Gompers v. Buck's Stove & Range Co.

delivered the opinion of the Court:

At the threshold of this inquiry, we axe met with a motion filed by complainant to dismiss the appeal. This motion is based upon three grounds: First, that the judgment of the court below is reviewable by writ of error only, and not by appeal; second, that the record contains no bill of exceptions, agreed statement of facts, or other appropriate basis for review of the judgment in this court; and, third, that the appeal presents no case susceptible of review by this court upon the record therein.

No bill of exceptions has been preserved or appears in the record. The case was brought here by the defendants upon the theory that the judgment decreeing them guilty of contempt is in the nature of an interlocutory order made in the original injunction proceedings, and that the case should come here for review on appeal as part of the equitable proceeding. The motion, therefor, primarily raises the question whether this case can be reviewed upon appeal, or whether it should have come here on error. Section 226 of the Code, providing for appeals to this court, is as follows: “Any party aggrieved by any final order, judgment, or decree of the supreme court of the District of Columbia, or of any justice thereof, ‘including any final order or judgment in any case heard on appeal from a justice of the peace,’ may appeal therefrom to the said court of appeals; and upon such appeal the court of appeals shall review such order, judgment, or decree, and affirm, reverse, or modify the same, as shall be just.” [31 Stat. at L. 1225, chap. 854.] This provision of the Code embraces appeals in cases both at law and in equity, but it in no way affects the character of record necessary to obtain a review in this court. The record in a law cause must still contain a bill of exceptions, or its equivalent, to bring before the court the evidence and rulings thereon of the court below. Ormsby v. Webb, 134 U. S. 47, 33 L. ed. *563805, 10 Sup. Ct. Rep. 478; Metropolitan R. Co. v. District of Columbia (Metropolitan R. Co. v. Macfarland) 195 U. S. 322, 49 L. ed. 219, 25 Sup. Ct. Rep. 28. The record, therefore, essential to properly present a law cause for review in this court, must be the same as if the case were brought upon writ of error instead of appeal. That being true, the general rule as to the preparation of the record applicable to the appeal of contempt cases in Federal courts will apply to this court.

We are of the opinion that, under our practice, where the contempt is civil and the order adjudging contempt is made in the course of the original proceedings, the order may be treated as interlocutory, and may be considered as a part of such proceedings, and so treated, either upon the appeal of the original cause or upon a special appeal. Hence, if the contention of counsel for defendants is correct, the order being one made in the original injunction proceeding, if a civil contempt, would be appealable and reviewable in the same manner as the original cause.

The mere fact, however, that the alleged contempt was brought to the attention of the court by petition of the complainant, and not upon complaint of the prosecuting officer of the government, is immaterial in determining whether the process issued thereon is civil or criminal. We are not concerned with the manner in which the court’s attention was called to the offense, but with the proceedings after the court took cognizance thereof.

Blackstone (bk. 4, chap. 20), considering the general subject of crimes, treats contempt of court under the head of “summary convictions.” The only distinction he makes between contempts and other misdemeanors is in the manner in which they are prosecuted. Enumerating the different species of contempt, he refers to “those committed by parties to any suit or proceeding before the court, as by disobedience to any rule or order made in the progress of a cause, by nonpayment of costs awarded by the court upon a motion, or by nonobservance of awards duly made by arbitrators or umpires after having entered into a rule for submitting to such determination. . Indeed, the attachment for most of this species of contempts, and especially for non*564payment of costs and nonperformance of awards, is to be looked upon rather as a civil execution for the benefit of the injured party, though carried on in the shape of a criminal process for a contempt of the authority of the court. And therefore it hath been held that such contempts, and the process thereon, being properly the civil remedy of individuals for a private injury, are not released or affected by the general act of pardon.”

It will be observed that the learned commentator is careful to limit civil contempts to the disobedience of orders made in the nature of civil execution for the benefit of the injured party. The commitment in such instances is upon civil process, and is coercive, .to compel obedience to the order. When the order is complied with, the restraint is at an end. We are not here confronted with such a case. This is an alleged disobedience of a decree of injunction restraining the defendants from doing certain acts injurious to the complainant. It comes within the general classification of criminal contempts. The penalty is imposed by way of punishment, and is inflicted not for the benefit of the complainant, but on behalf of the public, to prevent a repetition of the offense in similar cases.

In the leading case of Bessette v. W. B. Conkey Co. 194 U. S. 324, 48 L. ed. 997, 24 Sup. Ct. Rep. 665, Mr. Justice Brewer, in distinguishing between civil and criminal contempts, quoted with approval from the opinion of Judge Sanborn of the court of appeals of the eighth circuit in Re Nemit, 54 C. C. A. 622, 632, 117 Fed. 448, 458, as follows: “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 *565remedies they were instituted to protect or enforce. Thompson v. Pennsylvania R. Co. 48 N. J. Eq. 105, 108, 21 Atl. 182; Hendryx v. Fitzpatrick (C. C.) 19 Fed. 810; Ex parte Culliford, 8 Barn. & C. 220; R. v. Edwards, 9 Barn. & C. 652; People ex rel. Munsell v. Oyer & Terminer Ct. 101 N. Y. 245, 247, 54 Am. Rep. 691, 4 N. E. 259 ; Phillips v. Welch, 11 Nev. 187, 190; State v. Knight, 3 S. D. 509, 513, 44 Am. St. Rep. 809, 54 N. W. 412; People ex rel. Gaynor v. McKane, 78 Hun, 154, 160, 28 N. Y. Supp. 981; 4 Bl. Com. 285; 7 Am. & Eng. Enc. Law, p. 68. 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 the party or the 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.”

