The interference with the operation of a road by a receiver appointed by the federal court is itself a contempt, as the receiver is an officer of the court, and no specific injunction order in such case is required. The power of the court to punish disobedience of an injunction order by a party to the case as a contempt has been repeatedly adjudged.2 The power to punish for contempt is inherent in all courts of record, and it has been held that in the case of courts established by the constitution this power cannot be abridged by the legislature, as this is the inherent power of a co-ordinate branch of the government.3

4

It was intimated by the supreme court however that the power of the circuit courts and district courts of the United States to punish for contempt could be regulated by congress, and that their power is limited by the act of 1831, cited above, and that the power to punish by fine and imprisonment is negative of all other forms of punishment. The circuit court said in the Debs case that the power of the court to make an order carries with it the equal power to punish for disobedience of that order and the inquiry as to the question of disobedience has been from time immemorial within the discretion of the court. It was also held that a case of contempt was not triable by jury, nor is a judgment on such charge a substitute for, or any defense to a criminal prosecution for the same act.

§ 102. Direct and indirect contempts.-The increasing use of injunctions in the federal courts in trade disputes, has led to a discussion on the inherent distinction between direct and indirect contempts, that is, between those committed in the presence of the court and properly subject as such to summary hearing and punishment and requiring no hearing, as the acts are committed in the view of the court, and on the other hand those of alleged disobedience to the orders of the court not committed in its presence, and therefore necessarily re

1 United States V. Kane, 23 Fed. Rep. 748; In re Doolittle, 23 Fed. Rep. 544; In re Higgins, 27 Fed. Rep. 443; Thomas v. R. Co., supra.

2 Ex Parte Lennon, supra; In re Debs, supra.

3 Carter v. Commonwealth, 96 Va. 791 (1899).

4 Ex parte Robinson, 19 Wall. 513, 22 L. Ed. 205 (1874).

158 U. S., 1. c. 594.

quiring proof before punishment can be imposed. It has been urged as to this latter class of cases, particularly where parties are charged with the responsibility of the acts of others under the law of conspiracy, that the hearing should not be summary, but that process should be served, and that the procedure should be regulated by law in accordance with constitutional guarantees in criminal hearings.1

§ 103. Criminal and civil contempts.-Contempts are also classified as criminal contempts, which are prosecuted to preserve the power and vindicate the dignity of the court in punishing the defendant, and as civil contempts, which are prosecuted to preserve and enforce the rights of private parties and to compel obedience to orders and decrees so as to enforce the rights and administer the remedies to which the court has found such parties to be entitled.

A criminal contempt, said the court of appeals in the Nevitt case, involves no element of personal injury. It is directed

2

1 In the 54th congress, 1896, a bill was reported from the judiciary committee, providing that contempts be divided into two classes, direct and indirect, the former including contempts committed during the sitting of a court, or of a judge in chambers, or so near thereto as to obstruct the administration of justice. These were to be punishable summarily, without written accusation; while the other, that is, indirect contempts, were to require an order to show cause and a procedure upon testimony, as in criminal cases, and a jury trial, if applied for by the accused, with a preservation of the testimony by bill of exceptions and stay of the judgment upon giving bond pending appeal.

The provisions of the act ap plied to all proceedings for contempt in all courts except the supreme court. The bill passed the

senate and was reported with amendments by the house judiciary committee (see House Report No. 2471, 54th congress), but it was not reached for passage. It has been introduced in sub stantially the same form in different congresses since, but has not been enacted into law.

In re Nevitt, Cir. Ct. App., 8th Circuit, 55 C. C. A. 622, 117 Fed Rep. 448 (1902), quoted by the supreme court in Bessette v. W. R. Conkey Co., supra.

In Clay v. Waters, 178 Fed. 385 (1910), C. C. A. 8th circuit, it was held that a judgment for a criminal contempt committed in the course of a suit in equity, is reversible by writ of error only, and that a judgment against a party to a suit in equity for a civil contempt committed therein before final decree, is reversible by appeal from the final decree only, and that judgment against

against the power and dignity of the court and private parties have little, if any, interest in the proceedings for its punishment.

It was said by the supreme court in the Bessette case,1 which was a trade dispute not involving interstate commerce, that it may not be always easy to classify the particular act as belonging to either of these two classes and that it may partake of the characteristics of both. In combinations interfering with interstate commerce whether the proceedings are filed directly by government or by public carriers, it would seem that the violation of the injunction order made for the promotion of public and not private ends would fall in the class of criminal rather than civil contempts.

The fact that a part of the fine imposed in punishment of a contempt is made payable to the government is not conclusive that it is a criminal and not a civil contempt.' The distinguishing characteristic between the civil and criminal contempt is the dominating object of the prosecution and the party chiefly interested therein. In the language of the circuit court of appeals, if the chief purpose of the proceed

a party for a civil contempt committed after the decree is reversible by appeal.

