Fiedler v. Bambrick Bros. Const. Co.

• Decision Date: 09 January 1912
• Citation: 162 Mo. App. 528,142 S.W. 1111
• Parties: FIEDLER et al. v. BAMBRICK BROS. CONST. CO.
• Court: Missouri Court of Appeals

142 S.W. 1111

162 Mo. App. 528

FIEDLER et al. v. BAMBRICK BROS. CONST. CO.

St. Louis Court of Appeals. Missouri.

January 9, 1912.

1. INJUNCTION (§ 230) — DISOBEDIENCE — CONTEMPT—NATURE OF PROCEEDINGS.

The violation of an injunction is a constructive or civil, as distinguished from a criminal, contempt, and a proceeding for its punishment is ancillary to the cause in which the injunction was issued.

2. INJUNCTION (§ 232) — CONTEMPT — PUNISHMENT—CIVIL CONTEMPT.

The violation of an injunction may be punished by fine or imprisonment of the contemner.

3. INJUNCTION (§ 230) — VIOLATION — PUNISHMENT OF CORPORATION—DISCRETION OF TRIAL COURT.

A corporation guilty of civil contempt in violating an injunction cannot escape punishment because the trial court discharged its officers; the discharge of persons, cited for contempt, resting in the discretion of the court.

4. CONTEMPT (§§ 3, 4)—"CIVIL" AND "CRIMINAL CONTEMPT" DISTINGUISHED.

Criminal contempts embrace all acts committed against the majesty of the law, and the primary purpose of their punishment is the vindication of public authority, while a civil contempt is the disobedience of some order or command of court entered in a civil cause.

5. CONTEMPT (§ 30) — POWER TO PUNISH — NATURE OF POWER.

All courts of record, including the Supreme and Appellate Courts, have the inherent power to punish for contempt, which power cannot be curtailed by the Legislature.

6. CONTEMPT (§ 29)—CORPORATIONS—POWER TO PUNISH—STATUTORY PROVISIONS—"DISTRINGAS."

Even in the absence of statutory power, both courts of equity and law may punish corporations for contempt, for while corporations cannot be imprisoned, the punishment for contempt can be enforced just as the appearance of the corporation can be enforced by either writ of supersedeas or distringas, which latter is a writ addressed to the sheriff demanding him to distrain one of his goods and chattels to enforce compliance with an order of court.

7. CONTEMPT (§ 29)—CORPORATIONS—POWER TO PUNISH—STATUTES—"PERSON."

In view of Rev. St. 1909, § 10,160, defining the word "persons" as including a body of persons whether incorporated or not, under sections 2528 and 3881, respectively, providing that if any person disobey an injunction, the circuit court to which it is returned, or any judge in vacation thereof, shall issue an attachment for the contempt, and that every court of record shall have power to punish as for criminal contempt, persons guilty of willful disobedience of any order, the circuit court has power to punish a corporation for civil contempt.

8. INJUNCTION (§ 230)—VIOLATION—ORDER IMPOSING FINE—DISPOSITION OF FINE.

An order imposing a fine upon a corporation for contempt for the violation of an injunction is not a nullity because not providing for the disposition of the fine, for while the fine may either go to the injured party or to the school fund under Const. art. 11, § 8 (Rev. St. 1909, § 11,050), the validity of imposition of the fine is not affected by the failure of the order to direct its disposition.

9. INJUNCTION (§ 231)—VIOLATION—PUNISHMENT—REVIEW.

An order of the circuit court imposing a fine upon a corporation for contempt in violating an injunction made upon a full hearing of the evidence, will not be disturbed on appeal.

Appeal from St. Louis Circuit Court; Jesse A. McDonald, Judge.

Proceeding by Elizabeth Fiedler and others against the Bambrick Bros. Construction Company to punish the latter for contempt. From a judgment imposing a fine, contemner appeals. Affirmed.

Thomas J. Rowe, Thos. J. Rowe, Jr., and Henry Rowe, for appellant. Walther & Muench, for respondents.

REYNOLDS, P. J.