The distinction between civil and criminal contempts seems to be that where the order of the court is made in a civil proceeding solely for the benefit of one of the parties litigant, and is disobeyed by the other party to the suit, an order committing such party for contempt until he yields obedience to the order is a civil proceeding. Such are orders requiring the payment of money or the performing of some act for the benefit of the opposing litigant, and are not matters in which the public is interested. Criminal contempts consist in such disobedience of the mandates or decrees of a court as constitute a defiance of the power and authority of the court. A disobedience or disregard of an order of injunction is usually treated as a criminal contempt.

In the case of Phillips v. Welch, supra, the contempt consisted in the refusal of a party to obey a decree of injunction restraining him and certain others from diverting water from a stream, to the damage of each other. The court, in determin*566ing whether this constituted a civil or criminal contempt, said: “If the contempt consists in the refusal of a party to do something which he is ordered to do for the benefit or advantage of the opposite party, the process is civil, and he stands committed till he complies with the order. The order in such case is not punitive, but coercive. If, on the other hand, the contempt consists in the doing of a forbidden act, injurious to the opposite party, the process is criminal, and conviction is followed by a penalty of fine or imprisonment, or both, which is purely punitive. In the former case the private party alone is interested in the enforcement of the order, and the moment he is satisfied, the imprisonment terminates; in the latter case the state alone is interested in the enforcement of the penalty. It is true the private party receives an incidental advantage from the infliction of the penalty, but it is the same sort of advantage precisely which accrues to the prosecuting witness in a case of assault and battery, the advantage being that the punishment operates in terrorem, and by that means has a tendency to prevent a repetition of the offense. The principle of discrimination between the civil and criminal process for contempt here indicated, though not expressly recognized in any of the cases that have fallen under our observation, is entirely consistent with all the decisions, and is the only means of rendering them consistent with each other. It may, therefore, be considered established by them.” In this ease the contempt was held to be a criminal one. The court rendered a similar decision in State v. Knight, 3 S. D. 509, 44 Am. St. Rep. 809, 54 N. W. 412, where the offense consisted in disobeying an order of injunction restraining the foreclosure of a mortgage. To the same effect are the following cases: Baltimore & O. R. Co. v. Wheeling, 13 Gratt. 57; Thompson v. Pennsylvania R. Co. 48 N. J. Eq. 105, 21 Atl. 182; New Orleans v. New York Mail S. S. Co. 20 Wall. 387, 22 L. ed. 354; Worden v. Searls, 121 U. S. 14, 30 L. ed. 853, 7 Sup. Ct. Rep. 814.

Roth the Federal and State courts have generally regarded the disobedience of an injunctive order, where the order does not involve the performance of some act for the exclusive bene*567fit of a party litigant, as a criminal contempt, and have universally refused, in the absence of a bill of exceptions or its equivalent, appearing in tbe record, to consider tbe facts on appeal. A recent decision, strongly in point, is found in tbe ease of Continental Gin Co. v. Murray Co. 89 C. C. A. 563, 162 Fed. 873, in wbicb tbe Murray Company brought suit against tbe Continental Gin Company in tbe circuit court for tbe district of Delaware, alleging infringement of patents. Tbe circuit court entered an interlocutory decree against tbe Gin Company for an injunction and account. Tbe injunction restrained defendants generally from making, using, or selling tbe articles with respect to wbicb tbe infringement was alleged. Subsequently, on motion of tbe Murray Company in tbe same proceeding, tbe plaintiffs in error were adjudged guilty of contempt for disobedience of tbe injunction, and ordered to pay a fine of $250 to tbe United 'States, and $500 to tbe complainant as counsel fee and tbe costs of tbe proceeding. Tbe matter was brought to tbe circuit court of appeals upon writ of error, but no bill' of exceptions appeared in tbe record. Mr. Justice Moody, delivering tbe opinion of tbe court, held that, while judgment in contempt may be reviewed in tbe circuit court of appeals by writ of error, in tbe absence of the evidence adduced at tbe bearing of tbe contempt proceeding in tbe court below appearing in tbe record by bill of exceptions, “there is no record, in tbe proper sense of tbe word, in wbicb tbe assignment of error can be applied, and, in tbe further absence of any finding of facts or special verdict or request for ruling upon tbe facts or upon questions of law, there is nothing left in tbe record to consider except tbe motion for attachment, tbe order to show cause, and tbe judgment.”

