Carter v. United States

• Decision Date: 18 May 1943
• Docket Number: No. 10386.,10386.
• Citation: 135 F.2d 858
• Parties: CARTER v. UNITED STATES.
• Court: U.S. Court of Appeals — Fifth Circuit

135 F.2d 858 (1943)

CARTER v. UNITED STATES.

No. 10386.

Circuit Court of Appeals, Fifth Circuit.

April 12, 1943.

On Rehearing May 18, 1943.

Bentley G. Byrnes and Bernard J. Fonseca, both of New Orleans, La., for appellant.

Francis H. Inge, U. S. Atty., of Mobile, Ala., for appellee.

Before SIBLEY, HUTCHESON, and McCORD, Circuit Judges.

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; and the Court attached him. He was sentenced to pay a nominal fine and be imprisoned 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 subject 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...