Carter v. United States

135 F.2d 858, 12 L.R.R.M. (BNA) 659, 1943 U.S. App. LEXIS 3435

• Court: Court of Appeals for the Fifth Circuit
• Decided: May 18, 1943
• Docket: 10386
• Status: Published

Opinions

SIBLEY, Circuit Judge.

This is a sequel to the case of Brown et al. v. George Coumanis et al., 5 Cir., 135 F.2d 163, this day decided, in which appellant Carter was a party. On the petition therein to enjoin Carter and others from interfering with the restaurant business of Coumanis by picketing and otherwise, a restraining order was granted on June 29, 1942, without notice, to continue five days pending a hearing, which commanded Carter and the others to cease and desist from unlawfully picketing Coumanis’ place of business, unlawfully boycotting it by false statements, interfering with the employees and customers by false and insulting remarks, by threatening violence, and “Interfering with the delivery of food, beverages and merchandise used or to be used by complainant in the legal pursuit of the business.” A copy of this order, and notice of the appointed hearing, was served by the Marshal on Carter. Several days previously he had, by interviews and by telegrams to the dealers in beer who supplied the restaurant, stopped deliveries of beer and even sales to Coumanis when he brought his own truck to get it. The telegrams read: “George’s Cafe, Royal Street, declared unfair by waitress union. Don’t deliver beer until controversy is settled.” After the injunction was issued and served deliveries were resumed, and Carter telegraphed several dealers: “George’s Cafe corner of Royal and St. Michael’s Streets is still unfair to waitress organization, Local 991. Beer salesmen division is called into extraordinary session of its members tonight 7:30 P. M. As a representative of the organization I must ask you to remain in status quo basis until organization takes official action.” One dealer telephoned Carter and asked if he could deliver beer to George’s place, and Carter answered no. On July 2 Coumanis made a sworn application to the Court for a rule against Carter because of his contempt of the order, and a rule was issued returnable the next day. The United States then appeared by the District Attorney and by a writing headed United States of America v. Leo Carter, moved the Court to amend the proceedings for contempt by praying a punishment by fine payable to the United States and by confinement in jail. He also moved the Court to order the proceeding transferred to the criminal side of the Court. The Court allowed the amendment and ordered the transfer, and the trial was continued to July 6. In leaving the courtroom another beer dealer asked Carter if he could now sell beer to Coumanis, and Carter answered no. On July 6, Carter filed a motion to dismiss the proceeding because the Court was without jurisdiction to issue the restraining order in that the complaint on which it issued did not involve interstate commerce, or diversity of citizenship, or a federal question. He also filed an answer denying an intent to violate the orders of the Court. A jury found Carter guilty, and he was sentenced to pay a fine of $1,000, and to be imprisoned in jail for six months. On this appeal no errors in the trial are assigned and argued. The specific things assigned as error are that the motion to dismiss was not sustained, and that the sentence has been imposed for disobeying a void order. We assume therefore that Carter has intentionally and contumaciously set at naught this restraining order, and will address ourselves solely to the question whether he can be punished for his contempt.

This was clearly a trial for criminal contempt. At the time of the trial the violated order had expired by its own terms, and there was no purpose to enforce it for the benefit of Coumanis. The United States stood formally as prosecutor, seeking to vindicate the dignity of the government, and not the civil rights of a litigant. The ultimate fate of the civil case is of no consequence at all, though it would be controlling in a case of civil contempt. Gompers v. Buck’s Stove & Range Co., 221 U.S. 418, 31 S.Ct. 492, 55 L.Ed. 797, 34 L.R.A.,N.S., 874. It was there said: “Proceedings for civil contempt are between the original parties, and are instituted and tried as a part of the main cause. But, on the other hand, proceedings at law for criminal contempt are between the public and the defendant, and are not a part of the original cause.” Page 445 of 221 U.S., page 499 of 31 S.Ct., 55 L.Ed. 797, 34 L.R.A.,N.S., 874. It was further said of criminal contempts:« “If, upon the examination of the record, it should appear that the defendants were in fact and in law guilty of the contempt charged, there could be no more important duty than to render such a decree as would serve to vindicate the jurisdiction and authority of courts to enforce orders and to punish acts of disobedience. For while it is sparingly to be used, yet the power of courts to punish for contempts is a necessary and integral part of the independence of the judiciary, and is absolutely essential to the performance of the duties imposed on them by law. Without it they are mere boards of arbitration, whose judgments and decrees would be only advisory. If a party 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 a mere mockery.” Page 450 of 221 U.S., page 501 of 31 S.Ct., 55 L.Ed. 797, 34 L.R.A.,N.S., 874.