Tbe order finding tbe defendants guilty of contempt was not an interlocutory order in tbe injunction proceeding. It was in a separate action, one personal to tbe defendants, with tbe defendants on one side and tbe court vindicating its authority on tbe other. In Alexander v. United States, 201 U. S. 117, 50 L. ed. 686, 26 Sup. Ct. Rep. 356, a witness refused to answer certain questions and produce certain books, on tbe *568ground of immateriality, claiming immunity also under the 5th Amendment to the Federal Constitution. The court overruled the objections, and ordered him to answer the questions and produce the books. The order left the witness no alternative but to obey or answer for contempt. The court held that the order was interlocutory in the original suit, from which an appeal would not lie; but that, if the witness had been punished for contempt, it would constitute a separate, independent action from which an appeal would lie. In referring to this distinction, the court said: “This power to punish being exercised, the matter becomes personal to the witness and a judgment as to him. Prior to that, the proceedings are interlocutory in the original suit. This is clearly pointed out by Circuit Judge Yan Devanter, disallowing an appeal from an order like those under review, in the case of Nelson v. United States (No. 490), in error to the circuit court of the United States for the district of Minnesota. The learned judge said: T am of opinion that the mere direction of the court to the witnesses to answer the questions put to them and to produce the written evidence in their possession is not a final decision; that it more appropriately is an interlocutory ruling or order in the principal suit, and that, if the witnesses refuse to comply with it, and the court then exercises its authority, either to punish them or to coerce them into compliance, that will give rise to another case or cases to which the witnesses will be parties on the one hand and the government, as a sovereign vindicating the dignity and authority of one of its courts, will be a party on the other hand.’ ”

The offense here charged is a criminal one, from which an appeal will lie; but the failure to include in the record a bill of exceptions or its equivalent closes the record so far as this inquiry is concerned, except as to the petition, answers, citation, and judgment. In the absence of a bill of exceptions, we must presume that the evidence was sufficient to establish the truth of each charge contained in the petition of which the trial justice found the defendants guilty. Our inquiry, therefore, is limited solely to questions of law.

*569This brings us to a consideration of the charges contained in the petition. It appears, among other things, that between the date when the court announced its decision granting the temporary injunction and the date of filing the bond required, by the complainant, the defendants Gompers and Morrison advanced the issue and circulation of the January, 1908, edition of the American Federationist, and printed therein the name of complainant in the “Unfair” or “We Don’t Patronize” list. For this the trial justice found the defendants guilty of contempt. It is contended by counsel for defendants that the temporary restraining order did not become operative until the filing of the bond, and that, until the required undertaking had been filed, there could be no disobedience of the order. We need not express an opinion on this point. The defendants were found guilty of circulating through the American Federationist, after the injunction became effective, the “Unfair” or “We Don’t Patronize” list with complainant’s name thereon, as published in the said January, 1908, and previous editions of that paper. It is charged, and found to be true by the trial court, that this circulation continued up to the date of the filing of the petition in this cause. It is also charged in the petition, and found to be true, that the defendants Gompers and Morrison published and circulated through the American Federationist articles calling the attention of the members of the American Federation of Labor and their friends throughout the country to the injunction issued by the court below in such a manner as to cause their followers to disregard and disobey the same, the intended effect of which was to injure and interfere with complainant’s business and the sale of its product, and to restrain the membership of the American Federation of Labor and the public generally from patronizing the complainant, and to continue and maintain the boycott against the business of complainant. The following expressions appear in the articles so published:

“With all due respect to the court, it is impossible for us to see how we can comply with all the terms of this injunction. * * * This injunction cannot compel union men or their friends to buy the Buck’s stoves and ranges. For this reason, *570the injunction will fail to bolster up the business of this firm, which it claims is so swiftly declining.

“Individuals, as members of organized labor, will still exercise the right to buy or not to buy the Buck’s stoves and ranges. It is an exemplification of the saying that ‘You can lead a horse to water, but you can’t make him drink;’ and more than likely these men of organized labor and their friends will continue to exercise their right to purchase or not purchase the Buck’s stoves and ranges.

“The publication of the Buck’s Stove & Range Company on the ‘We Don’t Patronize’ list of the American Federation of Labor is only an incident in the history of the ease. These stoves might have been left as severely alone by purchasers if they had never been mentioned on that list. It is not the matter of removing that firm from the list against which we primarily protest, it is this injunction invading the freedom of the press.

“The temporary injunction issued by Justice Gould, of the court of equity, of the District of Columbia, in the (Van Cleave) Buck’s Stove & Range Company of St. Louis against the American Federation of Labor, its officers and all others, has been made- permanent. The case will now be carried to the court of appeals of the District of Columbia.

“It should be borne in mind that there is no law, aye, not even a court decision, compelling union men or their friends of labor to buy a Buck’s stove or range. No, not even to buy a Loewe hat.

“Bear in mind that an injunction issued by a court in no ■ way compels labor or labor’s friends to buy the product of the Van Cleave Buck’s Stove & Range Company of St. Louis.

“Fellow workers, be true and helpful to yourselves and to each other. Remember that united effort in cause of right and just must triumph.”

It will be observed that in each of the above publications, the members of the American Federation of Labor and their friends are combined together. This is most significant, and, in the *571conditions then existing, was manifestly intended to encourage and counsel a continuation of the forbidden acts.

