v. U. S., 155 Fed. 833, 84 C. C. A. 67 [C. C. A. 8]), or that the stating portion of the respective motions does not set forth facts sufficient to constitute a contemptuous violation of the court’s order.
The several proceedings, each of which is criminal in character, were each instituted in the main cause. In view of the teachings of the Gompers Case, it would have been proper and, according to some decisions, was necessary to entitle the motions “United States v. Coyle,” or “Monias,” etc., or “In re Coyle,” or “Monias,” etc., as the nanne of the accused might be. The’.entitling of the charging instrument, it was said (221 U. S. 446, 31 Sup. Ct. 492, 55 L. Ed. 797, 34 L. R. A. [N. S.] 874), is not a mere matter of form, for the reason that the accused, by a mere inspection of the papers in the proceeding, ought to be able to see whether it is instituted for private litigation or for public prosecution, whether it seeks
“Under tlie principles announced in that Itlie Gompers] case, it must, oí course, appear in a cause in equity that, before imposing a sentence for criminal contempt, the court distinctly gave the defendant his day in court and allowed him a full and fair hearing upon a criminal charge. In that case the Supreme Court recognizes that the practice with reference to contempt proceedings has been unsettled. * * We do not find that the Supreme Court has ever said that any particular form of proceeding is required, providing the defendant is left in no doubt as to what charge is made against him.”
"Whether the proceedings he civil or criminal, there must he an allega ton that in contempt of court the defendant has disobeyed the order and a prayer that he be attached and punished therefor.”
So important did the court deem the form of the prayer that it subsequently repeated the above statement (221 U. S. 448, 31 Sup. Ct. 492, 55 L. Ed. 797, 34 L. R. A. [N. S.] 874) and still later said (221 U. S. 449, 31 Sup. Ct. 492, 55 L. Ed. 797, 34 L. R. A. [N. S.] 874) that, if the plaintiff 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. As to the proper form of prayer, see, also, Loveland, Bank. (4th Ed.) 1247. In Rapalje on Contempt, § 98, p. 131, it is said that:
“If the breach has been committed by a person who was not named in the writ or order or notice, the motion must be that he may be committed for contempt in knowingly assisting in the breach.”
The import of other language employed by him in that section is that a motion that the defendant stand committed for contempt should be made in every case, whether the accused is a party defendant in the main cause or a stranger to it. A contempt proceeding is sui gen-eris (Bessette v. Conkey Co.), and the Supreme Court has specified the form, or at least the essential substance of the form, of prayer for this particular kind of a proceeding, whether punishment or remedial relief, or both, be sought, and has ruled that punishment cannot be inflicted unless there is a prayer for it. See, also, Re Kahn, 204 Fed. 581 (C. C. A. 2); Anargyros v. Anargyros (C. C.) 191 Fed. 208. None of the motions filed by the plaintiff prays for the punishment of the accused or for other than his attachment, nor is this fatal defect remedied by the recital in the order granted on the filing of the motion and served upon each of the defendants that he show cause why he should not be attached “and committed for violation of the injunction heretofore ordered and issued in this cause.” The language quoted is that of the pleader, escaped the attention of the court when the order was approved, and is in excess of the averments and prayer of the motion. As the proceedings are necessarily criminal, the accused must be presumed to have known the law and were each chargeable with knowledge that, if put on trial oil a charge properly framed and found guilty, punishment by fine or imprisonment would follow; but, as no relief was sought save tlxeir attachment, they were not apprised that their punishment was the object in view. The only purpose an attachment could serve would be to bring the parties into court. State v. Matthews, 37 N. H. 450; Jackson v. Smith, 5 Johns. (N. Y.) 115, 117; Rapalje on Contempt, § 100, p. 134. As they
The power to punish for contempt of court is to be used sparingly and with great caution and deliberation. Gompers Case; Oswald, Contempt of Court, 17. The purpose in invoking the exercise of such power is the enforcement of law and of lawful orders and the punishment of acts of disobedience. A court thus called upon to enforce the law may itself keep well within its limits. It is not a party to the proceeding. In punishing for contempt, the judge acts impersonally and has no interest or concern other than that the law should be obeyed and enforced. U. S. v. Shipp, 203 U. S. 563, 574, 27 Sup. Ct. 165, 51 L. Ed. 319, 8 Ann. Cas. 265; Oswald, Contempt of Court, 262a. To justify punishment, whether of a remedial or punitive character, for a violation of the court’s order or for aiding, and assisting in its violation, the charge against the accused and the course of procedure must meet legal requirements, and the proof must conform to the settled rules of evidence. This is the rule in both England and America. Oswald in his work (page 211) says:
“Applications affecting the liberty of the subject are matters strietissimi juris; and although an irregularity in the course of proceedings for attachment or committal does not render the proceedings void, and the court has power to condone thé irregularity, yet slips in the practice, where the.liberty of the subject is concerned, are seldom allowed by the court to be got rid of under this powei;, and in many cases delay and expense have been incurred, and even justice defeated, by slips and irregularity in the proceedings. A direct noncompliance with the rules of practice as to committal and attach-fnent ought not to be condoned by the court. * * * But in a proper case, and for the purpose of justice, and where valid reasons are given for it, an irregularity may be' condoned or insistence upon it may not be permitted.”
When all legal requirements are met, punishment should be sure, fitting, and as swift as due deliberation admits, for, as said in the Gompers Case, 221 U. S. 450, 31 Sup. Ct. 501, 55 L. Ed. 797, 34 L. R. A. (N. S.) 874:
“The power of courts to punish for contempt is a necessary and integral part of the independency of the judiciary and is absolutely essential to the performance of the duty imposed on them by law. Without it they are mere boards of arbitration whose judgments and decrees would be only advisory. If a party (the accused) 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 but a mere mockery. * * * Without authority to act promptly and independently, the courts could not administer public justice or enforce the rights of private litigants.”
The several proceedings are dismissed, but without prejudice to the institution of new proceedings, if that be deemed advisable, or to the court’s right to punish by proper proceedings contempts, if any, committed against it.