UNITED STATES ex rel. WEST VIRGINIA-PITTSBURGH COAL CO. v. BITTNER et al. (two cases)
Nos. 2431, 2432
Circuit Court of Appeals, Fourth Circuit
January 23, 1926
11 F.(2d) 93
Before WADDILL, ROSE, and PARKER, Circuit Judges.
The controversy in the case is as to whether that conclusion was right. We have no question that it was. We do not find it necessary to follow the parties into a meticulous examination of various words and phrases in the lease further than to say that in construing the instrument as a whole, there is nothing whatever in it to indicate that the lessor for one moment thought of making its right to the 10 per cent. royalty depend upon the relationship which might, at any time in the half century or more during which the lease was to run, happen to exist between the possessor of the term of years and the person or corporation who should ultimately use the coal mined on its property and shipped from it. It is stipulated that at the time the lease was made, all coal produced in the field of which the leased property formed a part, was, and had always theretofore been, disposed of by sale. Such being the situation of the parties at the time the contract was entered into, no court would be justified in holding that the lessee, by the simple process of using the coal, could destroy the right of the lessor to its 10 per cent. royalty. If the contention of the defendant was sound, the rights of the plaintiff might easily depend upon the form which its lessee might choose to give to transactions which in their substance would differ little if at all. For example, it might suit a lessee to ship the coal to a subsidiary corporation, all of whose stock it owned. For cost accounting or other bookkeeping purposes, the transaction might take the form of a sale of the coal by the lessee to its subsidiary. In that event, the lessor would be entitled to its 10 per cent royalty. The next year, it might please the lessee to extinguish the existence of the dependent corporation and to operate the latter‘s plants directly, and in that case the lessor would, upon the theory of the defendant, have no claim to royalty. It is too great a strain upon credulity to suppose that any lessor intended that its rights should be dependent upon circumstances over which it could exercise no control and in which it was not in the slightest degree interested. Nothing but the plainest and most unambiguous language could support such a conclusion. It was contemplated by the lessor that the lessee in the future might choose upon the premises, to turn some, or all, of the coal mined into coke and the lease apparently sought to direct what should happen in such contingency. Both parties are agreed that what is said on this subject is meaningless, either because the wrong words were used or more probably because something was inadvertently omitted. No inference contrary to what has already been said can be based on the language actually employed.
[2] The parties stipulated the number of tons used by the defendant and what was its market value, “taking into consideration the purpose for which the defendant made use of” it. The words in quotation marks formed part of the decree of the learned court below, describing the principles upon which the accounting before the master should be had. Defendant now complains of them, but it did not offer to prove what the market value without limitation was, and there is nothing in the record to suggest the restriction to which it now objects did it any harm.
It follows that the decree below was right, and must be affirmed.
- Contempt 66(1 1/2)—Jurisdiction of court to review contempt proceedings, depending on whether they are civil or criminal, can be disposed of by motion to dismiss.
Whether contempt proceedings are civil or criminal as affects jurisdiction of court to review decision for defendants can be appropriately disposed of by motion to dismiss writ of error.
- Contempt 40—Civil contempt proceedings are between original parties, whereas criminal contempt proceedings are between public and defendants and not part of original cause.
Civil contempt proceedings arise between original parties and are treated as part of main cause, while criminal contempt proceedings are between public and defendants and are not part of original cause.
- Contempt 40, 66(4)—Proceedings held criminal contempt proceedings wherein no appeal lay from decision exonerating defendants.
Contempt proceedings, instituted in name of United States on the relation, of a coal company, entitled “criminal contempt proceedings,” and which petitioners prayed should be entered as a charge of criminal contempt on criminal
docket, held criminal contempt proceedings wherein no appeal lay from decision exonerating defendants. - Contempt 66(4)—Rule denying appeal from judgment for defendants in criminal cases applies in criminal contempt cases, notwithstanding statute (Criminal Appeals Act, March 2, 1907 [Comp. St. § 1704]).
Rule denying appeal from judgment for defendants in criminal case applies to criminal contempts, nor does Criminal Appeals Act
March 2, 1907 (Comp. St. § 1704 ), afford authority for appeal in such cases.