11. c. p. 329.

2 In re Christensen Engineering Co., 194 U. S. 459, 48 L. Ed. 1072 (1904), the court held that an order of the circuit court adjudging the defendant in a patent suit guilty of a contempt in disobeying a preliminary injunction, and ordering him to pay a fine, one-half to the complainant and one-half to the United States was clearly a criminal contempt, and as such reviewable on writ of error by the circuit court of appeals without waiting for final decree and mandamus was issued directing that court to reinstate and hear the case. In Merchant's Stock & Grain Co. v. Board of Trade, 187 Fed. 893 (1911), the

circuit court of appeals, 8th circuit, distinguished from the Christensen case a judgment against a party for violation of a temporary injunction, although onefourth of the fine imposed was paid to the United States, and the balance to the complainant, and held that the violation of the order was a civil contempt, as the chief and dominating purpose was the protection of the party complainant, and that while a judgment for a criminal contempt was reviewable by writ of error, a judgment for a civil contempt committed before final decree was reviewable by appeal from the final decree only, and if it was committed after the final decree it was reviewable by appeal.

3 Merchant's Stock & Grain Co. Case, supra.

ing for contempt is to enforce the rights and administer the remedies to which courts have adjudged or may adjudge a private party to be entitled, and if such private party is the person chiefly interested in it, the proceeding is for a civil contempt. If the chief object of the prosecution as in cases of misconduct in court, or the disobedience of a subpoena, will be punishment of the offender to preserve the right and vindicate the dignity of the court, and if the party chiefly interested in the prosecution is the government or the public, the proceeding is for a criminal contempt.

The distinction between civil and criminal contempts was forcibly illustrated in the contempt proceedings growing out of the litigation between the Buck Stove & Range Co. and the American Federation of Labor.1 Individual officials of the federation were charged with contempt of the injunction in publishing references to the complainants under the headings "unfair" or "we don't patronize" and were found guilty of contempt and sentenced to imprisonment. Subsequently the litigation between the parties to the suit was adjusted and the case was dismissed. The supreme court held that a contempt proceeding was as a rule neither wholly civil nor wholly criminal, but this proceeding under the facts of this case was distinctively civil, and that there was nothing in the record indicating that it was a proceeding with the court or the government on one side and the defendant on the other. As it was a civil proceeding, imprisonment could only be imposed as a coercive means to compel the doing of some act commanded by the court for the benefit of the other party. The

1 Gompers V. Buck Stove & Range Co., 220 U. S. - 55 L. Ed. May 15, 1911, reversing 33 App. D. C. 516. The court in this case said proceedings at law for criminal contempt should be entitled as a separate action. That this was not a mere matter of form as the citizen was entitled to know by a mere inspection of the proceedings whether it was instituted for private litigation or for public prosecution. He should not be

left in doubt as to whether relief or punishment was the object in view. In a criminal contempt the defendant is entitled to the constitutional protection against self incrimination but not in a proceeding for civil contempt. In a civil case the complainant is entitled to the costs, but in a criminal contempt the costs collected go to the government for the use of its officials.

proceeding therefore necessarily ended with the settlement of the main case of which it was a part; and it was therefore dismissed without prejudice to the right of the court to punish by a proper proceeding any contempt which had been committed against its own authority.

§ 104. Conspiracy and contempt.-The law of conspiracy has been applied in proceedings for contempt, and persons not parties to the record have been charged with contempt as coconspirators with the defendants, and therefore in law responsible for their acts. The liability to punishment for contempt is not limited to parties to the record, but any person, who knowingly assists in defeating the order of a court, may be charged with contempt therefor. In such cases, however, where the injunction has been issued for the benefit of a private person with no public interest involved, the offense of the person not a party is solely that of resistance to the authority and dignity of the court and he should be proceeded against upon that theory, and not upon the theory of being bound by the injunction as a party thereto.

An order of a federal circuit court, adjudging a person not a party to a suit guilty of contempt for conspiring to violate an injunction in a trade dispute, was held reviewable by writ of error in the circuit court of appeals, but in such a writ only matters of law can be considered, the decision of the trial tribunal being conclusive of the facts.

§ 105 (90). Mandatory injunctions in interstate commerce.As a preventive remedy is the only adequate remedy in the case of a threatening of interference with interstate commerce, the form of the preventive relief must be adapted to the emergency, and the injunction mandatory in its terms is therefore often the only remedy which meets the emergency. A mandatory injunction is one that compels the defendant to restore things to their former condition, and virtually directs him to perform the act. Specific provision is made in the Interstate Commerce Act for a

1 See In re Bessette, 111 Fed. Rep. 417.

2 See In re Reese, 98 Fed. Rep. 984, supra.

8 Bessette v. Conkey Co., supra (1904).