Ex parte National Ass'n for Advancement of Colored People, 3 Div. 779

• Decision Date: 06 December 1956
• Docket Number: 3 Div. 779
• Citation: 91 So.2d 214,265 Ala. 349
• Court: Alabama Supreme Court
• Parties: Ex parte NATIONAL ASSOCIATION FOR the ADVANCEMENT OF COLORED PEOPLE, a Corporation. In Re: The STATE of Alabama ex rel. John PATTERSON, as Attorney General of the State of Alabama. v. NATIONAL ASSOCIATION FOR the ADVANCEMENT OF COLORED PEOPLE, a Corporation.

Page 214

91 So.2d 214

265 Ala. 349

Ex parte NATIONAL ASSOCIATION FOR the ADVANCEMENT OF COLORED PEOPLE, a CorporationIn Re: The STATE of Alabama ex rel. John PATTERSON, as Attorney General of the State of Alabama. v.NATIONAL ASSOCIATION FOR the ADVANCEMENT OF COLORED PEOPLE, a Corporation.

3 Div. 779.

Supreme Court of Alabama.

Dec. 6, 1956.

Arthur D. Shores, Birmingham, Fred D. Gray, Montgomery, and Robt.L. Carter, New York City, for petitioner.

John Patterson, Atty. Gen., for respondent.

PER CURIAM.

The Circuit Court ordered the petitioner to bring certain books, documents and papers into court on a certain date for inspection by the State of Alabama in a cause filed by the Attorney General on behalf of the State against the petitioner.On the date set to produce, the court granted the petitioner eight additional days within which to comply with its order.

Thereafter the court offered the petitioner additional time to produce the documents.In reply to the court's offer to grant additional time, counsel for petitioner stated in open court that additional time would not be required, that the petitioner would not produce the books, documents, and papers as ordered by the court and that it elected to stand on its decision not to bring the papers into court for inspection by the State.

As a result of petitioner's brazen defiance of the order of the court, the petitioner was adjudged in contempt of court and fined $10,000.The decree provided that in the event the petitioner failed to comply fully with the order to produce within five days from that date that the fine for contempt would be raised to $100,000.

On the last day that petitioner had to comply with the court's order or suffer the fine to be raised for refusing to comply, the petitioner offered to bring some of the documents into court, but refused to fully comply with the order to produce.This offer of partial compliance by the petitioner was not accepted by the court.Thereafter the court decreed that the fine be raised as indicated above.

This petition for writ of certiorari presents the single question, viz.: The legality vel non of the order of contempt.

The ultimate aim and purpose of the litigation is to determine the right of the state to enjoin petitioners from doing business in Alabama.That question, however, is not before us in this proceeding.

On the petition for certiorari the sole and only reviewable order or decree is that which adjudges the petitioner to be in contempt.Certiorari cannot be made a substitute for an appeal or other method of review.Certiorari lies to review an order or judgment of contempt for the reason that there is no other method of review in such a case.Ex parte Dickens, 162 Ala. 272, 50 So. 218, 220.Review on certiorari is limited to those questions of law which go to the validity of the order or judgment of contempt, among which are the jurisdiction of the court, its authority to make the decree or order, violation of which resulted in the judgment of contempt.It is only where the court lacked jurisdiction of the proceeding, or where on the face of it the order disobeyed was void, or where procedural requirements with respect to citation for contempt and the like were not observed, or where the fact of contempt is not sustained, that the order or judgment will be quashed.

It is well to remember that 'a proceeding for contempt is not a part of the main case, before the court, but is collateral to it, a proceeding in itself.'Ex parte Dickens, supra.In the process of the trial in the main case there are ample remedies for review.Appeal lies from interlocutory decrees, such as those on demurrer to the bill, orders granting, or refusing temporary injunctions, orders sustaining or denying motions to dissolve or discharge.Tit. 7, §§ 754,1057, Code of 1940.

