BESSETTE v. W. B. CONKEY CO.(1904)
This case is before us on questions certified by the circuit court of appeals for the seventh circuit. The facts as stated are that on August 24, 1901, the W. B. Conkey Company filed [194 U.S. 324, 325] its bill of complaint in the circuit court of the United States for the district of Indiana against several parties, praying an injunction, provisional and perpetual, restraining the defendants, their confederates, agents, and servants, from interfering with the operation of its printing and publishing house. A temporary restraining order was issued, and on December 3, 1901, a perpetual injunction was ordered against all the defendants appearing or served with process. On September 13, 1901, the complainant filed its verified petition, informing the court that various persons, among them Edward E. Bessette (who was not named as a party defendant in the bill), with knowledge of the restraining order, had violated it, describing fully the manner of the violation. Upon the filing of that petition Bessette was ordered to appear before the court and show cause why he should not be punished for contempt in violating the restraining order. He appeared and filed his answer to the charges, and upon a hearing the court found him guilty of contempt, and imposed a fine of $250. From this order or judgment Bessette prayed an appeal to the circuit court of appeals, which was allowed, and the record filed in that court. Upon these facts the circuit court of appeals certified the following questions:
Mr. William Velpeau Rooker for Bessette.
Messrs. Jacob Newman, Salmon O. Levinson, and Benjamin V. Becker for W. B. Conkey Co.
Mr. Justice Brewer delivered the opinion of the court:
The primary question is whether the circuit court of appeals can review an order of a district or circuit court in contempt proceedings. A secondary question is, How, if there be a right of review, can it be exercised?
A contempt proceeding is sui generis. It is criminal in its nature, in that the party is charged with doing something forbidden, and, if found guilty, is punished. Yet it may be resorted to in civil as well as criminal actions, and also independently of any civil or criminal action.
The power to punish for contempt is inherent in all courts. It is true Congress, by statute (1 Stat. at L. 83, chap. 20), declared that the courts of the United States 'shall have power . . . to punish by fine or imprisonment, at the discretion of said courts, all contempts of authority in any cause or hearing before the same.' And this general power was limited by the act of March 2, 1831 (4 Stat. at L. 487, chap. 99, Rev. Stat. 725, U. S. Comp. Stat. 1901, p. 583), the limitation being--
But in respect to this it was held in Ex parte Robinson, 19 Wall. 505, 510, 22 L. ed. 205, 208:
The purpose of contempt proceedings is to uphold the power of the court, and also to secure to suitors therein the rights by it awarded. As said in Re Chiles, 22 Wall. 157, 168, sub nom. Texas v. White, 22 L. ed. 819, 823:
In Re Nevitt, 54 C. C. A. 622-632, 117 Fed. 448, 458, Judge Sanborn, of the court of appeals for the eighth circuit, [194 U.S. 324, 328] considered the nature of contempt proceedings at some length. We quote the following from his opinion:
Doubtless the distinction referred to in this quotation is the [194 U.S. 324, 329] cause of the difference in the rulings of various state courts as to the right of review. Manifestly, if one inside of a court room disturds the order of proceedings, or is guilty of personal misconduct in the presence of the court, such action may properly be regarded as a contempt of court; yet it is not misconduct in which any individual suitor is specially interested. It is more like an ordinary crime which affects the public at large, and the criminal nature of the act is the dominant feature. On the other hand, if, in the progress of a suit, a party is ordered by the court to abstain from some action which is injurious to the rights of the adverse party, and he disobeys that order, he may also be guilty of contempt, but the personal injury to the party in whose favor the court has made the order gives a remedial character to the contempt proceeding. The punishment is to secure to the adverse party the right which the court has awarded to him. He is the one primarily interested, and if it should turn out, on appeal from the final decree in the case, that the original order was erroneous, there would, in most cases, be great propriety in setting aside the punishment which was imposed for disobeying an order to which the adverse party was not entitled.
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.
In the case at bar the controversy between the parties to the suit was settled by final decree, and from that decree, so far as appears, no appeal was taken. An appeal from it would not have brought up the proceeding against the petitioner, for he was not a party to the suit. Yet, being no party to the suit he was found guilty of an act in resistance of the order [194 U.S. 324, 330] of the court. His case, therefore, comes more fully within the punitive than the remedial class. It should be regarded like misconduct in a court room or disobedience of a subpoena, as among those acts primarily directed against the power of the court, and in that view of the case we pass to a consideration of the questions presented.