In Error to the District Court of the United States for the Northern District of West Virginia, at Wheeling; William E. Baker, Judge.
Two criminal contempt proceedings by the United States, on the relation of the West Virginia-Pittsburgh Coal Company, against Van A. Bittner and others. To review an order exonerating defendants, relator brings error. On motions to dismiss. Writs of error dismissed.
J. M. Ritz and John A. Howard, both of Wheeling, W. Va. (Wm. C. Howard, of Wheeling, W. Va., on the brief), for plaintiff in error.
Henry Warrum, of Indianapolis, Ind. (T. C. Townsend, of Charleston, W. Va., John D. Gardner, of Steubenville, Ohio, and W. J. Walker, of St. Clairsville, Ohio, on the brief), for defendants in error.
WADDILL, Circuit Judge. These two proceedings, involving questions of contempt of court, respectively set forth in the petitions in each cause, will be considered together, as they depend upon substantially the same facts, and were so heard in the District Court. The proceedings were instituted on the 21st day of April, 1925, the first named No. 2431, entitled “United States of America ex rel. West Virginia-Pittsburgh Coal Company, a Corporation Organized under and by Virtue of the Laws of West Virginia, Having Its Principal Office at Wellsburg in the Northern District of said State, Plaintiff, v. John L. Lewis, Philip Murray, Van A. Bittner, Lee Hall, William Roy, G. W. Savage, Frank Ledvinka, John Cinque, W. T. Roberts, Joseph Angelo, Pearl Dooley, Harvey Lafollette, Tony Corrodi, Robert Corrodi, Angelo Nude, William Vernon, and Pete Coffaro, Defendants, Criminal Contempt Proceeding, No. 8017,” and the second, No. 2432, entitled “United States of America ex rel. West Virginia-Pittsburgh Coal Company, a Corporation Organized under and by Virtue of the Laws of West Virginia, Having Its Principal Office at Wellsburg, in the Northern District of said State, Plaintiff, v. John L. Lewis, Philip Murray, Van A. Bittner, Lee Hall, William Roy, G. W. Savage, Frank Ledvinka, John Cinque, W. T. Roberts, Joseph Angelo, W. T. Martin, Andy Swartz, David Stephens, Lou Vandine, and Homer Colley, Defendants, Criminal Contempt Proceeding, No. 8019.”
The petitions each set out that the several defendants therein were, and had been, guilty of contempt of court in violating, with many persons and corporations, and in many ways, elaborately set forth in said petitions, the provisions of an order of injunction entered on July 10, 1923, by the United States District Court for the Northern District of West Virginia, in a cause pending in said court entitled West Virginia-Pittsburgh Coal Company, a Corporation, et cetera, v. Jno. P. White and Others. Upon the presentation of said petitions, on the 21st and 24th of April, 1925, respectively, the District Court duly entered its decrees directing the issue of attachments against each of the defendants requiring them to show cause on the 26th of April, 1925, why they should not be adjudged guilty of contempt of court in disobeying its lawful decree as complained of. The defendants promptly replied, denied the violation of the orders in question, and averred that they had not been guilty of contempt of court as charged.
The cause was heard upon petitions, answers, replications, and exhibits filed, and the appearance of sundry defendants in person as well as by counsel, and the court, on the 2d of June, 1925, decreed as follows:
“United States of America ex rel. West Virginia-Pittsburgh Coal Co., a Corporation, etc., Plaintiff, v. John L. Lewis et al., Defendants. Criminal Contempt Proceeding, No. 8017. * * * The court is of the opinion, for the reasons given in a written opinion filed on the 8th day of May, 1925, and here made a part of the record, and also for the reasons given in the first paragraph of a memorandum of opinion filed May 16, 1925, which first paragraph is also hereby made a part of the record, and also for the reasons given in another memorandum of opinion this day handed down, which is also made a part of the record, that the said responses of the said defendants have sufficiently purged them of the contempt charged in the relator‘s petition, it is there-
fore further adjudged, ordered and decreed that the said petition be dismissed and that the said defendants be discharged, to all of which the relator objects and excepts. “It is further considered by the court that the relator, the West Virginia-Pittsburgh Coal Company, be required to pay the costs of the prosecution of said petition for contempt, but that the defendants do not recover of the said West Virginia-Pittsburgh Coal Company their costs in said proceeding.”