On the 9th of May, 1907, the defendant corporation, appellant here, in a suit in equity instituted in the circuit court of the city of St. Louis, in which it was defendant and respondents plaintiffs, was perpetually enjoined from operating its quarry, located in a designated block in the city of St. Louis, or permitting it to be operated, so as to throw dirt, rocks or stones on any of the described premises of plaintiffs, or from so operating or permitting its quarry to be so operated, as to jar or shake any of the buildings on any of the premises of plaintiffs, or so as to cause them to shake and vibrate, or so as to impair the comfortable use and occupancy of the premises of plaintiffs for dwelling purposes by loud and deafening sounds and explosions in the quarry. Afterwards, on the 22d of September, 1907, two of the plaintiffs in the original suit, filed their verified complaint, entitled in the original suit, wherein they charged that the defendant and John Bambrick, its president, and James Donovan, its superintendent, had violated and disobeyed the injunction of the court, in that on the 21st of September, 1907, they so operated the quarry as to throw large pieces of rock upon the land and improvements of those two plaintiffs, thereby injuring and damaging their property. Citation was duly issued out of the circuit court against and served upon the three defendants to appear in that court and show cause why they should not be punished for contempt in having disobeyed the injunction.

It appears by the statement of counsel for appellant that defendant and its officers had been proceeded against in the same suit on three different occasions for violation of the injunction, the first occasion being in July, 1907, when the defendant company was fined $50. The second was on the 22nd of September, 1907, which is the present proceeding. Under the third, instituted and determined in the circuit court Nov. 11, 1907, and after the present proceeding was instituted, Bambrick, the president of the defendant company, was adjudged in willful contempt of the order of court and committed to jail for a term of five days, the defendant company and Donovan being discharged from that citation. An appeal was taken by Bambrick from that sentence to this court and the judgment of the circuit court affirmed. See Fiedler et al., Respondents, v. Bambrick, Appellant, 135 Mo. App. 301, 115 S. W. 1033.

In the proceeding under the complaint of September 22nd, which is the one now before us, citation having been issued against and served upon the company and upon Bambrick and Donovan, a judgment was entered October 10, 1907, in which after reciting the appearance of the parties and the hearing of the evidence and proof adduced, the court found, "that the defendant, Bambrick Brothers Construction Company, did after having on September 30, 1907, been fined by this court for violating the command of the decree of injunction in this cause, again wilfully disobey and violate said command, and is again in contempt of this court." We are not advised by anything in the record before us as to this previous violation referred to. Thereupon the court assessed a fine of $3,000 and costs against the defendant company and ordered that execution issue therefor. The court further ordered that the individual defendants John Bambrick and James Donovan "be discharged from said citation." From the judgment against it the defendant company appealed to the Supreme Court of this state, claiming, among other things, that in assessing the fine the court had violated section 30, of article 2, of the Constitution of this state, in that it had deprived defendant of its property without due process of law, and that it had violated the provisions of the 14th amendment to the Constitution of the United States, in that defendant by the judgment of the court had been deprived of its property without due process of law and had been denied the equal protection of the law. While the case was pending in the Supreme Court, the defendant abandoned these claims, and on its motion the cause was transferred to this court by the Supreme Court.

In this court defendant makes four points as grounds for reversal of the judgment of the circuit court which we will consider, not in the order as made, but in our own order.

We have read the testimony in the case as presented by the abstract of the learned counsel for appellant. Without setting it out at length, it is sufficient to say that it fully sustains the finding of the learned trial court as to a violation of the terms of the injunction which the court had before then issued in the original case, and to the damage of the respondents. In fact, the learned counsel for appellant does not challenge this.

I. It is argued by those counsel as their third proposition, that a punitive sentence could not be imposed on defendant because the proceedings herein were a part of the original cause in equity. The sole authority cited by them for this is Gompers v. Bucks Stove & Range Co., 221 U. S. 418, 31 Sup. Ct. 492, 55 L. Ed. 797, 34 L. R. A. (N. S.) 874. Counsel misconstrue that opinion, as also what has been here done. This is not a proceeding by the state for the recovery of a fine and infliction of a penalty. The offense was a "constructive" contempt, as that word is defined, not a criminal contempt. See In re Clark, 208 Mo. 121, loc. cit. 139 et seq.; 106 S. W. 990, 15 L. R. A. (N. S.) 389. As is said in the Gompers Case, supra, 221 U. S., loc. cit. 444 et seq., 31 Sup. Ct. 499, 55 L. Ed. 797, 34 L. R. A. (N. S.) 874, and this is quoted by counsel for appellant, so it can be said here, the alleged contempt did not consist in the defendant refusing to do any affirmative act required, "but rather in doing that which had been prohibited. The only possible remedial relief for such disobedience would have been to impose a fine for the use of complainant, measured in some degree by the pecuniary injury caused by the act of disobedience." The main points decided in the Gompers Case are, first, a sentence of imprisonment such as was there imposed, could only stand when the proceeding was in its nature criminal; but that suit in which the only sentence imposed was one of imprisonment, was a civil suit, in which the punishment could...