It is charged in the petition that, on numerous occasions, while the injunction was in full force and effect, the defendant Gompers gave utterance to similar statements in public speeches. For example, in a speech delivered before a public gathering of working people on May 1, 1908, in the city of Chicago, Illinois, Gompers said:

“I might say just parenthetically about the hatters’ case that you are not now permitted to boycott the Loewe hats, but I want to call your attention to the fact that there is no law compelling you to wear a Loewe hat, nor has any judge issued a mandamus compelling you to buy a Loewe hat. That applies equally to Mr. Van Cleave’s stoves and ranges. And, by the way, I don’t know why you should buy any of that sort of stuff. I won’t; but that is a matter to which we can refer more particularly in our organizations.”

In a public address to the working people of New York city on the 19th of April, 1908, Gompers made the following statement :

“Of course, in the case of the Buck’s Stove & Bange Company, if I told you that the Buck’s Stove & Bange Company was still unfair, when I got back to Washington to-morrow, or some place where they say people play checkers with their noses — well, as I say, I am not prepared to tell you that these things are unfair. But there is no law, no court decision, that compels you to buy them, nor does any law compel you to buy anything without the union label.”

It was found by the court below to be a fact, not only that these statements were made as charged, but that they were made with the intent of inciting the membership of the American Federation of Labor and their friends to continue the boycott against the business of complainant in defiance of the decree of the court. The defendants having been found guilty of the offenses above charged, in the absence of the evidence from the record, the sole question left for us to consider is *572whether, under the circumstances, they constitute contempt of court.

It must be remembered that the injunction affected directly and indirectly several millions of the people of the United States. The decree did not run alone against these defendants, but against about two million members of the American Federation of Labor throughout the country. Hence, it is proper to consider the effect of the acts of the defendants upon this membership and the persons who had formerly been prevented by the boycott from patronizing the complainant.. While these acts, if they had affected only the conduct of the defendants, or if the injunction had been against them alone, might not have amounted to more than a comment or criticism of the action of the court, yet, if the remarks, when published and uttered, were such as to tend to inflame their followers into a' feeling of resentment to the decree of the court and lead to disobedience of its commands, the defendants would be chargeable with contempt for producing this result. Contempt may be committed by innuendo and insinuation. It may consist in maliciously saying or doing anything that will have a tendency to induce others to disregard the' authority of the court. While the publications and utterances before us may not, when literally interpreted, constitute a technical contempt, yet, if the manifest intent of the defendants was not only to disobey the order of the court themselves, but also to inspire their followers to do likewise, it may'be regarded as a punishable contempt. We think it is this sort of an offense of which the defendants are here guilty.

The boycott waged by the American Federation of Labor against the business of complainant had ‘become so acute and extensive that the terms “boycott,” “unfair,” and “we don’t patronize,” when used in connection with complainant’s name, had accuired such a significance to the organization and its friends that the mere printing or uttering of the name in that connection was a signal to the membership and their friends not to deal with the complainant or persons having business relations with it. As Mr. Justice Robb said in the opinion of *573this court in the former case (33 App. D. C. 83), referring to the “Unfair” or “We Don’t Patronize” list: “The court below found, and in that finding we concur, that this list in this case constitutes a talismanic symbol indicating to the membership of the Federation that a boycott is on and should be observed.” The mere mention of complainant’s name by these leaders in the columns of' the Federationist or on the public platform in connection with the expressions “boycott,” “unfair,” or “we don’t patronize,” might tend to influence many to disregard the decree of the court, and thus become as effective notice to their followers as it had formerly been when published in the “Unfair” or “We Don’t Patronize” list. We are convinced that the acts charged were committed by the defendants for the express purpose of nullifying the order of the court, in the belief that they were technically avoiding the charge of contempt. The acts of these defendants, taken as a whole, can produce in the mind of any reasonable person but one impression, — a concerted, well-planned effort to encourage the membership of the American Federation of Labor and their friends to disregard and disobey the orders of the court, and to create among their followers and their sympathizers a lack of respect for the authority and dignity of the court.

In paragraph 18 of the petition, the defendant John Mitchell is charged with presiding over and taking part in the deliberations of a convention of the United Mine Workers of America on the 25th of January, 1908, at which a resolution was adopted, placing the product of the complainant on the “unfair” list, and fining any member of the organization $5 for purchasing a stove manufactured by complainant; providing that, for nonpayment of the fine, expulsion from the order should be imposed as a penalty. The defendant in his answer admits that he was present and presided over the convention, but disclaims any knowledge of either the consideration or passage of the resolution, until his attention was called to it by the filing of the petition herein. Upon this important issue of fact, owing to the absence of the evidence from the record, we must ac*574cept the conclusion of the trial justice as to the truth of these charges and the guilt of the defendant.

The adoption of this resolution could accomplish but one end, — the perpetuation and continuation of the boycott. A labor organization can conduct an unlawful boycott as effectually by compelling its own members to refrain from dealing with the party boycotted, as by coercing others into similar action. The wilful participation of the defendant being established, the act charged constituted a separate and complete offense, committed in open and brazen disobedience of the express commands of the court.

In addition to finding the defendants guilty of the foregoing offenses, as charged, they were also found guilty of numerous other offenses charged in the petition. Since, however, the finding of guilt on the counts or charges above considered is sufficient to support the judgment of the court, and the penalty imposed is not greater .than could have been inflicted had they constituted the only offenses charged, it will not be necessary to consider the other offenses charged in the petition of which the defendants were found guilty. In a criminal proceeding, where the accused is found guilty as charged under an indictment containing numerous counts, the judgment will not be reversed, though some of the counts are bad, if the good ones are sufficient to support the judgment.