In the first Judiciary Act the courts of the United States were given 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.” 1 Stat. 83, § 17. In 1831, the power was limited to misbehavior in the presence of the court or so near thereto as to obstruct the administration of justice, to misconduct of officers of court, and to disobedience of or resistance to lawful orders and commands of the court. 4 Stat. 487, § 1. These provisions of law are preserved in Section 268 of the Judicial Code, 28 U.S.C.A. § 385. The only form of contempt here presented is disobedience of and resistance to the temporary order of the court which forbade interference with the delivery of merchandise to be used in the business of Coumanis. The question posed is, was that “a lawful order or command”?

The appellant argues that no order or command is lawful which is issued by a court without jurisdiction; that while the district court adjudged it had jurisdiction, this court has adjudged it did not, so that all the orders and judgments it made are nullities, and no punishment can be inflicted for disobedience. Many cases are cited, especially Ex parte Rowland, 104 U.S. 604, 26 L.Ed. 861; Ex parte Fisk, 113 U.S. 713, 5 S.Ct. 724, 28 L.Ed. 1117; In re Ayers, 123 U.S. 443, 8 S.Ct. 164, 31 L.Ed. 216; and In re Sawyer, 124 U.S. 200, 8 S.Ct. 482, 31 L.Ed. 402. The first, Rowland’s, was a mandamus against County Commissioners to compel them to levy and cause to be collected a tax to pay a judgment. They did levy it, but did not collect it for it was the tax collector’s duty to collect it; and for this reason, on habeas corpus, the Supreme Court held they could not be imprisoned for not doing what they were under no duty to do, the power of mandamus not extending so far. This case was really a use of habeas corpus jurisdiction to correct a wrongful final civil judgment, which was being enforced by imprisonment. That it was predominantly a case of civil contempt is shown by the provision of the sentence that satisfaction of the plaintiff’s judgment should at once discharge the contemnors from imprisonment. In Ex parte Fisk, the defendant in a civil case refused to answer questions in an effort by the plaintiff to take his deposition. The court fined him and put him in jail till the fine should be paid. The Supreme Court held there was no law to compel the defendant to give testimony by such deposition, and ordered his release, habeas corpus being used because there was then no appeal from a contempt order, as the Supreme Court said. In Ayers case, the federal Circuit Court was asked to enjoin the Attorney General of Virginia from filing suits to recover the State’s taxes. The Court enjoined; the Attorney General nevertheless filed the suits j and the Court attached him. He was sentenced to pay a nominal fine and be imprissoned until' he dismissed the suits. On habeas corpus because no appeal lay, the Supreme Court held that the proceedings were really against the State of Virginia, contrary to the Eleventh Amendment of the Constitution, and were therefore without federal jurisdiction, and ordered release. The contempt proceeding was clearly a civil one, and the order held to be unlawful was a direct violation of the Constitution. Sawyer’s case also was against public officers acting under State law, enjoined by a federal court from performing their lawful functions, and imprisoned for continuing to act. On habeas corpus the Supreme Court held the subj ect matter was not within equity jurisdiction and the injunction was void, and ordered discharge. The Chief Justice and Justice Harlan, quite correctly it seems to us, dissented because the. temporary injunction, though improvident, was not void, and ought to have been obeyed while in force. These cases all speak of the judgments as void for want of jurisdiction and as not able to support a charge of contempt for disobedience; but there are many kinds of jurisdiction — of the person, over the place, in equity, as a federal court. It cannot now be broadly asserted that a judgment is always a nullity if jurisdiction of some sort or other is wanting. It is now held that, except in case of plain usurpation, a court has jurisdiction to determine its own jurisdiction, and if it be contested and on due hearing it is upheld, the decision unreversed binds the parties as a thing adjudged. Treines v. Sunshine Mining Co., 308 U.S. 66, 60 S.Ct. 44, 84 L.Ed. 85; Sunshine Anthracite Coal Co. v. Adkins, 310 U.S. 381, 403, 60 S.Ct. 907, 84 L.Ed. 1263; Stoll v. Gottlieb, 305 U.S. 165, 59 S.Ct. 134, 83 L.Ed. 104. So in the matter of federal jurisdiction, which is often a close question, the federal court may either have to determine the facts, as in contested citizenship, or the law, as whether the case alleged arises under a law of the United States. See Binderup v. Pathe Exchange, 263 U.S. 291, at page 305, 44 S.Ct. 96, 68 L.Ed. 308. A federal question substantial enough to give