In Re Debs, 158 U.S. 564 , 39 L. ed. 1092, 15 Sup. Ct. Rep. 900, a case of habeas corpus brought to review an order of the circuit court imprisoning for contempt, we said (p. 596, L. ed. p. 1106, Sup. Ct. Rep. p. 911):
And again, in summing up our conclusions (p. 599, L. ed. p. 1108, Sup. Ct. Rep. p. 912):
At common law it was undoubted that no court reviewed the proceedings of another court in contempt matters. In Crosby's Case, 3 Wils. 188, Mr. Justice Blackstone said:
In the case of Ex parte Yates, 4 Johns. 318, 369, Chief Justice Kent, after reviewing the English cases, and referring to the Case of Shaftsbury, 1 Mod. 144, concluded as follows:
Without stopping to notice the decisions of the courts of the several states, whose decisions are more or less influenced by the statutes of those states, we turn to an examination of the rulings of this court in respect to the finality of contempt proceedings.
In Ex parte Kearney, 7 Wheat. 38, 5 L. ed. 391, a writ of habeas corpus was issued by this court in behalf of a party committed to jail by the circuit court of the district of Columbia for contempt in refusing to answer a question put to him on a trial. The application for a discharge was refused. The reasons therefor are disclosed by the following quotations from the opinion delivered by Mr. Justice Story (p. 42, L. ed. p. 392):
New Orleans v. New York Mail S. S. Co. 20 Wall. 387, 22 L. ed. 354, was a suit by the company in the circuit court of the United States for an injunction restraining the city from interfering with its [194 U.S. 324, 332] possession of certain premises. Pending this suit the mayor of the city applied to a state court for an injunction restraining the company from rebuilding an inclosure of the premises which the city had destroyed, and the injunction was granted. At this time the city was the only party defendant in the circuit court, although service upon it had been made by delivering process to the mayor. Subsequently the mayor was made a party defendant by a supplemental bill. A final decree was entered against the defendants, and, as a part thereof, was an order adjudging the mayor guilty of contempt in suing out the injunction in the state court, and imposing a fine therefor. Thereupon the case was brought to this court, and, among other things, the validity of the punishment for contempt was challenged, in respect to which we said (p. 392, L. ed. p. 357):
Hayes v. Fischer, 102 U.S. 121 , 26 L. ed. 95, was a suit in equity to restrain the use of a patented device. An interlocutory injunction was granted. The defendant was fined for contempt in violating this injunction, and the entire amount of the fine ordered to be paid over to the plaintiff in reimbursement. To reverse this order defendant sued out a writ of error. A motion to dismiss was sustained, Mr. Chief Justice Waite saying for the court (p. 122, L. ed. p. 96):
In Ex parte Fisk, a case of habeas corpus, 113 U.S. 713, 718 , 28 S. L. ed. 1117, 1119, 5 Sup. Ct. Rep. 724, 726, Mr. Justice Miller speaking for the court declared:
In Worden v. Searls, 121 U.S. 14 , 30 L. ed. 853, 7 Sup. Ct. Rep. 814, a final decree was entered in a suit for infringement of a patent, in favor of the plaintiff, and from that decree the defendants appealed. A preliminary injunction had been granted, and prior to the final decree the defendants were adjudged guilty of a contempt in violating it, and ordered to pay to the complainant the sum of $250 as a fine therefor, together with the costs of the contempt proceedings. This court was of opinion that the decree in favor of the plaintiff was erroneous, and reversed it; and in addition to directing a dismissal of the bill, set aside the order imposing the fines in the contempt proceedings, saying in respect thereto ( p. 25, L. ed. p. 857, Sup. Ct. Rep. p. 820):
But, while setting saide the orders imposing the fines, it was 'without prejudice to the power and right of the circuit court to punish the contempt referred to in those orders by a proper proceeding.'
Again, in Re Chetwood, an application for prohibition ( 165 U.S. 443, 462 , 41 S. L. ed. 782, 788, 17 Sup. Ct. Rep. 385, 392) is this ruling:
In O'Neal v. United States, 190 U.S. 36 , 47 L. ed. 945, 23 Sup. Ct. Rep. 776, in which an order of the district court punishing for contempt was brought here on writ of error, we said (p. 38, L. ed. p. 946, Sup. Ct. Rep. 777):
In Re Watts, 190 U.S. 1 , 47 L. ed. 933, 23 Sup. Ct. Rep. 718, the petitioners having been found guilty of a contempt of court by the district court [194 U.S. 324, 335] of Indiana, applied for a writ of habeas corpus. We issued with that writ a certiorari, and brought the entire record to this court, and, upon the evidence, discharged the petitioners.
From these decisions it is apparent that the uniform ruling of this court has been against the right to review the decisions of the lower court in contempt proceedings by writ of error or by appeal, except in cases of purely remedial and interlocutory orders. Yet we have issued certioraries in aid of habeas corpus proceedings and applications for prohibition, by which the facts in the contempt case have been brought before us, and then we have passed upon the merits of the decision in the lower court.