In Claassen v. United States, 142 U. S. 140, 35 L. ed. 966, 12 Sup. Ct. Rep. 169, where the defendant had been convicted of embezzlement on five different counts, the court considered the first count, which it found to be sufficient to support the verdict, and refused to consider the other counts, stating: “This count and the verdict of guilty returned upon it being sufficient to support the judgment and sentence, the question of the sufficiency of the other counts need not be considered. In criminal cases, the general rule, as stated by Lord Mansfield before the Declaration of Independence, is, ‘that, if there is any one count to support the verdict, it shall stand good, notwithstanding all the rest are bad.’ Peake v. Oldham, 1 Cowp. 275, 276; R. v. Benfield, 2 Burr. 980, 985. See also Grant v. *575As tie, 2 Dougl. K. B. 722, 730. And it is settled law in this court, and in this country generally, that, in any criminal case, a general verdict and judgment on an indictment or information containing several counts cannot be reversed on error if any one of the counts is good and warrants the judgment, because, in the absence of anything in the record to show the contrary, the presumption of law is that the court awarded sentence on the good count only. Locke v. United States, 7 Cranch, 339, 344, 3 L. ed. 364, 365; Clifton v. United States, 4 How. 242, 250, 11 L. ed. 957, 961; Snyder v. United States, 112 U. S. 216, 28 L. ed. 697, 5 Sup. Ct. Rep. 118; Bond v. Dustin, 112 U. S. 604, 609, 28 L. ed. 835, 836, 5 Sup. Ct. Rep. 296; 1 Bishop, Crim. Proc. § 1015; Wharton, Crim. Pl. & Pr. § 771. * * * In the case now before us * * * the jury did not return a general verdict against the defendant on all the counts, but found him guilty of the offenses charged in each of the five counts now in question. This being the case, and the sentence being to imprisonment for not less than five years nor more than ten, which was the only sentence authorized for a single offense under the statute on which the defendant was indicted, there is no reason why that sentence should not be applied to any one of the counts which was good.” Applying to the case at bar this wholesome rule in the enforcement of criminal law, the order of the court below, finding the defendants guilty of the charges herein considered, is sufficient to support the penalty imposed by the court. Hence, further consideration of this branch of the case is unnecessary.

That the supreme court of the District of Columbia has jurisdiction of contempt proceedings growing out of the disobedience of its lawful orders will be conceded. But it is contended that the court below exceeded its jurisdiction in entering the decree for the disobedience of which the defendants are held in contempt. On appeal, this court modified that decree. It is insisted that the defendants are held for disobedience of those parts of the order of injunction which were, on appeal, eliminated. It is, therefore, urged that, inasmuch as the portions of the decree eliminated were held to be an invasion of the con*576stitutional rights of free speech and a free press, under the 1st Amendment to the Constitution of the United States, the court was therefore without jurisdiction, and the portion of the decree thus eliminated was totally void, and not binding upon these defendants.

On the other hand, it is insisted by counsel for complainant that the court below had jurisdiction to hear and determine the injunction case and enter a decree therein restraining the defendants from continuing the boycott; that, having jurisdiction to enter such a decree, the modification thereof on appeal involved merely the correction of error, and cannot affect the court’s jurisdiction; and that the decree became a final and binding judgment against the defendants, until reversed or modified on appeal.

On this point, we find it unnecessary to express an opinion. As to the specific offenses herein considered, the petition charges a direct violation of those provisions of the original decree which were, on appeal, affirmed and approved by this court. We need not, therefore, consider the effect of the alleged disobedience by the defendants of such parts of the original restraining order as were subsequently eliminated by us; hence, for the purposes of this case, we may dismiss all further reference to the 1st Amendment to the Constitution of the United States.

With great eloquence, counsel urged at bar the high character of the defendants and the distinguished position which they have attained among their fellowmen as matters to be considered by us in reviewing the judgment of the court below. Such an argument might with propriety be addressed to the pardoning power, hut the court should not be biased by such considerations.

We have a deep sense of the far-reaching importance of this case. Three distinguished citizens, leaders in a great cause for the improvement and uplift of their fellow men, with a larger following, propably, than was ever marshaled under single leadership in any philanthropic movement, are at the bar of justice to answer the charge of disobedience of an order of a court of the United States. We are not unmindful of the high *577position which the defendants have attained, but their intelligence forbids any inference or conclusion that the acts charged were committed by them in ignorance of their duty to the courts of their country; hence, that excuse cannot be advanced with convincing force.

The courts are the agencies appointed by the Constitution for dispensing justice and for the orderly adjudication of controversies arising from conflicting interests. There, all must stand upon exact equality. The law knows no distinction. The rich and the poor, the intelligent and the ignorant, irrespective of race or color, are entitled to equal protection, and the scales of justice should be balanced without favor or prejudice. Government, in its most liberal form, is harsh; law is restrictive; but organized government must exist for the preservation of society. Hence, whether just or unjust, correct or incorrect, the mandates of its appointed agencies cannot be subjected to individual disrespect and disobedience. The sole question before us is the guilt or innocence of the defendants. The high distinction which they have attained, the fairness or unfairness of the Buck’s Stove & Range Company and the larger organization to which it belongs, the National Manufacturers’ Association, are not matters to be here considered. Neither are we, as a court of review, permitted to modify or extenuate the extreme penalty imposed. These matters, as we have suggested, may be presented properly to the officer vested with authority to commute or pardon.