An order requiring defendant to produce evidence in a pending cause may be reviewed on petition for mandamus.Ex parte Hart, 240 Ala. 642, 200 So. 783.Hence, if petitioner felt itself aggrieved by the order requiring it to produce certain evidence, it should have sought to have the order reviewed by mandamus.Where a party to a cause elects not to avail of such remedies to test the validity of an order requiring him to do or refrain from doing a certain act and simply ignores or openly declines to obey the order of the court, he necessarily assumes the consequences of his defiance, and is remitted to the lone hope of having the reviewing court find and declare the order of contempt void on its face.That is the status of petitioner here.

Here we do not have before us a decree on the equity of the bill, or a final decree granting relief to complainant, or, in fact, the decree granting a temporary injunction.All that we have presented to us is the order adjudging the petitioner to be in contempt, and as we will show that order is well sustained.

So, were the sanctions imposed upon petitioner for its willful contempt committed in the presence of the court within the court's lawful authority?We will first inquire whether the contempt in the instant case is in its nature civil or criminal.

We approved the following definition of a civil contempt in Ex parte Dickens, supra:

"A 'civil contempt' consists in failing to do something, ordered to be done by a court in a civil action, for the benefit of the opposing party therein."162 Ala. 276, 50 So. 220.

The distinction between civil and criminal contempts is thus stated in 12 Am.Jur., Contempt, § 6, p. 392:

'Criminal contempt proceedings are those brought to preserve the power and vindicate the dignity of the court and to punish for disobedience of its orders.Civil contempt proceedings are those instituted to preserve and enforce the rights of private parties to suits and to compel obedience to orders and decrees made for the benefit of such parties.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 interested in their conduct and prosecution are those individuals for the enforcement of whose private rights and remedies the suits were instituted.'

Criminal and civil contempts are defined in 17 C.J.S., Contempt, §§ 5 and 6, pp. 7, 8, to be as follows:

'A criminal contempt is conduct that is directed against the dignity and authority of the court, or a judge acting judicially; it is an act obstructing the administration of justice which tends to bring the court into disrepute or disrespect.

* * *

* * *

'Civil contempt consists in failing to do something ordered to be done by a court in a civil action for the benefit of the opposing party therein, and is, therefore, an offense against the party in whose behalf the violated order is made.If, however, the contempt consists in doing a forbidden act, injurious to the opposite party, the contempt may be considered criminal.'

We indicated our approval of both of the above quotations in Ex parte King, 263 Ala. 487, 491, 83 So.2d 241, 245.

We held the contempt to be criminal in the King case, 263 Ala. at page 490, 83 So.2d at page 245 because it was "* * * punishment for what has been done, and it committed petitioner to jail for a definite period of time."We further stated, 263 Ala. at page 491, 83 So.2d at page 245, 'It seems to us that the penalty is for past disobedience rather than to compel obedience.'Ex parte King, supra.

We also held the contempt to be criminal in Ex parte Hill, 229 Ala. 501, 158 So. 531, for the same reasons.

The petitioner insists that its contempt was criminal because the trial court used the word punishment in the decree.The Supreme Court in United States v. United Mine Workers of America, 330 U.S. 258, 297, note 64, 67 S.Ct. 677, 698, 91 L.Ed. 884, speaking of the use of the word punishment as indicating the type of contempt said: "punishment' has been said to be the magic word indicating a proceeding in criminal, rather than civil, contempt.* * * But 'punishment' as used in contempt cases is ambiguous.'It is not the fact of punishment, but rather its character and purpose * * *.'Gompers v. Bucks Stove & Range Co., 1911, 221 U.S. 418, 441, 31 S.Ct. 492, 498, 55 L.Ed. 797.'There were two fines in the United Mine Workers of America case.The fine assessed for past contumacy was held to be for criminal contempt; and the fine to coerce the union into future compliance with the court's order was held to be for civil contempt.

In the light of these principles it is clear to us that the fines in the instant case were for civil contempt.The decree adjudging the $10,000 fine said:

'Ordered, adjudged and decreed further that in the event the respondent fully complies with the court's order to produce within five days from this date, then it may move to have this fine reduced or set aside.However, in the event the respondent fails to comply fully with the order to produce within five days from this date, then it is ordered, adjudged and decreed that the fine for this contempt be $100,000.00.'(Emphasis supplied.)

The $10,000 fine was coercive because it gave the petitioner a right to have the fine set...