The thought underlying the denial by this court of the right of review by writ of error or appeal has not been that there was something in contempt proceedings which rendered them not properly open to review, but that they were of a criminal nature, and no provision had been made for a review of criminal cases. This was true in England as here. In that country, as is well known, there was no review of criminal cases by appeal or writ of error. Neither was there in our Federal system prior to the act of February 6, 1889 (25 Stat. at L. 656, chap. 113), which provided for a writ of error from this court in capital cases. While the act creating the court of appeals, March 3, 1891 (26 Stat. at L. 826, chap. 517, U. S. Comp. Stat. 1901, p. 547), authorized a review of criminal cases, yet it limited the jurisdiction of this court to cases of a conviction for a capital or otherwise infamous crime-since limited to capital cases (29 Stat. at L. 492, chap. 68, pp. 549, 556), and gave the right of review of all other criminal cases to the circuit courts of appeal; and, of course, a proceeding in contempt cannot be considered as an infamous crime. Habeas corpus is not treated as a writ of error, and while it may be issued by one court to inquire into the action of a court of co-ordinate jurisdiction, yet the inquiry is only whether the action of the court in imposing punishment was within its jurisdiction. Even in an appellate court, the writ of habeas corpus is not of itself the equivalent of a writ of error, although, when supplemented by certiorari, as [194 U.S. 324, 336] shown in the case of Re Watts, 190 U.S. 1 , 47 L. ed. 933, 23 Sup. Ct. Rep. 718, it may bring the whole case before the appellate court for review.
The act of March 3, 1891, establishing circuit courts of appeals must now be more fully considered. While its primary purpose was the relief of this court by the creation of new appellate courts, and the distribution between those courts and this of the entire appellate jurisdiction of the United States (The Paquete Habana, 175 U.S. 677, 681 , 44 S. L. ed. 320, 321, 20 Sup. Ct. Rep. 290, and cases cited), yet it also enlarged the area of appellate jurisdiction. As originally passed it gave to this court jurisdiction over cases of infamous crimes in addition to that which it theretofore had in capital cases. By 6 it gave to the circuit courts of appeals appellate jurisdiction to review by appeal or writ of error final decisions in the district court and the existing circuit courts in all cases other than those provided for in the preceding section. That this was intended to include criminal cases is evident from a subsequent clause, which makes the decision of the courts of appeals final 'in all cases arising . . . under the criminal laws.' See United States v. Rider, 163 U.S. 132, 138 , 41 S. L. ed. 101, 103, 16 Sup. Ct. Rep. 983, 986, in which, referring to 5 and 6, we said:
As, therefore, the ground upon which a review by this court of a final decision in contempt cases was denied no longer exists, the decisions themselves cease to have controlling authority, and whether the circuit courts of appeals have authority to review proceedings in contempt in the district and circuit courts depends upon the question whether such proceedings are criminal cases. That they are criminal in their nature has been constantly affirmed.
The orders imposing punishment are final. Why, then, should they not be reviewed as final decisions in other criminal cases? It is true they are peculiar in some respects, rightfully styled sui generis. They are triable only by the court against [194 U.S. 324, 337] whose authority the contempts are charged. No jury passes upon the facts; no other court inquires into the charge. Ex parte Tillinghast, 4 Pet. 108, 7 L. ed. 798. As said by Mr. Justice Miller, speaking for the court, in Eilenbecker v. Plymouth County Dist. Ct. 33 L. ed. 801, 803, 10 Sup. Ct. Rep. 424, 426, 134 U.S. 31 , 36:
See also Re Debs, 158 U.S. 564 , 39 L. ed. 1092, 15 Sup. Ct. Rep. 900, in which we said (p. 594, L. ed. p. 1106, Sup. Ct. Rep. p. 910):
But the mode of trial does not change the nature of the proceeding, or take away the finality of the decision. So when, by 6 of the courts of appeals act, the circuit courts of appeals are given jurisdiction to review the 'final decision in the district court and the existing circuit courts in all cases other than those provided for in the preceding section of this act, unless otherwise provided by law,' and the preceding section gives to this court jurisdiction to review convictions in only capital or otherwise infamous crimes, and no other provision is found in the statutes for a review of the final order in contempt cases, upon what satisfactory ground can [194 U.S. 324, 338] it be held that the final decisions in contempt cases in the circuit or district courts are not subject to review by the circuit courts of appeals? Considering only such cases of contempt as the present-that is, cases in which the proceedings are against one not a party to the suit, and cannot be regarded as interlocutory-we are of opinion that there is a right of review in the circuit court of appeals. Such review must, according to the settled law of this court, be by writ of error. Walker v. Dreville, 12 Wall. 440, 20 L. ed. 429; Deland v. Platte County, 155 U.S. 221 , 39 L. ed. 128, 15 Sup. Ct. Rep. 82; Bucklin v. United States, 159 U.S. 680 , 40 L. ed. 304, 16 Sup. Ct. Rep. 182. On such a writ only matters of law are considered. The decision of the trial tribunal, court or jury, deciding the facts, is conclusive as to them.
We, therefore, answer the questions in this way: The second and fourth in the affirmative, the third in the negative. It is unnecessary to answer the first.