Individual interests dwindle into insignificance when compared with the higher principle involved in this cause. The fundamental issue is whether the constitutional agencies of government shall be obeyed or defied. The mere fact that the defendants are the officers of organized labor in America lends importance to the cause and adds to the gravity of the situation, but it should not be permitted to influence the result. If an organization of citizens, however large, may disobey the mandates of the courts, the same reasoning would render them subject to individual defiance. The one has no greater rights *578in the eyes of the law than the other. Both are subject to the law, and neither is above it.

The inherent power of the court to preserve an orderly administration of its affairs, and to enforce its orders and decrees, has always been recognized. In many instances, as in the case at bar, punishment for contempt is the only means by which the court can enforce its lawful decrees. With a proper exercise of this power, the purpose of its creation and organization is made effective: without it, it would become an impotent and a useless adjunct of government. If a citizen, though he may honestly believe that his rights have been invaded, may elect when, and to what extent, he will obey the mandates of the court and the requirements of the law as interpreted by the court, instead of pursuing the orderly course of appeal, not only the courts, but government itself, would become powerless, and society would soon be reduced to a state of anarchy.

The judgment is affirmed with costs, and it is so ordered.

Affirmed.

concurring:

I concur in the opinion and conclusion of Mr. Justice Van Orsdel, and desire to add but a word on one point. The contention is put foi'ward that the opinion of the learned justice who awarded sentence below should be considered here, and that, if it. is, it will appear therefrom that the finding of guilt and the fixing of punishment were based upon conduct of the defendants antecedent to the issuance of the restraining order. • I agree with Mr. Justice Van Orsdel that we are not at liberty to consider that opinion on this appeal. Assuming, however, that it is properly before us, it seems to me clear that, unless it is given a forced and unreasonable construction, it will not sustain the above contention.

After a recital of acts tending to show predetermination to violate the injunction, the learned justice below said: “Having-in mind what may be in the foregoing delineation which indicates that either of the three respondents did, before the issu*579anee of the injunction, deliberately determine to wilfully violate it, and did counsel others to do the same, let us now turn to their sayings and doings since the decision of Mr. Justice Gould was formally announced and the order of injunction itself put into technical operation by the giving of the injunction bond.”

This language, to my mind, conclusively shows that the con-' duct of the defendants antedating the injunction was considered only on the question of intent, which the court was entirely justified in doing. To hold otherwise would be to convict the court of ignorance of the law in holding the defendants guilty of violating an injunction long before it was issued.

dissenting:

I am unable to concur in affirming the decree appealed from for reasons which I shall state as briefly as I can.

1. As regards the conclusion that this proceeding must be regarded as criminal solely, and, in consequence, that the evidence upon which the conviction rests cannot be considered, because not presented in a bill of exceptions reserved on the hearing, I will content myself with saying that I am not clearly convinced that it must be so regarded. The complaint was made by the complainant, on whose behalf the injunction had been granted, and for its own redress. No fine was imposed on behalf of the United States. The relief sought in the original bill was not pecuniary. The punishment by imprisonment for disobedience of the writ was the only way in which the relief sought could be secured. For these reasons, the proceeding might well be regarded as ancillary to the main suit, the order as one entered in execution of the decree made therein, and therefore, the evidence might not only be taken, but considered also in accordance with the practice in equity cases, notwithstanding the fact that the language contained in the opinion of the trial justice and the unusual severity of his sentence indicated that he regarded the proceeding as punitory, and not remedial.

2. Assuming that the proceeding'is criminal in its nature, *580there being no bill of exceptions, the presumption follows that the allegations of the complaint found to be true were supported by satisfactory evidence. Whether the record of complaint and decree upon which the case has been considered may be supplemented by the opinion of the court, filed in the cause and made a part of the record, is a question that will be considered later.

The complaint consists of twenty-six paragraphs. It has been ordered to be printed in the report of the case, and need not be repeated or summarized. An examination of it will show that the first fifteen paragraphs charge conduct and language used by respondents in public meetings, long antedating the commencement of the original suit; some occurring in the year 1897, and long before any controversy had arisen. The sixteenth paragraph is the first that charges any act subsequent to the order for the injunction, and in disobedience thereof. The 'order was announced December 17th, 1907, and entered on December 18th, directing the injunction to issue upon the execution of a bond in the usual form by the complainant. The order was to the effect that the injunction “shall be in full force, obligatory and binding upon the defendants,” etc., provided the complainant shall first execute the necessary bond. This order was in compliance with equity rule 42, of the supreme court of the District of Columbia, which makes the execution and approval of the bond a “precedent condition.”