From the entry of this order writs of error were sued out, and are now under review herein.
[1] The first question requiring our consideration is the motion made by the defendants in each case to dismiss the writs of error because, the decision of the lower court having resulted in the acquittal of the defendants, such action could not be made the subject of review by this court. The determination of this question depends upon whether the contempt proceedings are civil or criminal. If the latter, then defendants’ motion to dismiss should be sustained, as the same brings into question the jurisdiction of the court, and can appropriately be disposed of by motion to dismiss.
[2] Just when a contempt proceeding may be termed a criminal contempt, or a civil contempt, is not always easily determined, as the same decree sometimes may possess the characteristics of both. In re Merchants’ Stock & Grain Co., 223 U.S. 639, 32 S. Ct. 339, 56 L. Ed. 584 (1912); Union Tool Co. v. Wilson, 259 U.S. 107-110, 42 S. Ct. 427, 66 L. Ed. 848 (1922). Proceedings for civil contempt arise between the original parties and are instituted and treated as a part of the main cause, while proceedings at law for criminal contempt are between the public and the defendant, and are not a part of the original cause. Gompers v. Buck‘s Stove & Range Co., 221 U.S. 418, 441, 31 S. Ct. 492, 55 L. Ed. 797, 34 L.R.A. (N.S.) 874 (1911).
[3] In these cases the writs of error were sued out on a judgment in a criminal contempt proceeding. It was so characterized by the petitioners in their original petition, namely, “United States of America ex rel. West Virginia-Pittsburgh Coal Company, a Corporation Organized under and by Virtue of the Laws of West Virginia, v. John L. Lewis et al.,” entitled “Criminal Contempt Proceeding, No. 8017,” and a like designation of the title in the second cause, “Criminal Contempt Proceeding, No. 8019,” and the prayers of the petitions, respectively were: “Your petitioner prays that this petition be entered as a charge of criminal contempt on the criminal docket of this court, and be proceeded in as such criminal contempt proceeding according to the laws of the United States applicable to the class of criminal contempts to which the kind of contempt charged in this petition properly belongs.” While this prayer of the petitions would seem to be determinative of the character of the contempt, the court, in awarding the attachments prayed for, in terms directed the defendants “to answer to the United States of America for certain trespasses and contempts brought against them in our court before us, and have then and there this writ,” etc., and the court, in its opinion of the 8th of May, 1925, as well as in its opinion and final order in the case of the 2d of June, 1925, adjudging the defendants to be purged of contempt and dismissing the same at the cost of the West Virginia-Pittsburgh Coal Company, in terms found the same to be a criminal contempt.
[4] Treating the proceedings as for criminal contempts, there is no jurisdiction in this court to review the action and conclusion of the lower court exonerating the defendants from such contempts and dismissing the proceedings, for the reason that no appeal lies from the judgment in favor of the defendants in a criminal case, and this applies to criminal contempts as well as to other criminal cases. United States v. Sanges, 144 U.S. 310, 312, 12 S. Ct. 609, 36 L. Ed. 445 (1892); Craig v. McCulloch, 20 W. Va. 148; Commonwealth v. Richardson, 136 Ky. 699, 125 S. W. 147; Rapalge on Contempts, § 146. It may be said in this connection that the Criminal Appeals Act of
The motions to dismiss will be granted, and the writ of error sued out in each case dismissed at the cost of the plaintiff in error, the West Virginia-Pittsburgh Coal Company, a corporation.
Writs of error dismissed.
ROSE, Circuit Judge (concurring). I agree that while the defendant to a charge of criminal contempt may sue out a writ of error, no one else may. In the instant case, it may be worth while also to point out that from the standpoint of the law, no one other than the government is aggrieved by the acquittal of one accused of such contempt, and therefore it alone has any right to complain of such action. The United States has taken no part in these proceedings.