jurisdiction when first raised, may after decision by the Supreme Court become in later cases a frivolous question, insufficient again to serve. Jurisdiction vel non, as finally established, is not a safe or clear guide in all cases of contempt. Thus United States v. Shipp, 203 U.S. 563, 27 S.Ct. 165, 166, 51 L.Ed. 319, 8 Ann.Cas. 265, was a case of criminal contempt arising from the killing of a man in custody while his case was on appeal to the Supreme Court, that court having ordered “that all proceedings against the appellant be stayed, and the custody of said appellant be retained pending this appeal”, the question being whether the courts of the United States had any jurisdiction over appellant’s case. The lower court had declined jurisdiction, so the question was not whether the appellate court had jurisdiction to reverse a wrongful assumption of jurisdiction, but whether it could assert federal jurisdiction for the first time. Justice Holmes said for a unanimous court: “It has been held, it is true, that orders made by a court having no jurisdiction to make them may be disregarded without liability to process for contempt [citing the cases above discussed]. But even if the circuit court had no jurisdiction to entertain Johnson’s petition, and if this court had no jurisdiction of the appeal, this court, and this court alone, could decide that such was the law. It and it alone necessarily had jurisdiction to decide whether the case was properly before it. On that question, at least, it was its duty to permit argument, and to take the time required for such consideration as it might need. * * * Until its judgment declining jurisdiction should be announced, it had authority, from the necessity of the case, to make orders to preserve the existing conditions and the subject of the petition.” Page 573 of 203 U.S., page 166 of 27 S.Ct., 51 L.Ed. 319, 8 Ann.Cas. 265. Such orders are not unlawful but lawful orders. The quoted words apply literally to the district court in this case. It had a new question of jurisdiction to solve. It alone had authority in the first instance to decide whether or not the case arose under the Norris-La Guardia Act, 29 U.S.C.A. §§ 101-115, a law of the United States. It could lawfully by a temporary injunction preserve the business which was the subject of the litigation until a hearing could be had. The order was not final. It deprived Carter of no right. It only required that he refrain from interfering with another man for a few days. Carter did not elect to move to dissolve the order, but to flout and disobey it. The order was, while it lasted, a lawful one, such as a district court of the United States in the exercise of its equity powers could make, pending a hearing of a doubtful question of jurisdiction. The question of jurisdiction was not frivolous. It had never before been decided. The Norris-La Guardia Act does qualify its denials of jurisdiction with such exceptions as make possible a rational implication that in the excepted cases jurisdiction is granted. In its second section it does declare a policy that an employee should be free to decline to associate with his fellows, and should be free to designate his own representatives in bargaining, to which end the following “definitions of and limitations on” court authority are made. One of the things defined as not to be restrained is, Section 4(e), “patrolling * * * not involving fraud or violence”, with a possible implication that patrolling which does involve fraud or violence might in all cases be restrained. The district court concluded it had jurisdiction, and if appeal had not been taken, Carter as a party would probably have been bound by the judgment. We have reversed that conclusion, but we think the restraining order made to preserve the subject of litigation, to-wit, Coumanis’ business, pending a hearing, was not by the reversal rendered unlawful or void. The United States may punish wilful disobedience of it. We have sustained a similar temporary order as a basis for punitive contempt proceedings, though the law under which the suit was alleged to arise proved to be unconstitutional, in Locke v. United States, 5 Cir., 75 F.2d 157. See also Howat v. Kansas, 258 U.S. 181, 42 S.Ct. 277, 66 L.Ed. 550.

It is lastly urged that the restraining order was unlawful because the petition did not allege, and it was not found as a fact, that the public officers charged with the duty to protect Coumanis’ property were unable or unwilling to furnish adequate protection, as required by 29 U.S.C.A. § 107(e). This is not a case where physical damage to property was done or threatened, and the sub-section referred to has no application. But if it does apply, so does the proviso which follows, allowing a temporary restraining order without notice on a showing and a finding of substantial and irreparable injury unavoidably imminent. This allegation and fact finding was had.

The judgment is affirmed.