This bond was not given until December 23. The specific charge is that, after the granting of the order, and before the giving of the bond, the respondents Grompers and Morrison hastened to deposit in the mails the already-printed January number of the American Federationist, which contained the publication of complainant’s name in the “Unfair” list. It is not charged that any subsequent issue of the journal contained a similar publication. Some general allegations respecting the circulation of the January number of the Journal are too vague to form the foundation of a criminal charge and conviction. The gist of the charge is this “rushing” of the journal in the mails between December 17th and 23d. The decree con*581victing the respondents cannot be supported on this charge, because the order for the injunction did not become operative and effective before compliance with the precedent condition.

In the earlier equity practice an injunction was issued without bond, and was, therefore, effective from the moment of granting the order. In such case, if an injunction was improvidently granted, the defendant had no redress for the injuries he might sustain thereby. To remedy the great mischief resulting from this practice, courts of equity began to require bonds when, in their discretion, it seemed just to do so. But modern statutes, and rules of court authorized by statute, have, in general, gone much farther and required bonds as conditions precedent to the taking effect of the order. Equity rule 42 is one of these. Adopted by express authority of Congress, it has all the force of a statute. Until the bond be given, the order for the injunction is clearly inoperative, without effect or obligation. This has been held by the court which promulgated the rule. Lamon v. McKee, 7 Mackey, 446.

This question was reconsidered by this court in a recent case and the same conclusion reached. Drew v. Hogan, 26 App. D. C. 55—62, 6 A. & E. Ann. Cas. 589. Similar statutes and rules have received the same construction throughout the country. Clarke v. Hoomes, 2 Hen. & M. 23; Winslow v. Nayson, 113 Mass. 411-421; Diehl v. Friester, 37 Ohio St. 473; Elliott v. Osborne, 1 Cal. 396; State ex rel. Bradford v. Rush County, 35 Kan. 150—155, 10 Pac. 535; State ex rel. Wilson v. Kearny County, 42 Kan. 739—748, 22 Pac. 735; Van Fleet v. Stout, 44 Kan. 523, 525, 24 Pac. 960; Pell v. Lander, 8 B. Mon. 554, 556; Davis v. Dixon, 1 How. (Miss.) 64-67, 26 Am. Dec. 695 ; State ex rel. Downing v. Greene, 48 Neb. 327-332, 67 N. W. 162; Marlatt v. Perrine, 17 N. J. Eq. 49—51; Lawton v. Richardson, 115 Mich. 12, 72 N. W. 988; Carpenter v. Keating, 10 Abb. Pr. N. S. 223.

3. Coming now to the remaining paragraphs, excepting that relating to the respondent John Mitchell, I find that they contain references to the effect of the injunction, in an “urgent appeal” to the friends of the labor organization to aid with *582funds in the prosecution of an appeal from the order, as well as declarations in speeches made in public meetings. In the view of my brethren, these show an express contempt of ;the court granting the injunction, as well as an attempt to incite others to disobey it. There is no allegation that any act enforcing the boycott which had been enjoined has been committed by the respondents or any of their adherents. So far as it was declared that the injunction did not compel anyone to purchase the goods of the complainant, the declaration was the statement of a fact. The language used was in bad taste, under all the circumstances, but seems to have been directed to the assertion of the right of free speech and free publication for which the respondents were then and are now contending. Had these publications and speeches been followed by acts renewing or continuing the boycott, as that had been defined by this court, I grant that they might have been considered as circumstances, among others, tending to show that they were intended to incite others to disobey the injunction. That they were not so regarded by those so completely under the influence of the respondents affords some inference that they were not so intended.

The last paragraph (26) is so general and vague that it cannot form a sufficient foundation for a judgment of conviction of crime. It seems to be the statement of a general conclusion from the facts previously charged, in the nature of a general conclusion of an ordinary common-law indictment.

4. In the opinion of the majority of the court it is substantially conceded that some of the charges in the complaint of which respondents were found guilty do not show anything done in disobedience of the writ. They say: “In addition to finding the defendants guilty of the foregoing offenses as charged, they were also found guilty of numerous other offenses charged in the petition. Since, however, the finding of guilt on the counts or charges above considered is sufficient to support the judgment of the court, and the penalty imposed is not greater than could have been inflicted had they constituted the only offenses charged, it will not be necessary to consider the other offenses charged in the petition of which the defendants were found *583guilty. In a criminal proceeding where the accused is found guilty as charged under an indictment containing numerous counts, the judgment will not be reversed; though some of the counts are bad, if the good ones are sufficient to support the judgment.”

Assuming the analogy between the two cases as stated, the general doctrine is in accordance with the law as laid down by the Supreme Court of the United States in Claassen v. United States, 142 U. S. 140-146, 35 L. ed. 966-968, 12 Sup. Ct. Rep. 169, and other cases. But the presumption of law that, in such a case, the sentence was on the good count solely, can only be indulged “in the absence of anything in the record to show the contrary.” It is very clear that the presumption cannot be indulged if we can be permitted to consider the opinion of the learned justice who awarded the sentence. That opinion has been made a part of the transcript in accordance with paragraph F, rule 5, of this court, and is found in the printed record, of which it fills fifty-four pages. It undertakes a recital of all the facts found, under two heads entitled as follows : “Conditions anteceding the injunction,” and “Since the injunction.” The statement of antecedent conditions covers thirty-one of the fifty-four pages. This opinion shows conclusively that the finding of guilt and the extreme severity of the punishment were based upon the antecedent conduct and declarations of the defendants, as well as upon those in the paragraphs or counts aforesaid. In my judgment, justice demands that this opinion be considered as what it is; namely, the special findings of fact on which the decree is founded and by which it must he tested.

5. The complaint states one specific charge of violation of the injunction by the respondent Mitchell alone; namely, his presiding over and participating in a meeting of the United Mine Workers of America in Indianapolis, on June 25th, 1908, and approving a resolution then and there adopted reciting the controversy between the complainant and “.Organized Labor,” and imposing a fine of $5 upon any member who shall thereafter purchase a stove of complainant’s manufacture. This was an *584act violating both the original and the. modified decree for injunction that was then in force. It appears, however, from the findings of fact in the opinion aforesaid, relating to the defendant Mitchell, that the court took into consideration certain other acts and declarations of said Mitchell. These comprise statements made in a book published by him in 1903, declarations in a speech made before the National Civic Federation, December 13, 1906, to the effect that, if a court should “enjoin him from doing something he had a legal, constitutional, and moral right to do, he would violate the injunction,” and his affixing his signature to the “urgent appeal” before mentioned.

"When we consider the severity of the sentence of Mitchell, I think it impossible to say that it was not founded in part upon the foregoing declarations, which long antedated the controversy with the complainant.

Upon the ■ assumption that each and all of the defendants committed some acts in violation of the injunction, both as originally issued and as modified on appeal, I am of the opinion that the decree should be reversed and the case remanded for trial upon evidence confined to the real question involved.

6. There is another and stronger reason for my dissent so far as the respondents Gompers and Morrison are involved. The specific acts charged against them relate wholly to declarations and publications which violated the preliminary injunction as issued. I have heretofore' expressed the opinion that so much of the injunction order was null and void because opposed to the constitutional prohibition of any abridgment of the freedom of speech or of the press. (33 App. D. O. p. 129.) Subsequent reflection has confirmed the views then expressed. I concede that the court had jurisdiction of the subject-matter of the controversy and of the parties, but I cannot agree that a decree rendered in excess of the power of the court — a power limited by express provision of the Constitution — is merely erroneous, and not absolutely void. That proposition is met and conclusively disposed of by Mr. Justice Miller in Ex parte Lange, 18 Wall. 163-175, 21 L. ed. 872-878. I quote therefrom as follows: “But it has been said that, conceding all this, *585the judgment under which the prisoner is now held is erroneous, but not void; and, as this court cannot review that judgment for error, it can discharge the prisoner only when it is void. But we do not concede the major premise in this argument. A judgment may be erroneous, and not void, and it may be erroneous because it is void. The distinctions between void and merely voidable judgments are very nice, and they fall under the one class or the other as they are regarded for different purposes. * * * It is no answer to this to say that the court had jurisdiction of the person of the prisoner, and of the offense under the statute. It by no means follows that these two facts make valid, however, erroneous it may be, any judgment the court may render in such case.”

In a later case, the same justice said: “When, however, a court of the United States undertakes, by its process of contempt, to punish a man for refusing to comply with an order which that court had no authority to make, the order itself, being without jurisdiction, is void, and the order punishing for the contempt is equally void.” Ex parte Fisk, 113 U. S. 713-718, 28 L. ed. 1117—1119, 5 Sup. Ct. Rep. 724. To the same effect are In Re Snow, 120 U. S. 274-285, 30 L. ed. 658-662, 7 Sup. Ct. Rep: 556; Re Ayers, 123 U. S. 443-485, 31 L. ed. 216-223, Sup. Ct. Rep. 164; Re Nielsen, 131 U.S. 176-183, 33 L. ed. 118-120, 9 Sup. Ct. Bep. 672; Windsor v. McVeigh, 93 U. S. 274, 283, 23 L. ed. 914, 917.

In Nielsen's Case, Mr. Justice Bradley stated the rule here contended for as follows: “It is difficult to see why a conviction and punishment under an unconstitutional law is more violative of a person’s constitutional rights than an unconstitutional conviction and punishment under a valid law. In the first case, it is true, the court has no authority to take cognizance of the case; but, in the other, it has no authority to render judgment against the defendant. This was the case of Ex parte Lange, where the court had authority to hear and determine the ease, but we held that it had no authority to give the judgment ‘ it did. It was the same in the case of Snow; the court had authority over the case, but we held that it had no authority to *586give judgment against tbe prisoner. He was protected by a constitutional provision, securing to him a fundamental right. It was not a case of mere error in law, but a case of denying to a person a constitutional right.” See also Re Frederick, 149 U. S. 70-76, 37 L. ed. 653-656, 13 Sup. Ct. Rep. 793; Re Bonner, 151 U. S. 242-256, 38 L. ed. 149-151, 14 Sup. Ct. Rep. 323.

Convinced that the court was without authority to make the only order which the defendants Gompers and Morrison can be said to have disobeyed, I can have no other opinion than othat the decree should be reversed.

A petition by the appellants to the Supreme Court of the United States for the issuance to this court of the writ of certiorari removing the cause to that court for review, was granted December 9, 1909.