Merchants' Stock & Grain Co. v. Board of Trade of City of Chicago

Decision Date24 October 1912
Docket Number3,404.
CourtU.S. Court of Appeals — Eighth Circuit

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Chester H. Krum, of St. Louis, Mo. (Henry S. Priest, of St. Louis Mo., on the brief), for plaintiffs in error.

Henry S. Robbins, of Chicago, Ill. (Martin H. Foss, of Chicago Ill., and Sears Lehmann, of St. Louis, Mo., on the brief), for defendants in error.

Before SANBORN, HOOK, and SMITH, Circuit Judges.

SMITH Circuit Judge.

This case was heretofore submitted and decided by this court. Merchants' Stock & Grain Co. et al. v. Board of Trade et al., 187 F. 398, 109 C.C.A. 230. The Supreme Court of the United States having held in Re Merchants' Stock & Grain Co., 223 U.S. 639, 32 Sup.Ct. 339, 56 L.Ed. 584, that the contempt here in question was criminal as distinguished from civil, the case was ordered reargued, and has been again submitted.

The board of trade of the city of Chicago brought suit against the Merchants' Stock & Grain Company, Francis J. Miner, Patrick A. Stephens, and numerous other defendants to enjoin them temporarily and perpetually from receiving, using, selling, or distributing, directly or indirectly, the quotations of complainant or any of them, and from having and obtaining or permitting any telegraph or other wire running into or through its, his, or their offices over which said quotations are passing until they shall have lawfully acquired the right from complainant or some telegraph company authorized by complainant to distribute quotations. November 3, 1909, a preliminary injunction was ordered issued upon complainant giving bond in the sum of $5,000. The following day, the bond having been given, a temporary writ of injunction issued substantially as prayed in accordance with the ruling in Board of Trade v. Christie Grain & Stock Co., 198 U.S. 236, 25 Sup.Ct. 637, 49 L.Ed. 1031, Board of Trade v. Cella Commission Co., 145 F. 28, 76 C.C.A. 28, and McDearmott Commission Co. v. Board of Trade, 146 F. 961, 77 C.C.A. 479, 7 L.R.A. (N.S.) 889, 8 Ann.Cas. 759. The writ was served by the marshal on November 5, 1909, on the Merchants' Stock & Grain Company, and on Patrick A. Stephens, its chief telegraph operator, and on November 11th on Francis J. Miner, president and general manager of the company. On December 22, 1909, an information in contempt was filed in the civil suit against the Merchants' Stock & Grain Company, Francis J. Miner, Patrick A. Stephens, and others. The testimony was taken before a special examiner, who, as directed, reported the evidence without making any rulings on the admissibility thereof, or any findings of fact or conclusions of law. The court heard the matter upon his report, and some additional evidence, and adjudged the Merchants' Stock & Grain Company, Francis J. Miner, and Patrick A. Stephens guilty of contempt, fined them, and directed that three-fourths of the fine be paid to the complainants and one-fourth to the government.

The specifications of error are substantially:

First to third: That the trial court erred in appointing Robert M. Fulton examiner, and directing the testimony to be taken before him, and requiring the defendants to appear before the examiner and submit to the taking of testimony, and in refusing to vacate said order on motion of defendants, and in refusing the defendants a hearing upon the case on evidence adduced in open court.

Fourth to ninth and fourteenth to sixteenth assail the admission of certain evidence.

Tenth to the twelfth assail the findings of defendants' guilt.

Seventeenth alleges that there was no evidence of guilt.

Thirteenth is that the court erred in apportioning the fine between complainant and the government.

Eighteenth asserts that there is no sufficient finding of facts made by the judgment.

'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 to 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 later 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 remedies they were instituted to protect or enforce. Thompson v. Railroad Co., 48 N.J.Eq. 105, 558, 21 A. 182, Hendryx v. Fitzpatrick (C.C.) 19 F. 810; Ex parte Culliford, 8 Barn. & C. 220; Rex v. Edwards, 9 Barn. & C. 652; People v. Court of Oyer & Terminer, 101 N.Y. 245, 247, 4 N.E. 259, 54 Am.Rep. 691; Phillips v. Welch, 11 Nev. 187, 190; State v. Knight, 3 S.D. 509, 513, 54 N.W. 412, 44 Am.St.Rep. 809; People v. McKane, 78 Hun, 154, 160, 28 N.Y.Supp. 981, 4 Bl.Comm. 285; 7 Am. & Eng.Enc.Law, 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 a party or a 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. ' In re Nevitt, 117 F. 448, 54 C.C.A. 622. This language was quoted by the Supreme Court with approval in Bessette v. W. B. Conkey Co., 194 U.S. 324, 328, 24 Sup.Ct. 665, 48 L.Ed. 997, and the rule was followed by this court in Clay v. Waters, 178 F. 385, 389, 101 C.C.A. 645, 21 Ann.Cas. 897, and in Merchants' Stock & Grain Co. v. Board of Trade, 187 F. 398, 109 C.C.A. 230.

In Bessette v. W. B. Conkey Co., 194 U.S. 324, 24 Sup.Ct. 665, 48 L.Ed. 997, Mr. Justice Brewer said:

'It may not be always easy to classify a particular act as belonging to either one of these two classes. It may partake of the characteristics of both. A significant and generally determinative feature is that the act is by one party to a suit in disobedience of a special order made in behalf of the other. Yet sometimes the disobedience may be of such a character, and in such a manner as to indicate a contempt of the court rather than a disregard of the rights of the adverse party.'

No reason can be assigned why disobedience may not at the same time be of such a character as to indicate a contempt of the court and of all authority and a total disregard of the rights of the adverse party.

The first points made by the plaintiffs in error as before stated are with reference to the appointment of Robert M. Fulton as special examiner to take the testimony, and the refusal to set this order aside. It is contended that, under the authorities, this was a criminal contempt case, and that by its reference to a special examiner they were deprived of the privilege of being confronted with the witnesses against them as provided in the sixth amendment to the federal Constitution, and the question is, Does that provision apply to criminal contempt cases? Closely akin to this question is the one as to whether a criminal contempt case is within the provisions of the fifth amendment to the Constitution.

These two amendments read as follows:

'Art. 5. No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a grand jury, except in cases arising in the land or naval forces, or in the militia, when in actual service in time of war or public danger; nor shall any person be subject for the same offense to be twice put in jeopardy of life or limb; nor shall be compelled in any criminal case to be a witness against himself; nor be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation.'
'Art. 6. In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the state and district wherein the crime shall have been committed, which district shall have been previously ascertained by law, and to be informed of the nature and cause of the accusation; to be confronted with the witnesses against him; to have compulsory process for obtaining witnesses in his favor, and to have the assistance of counsel for his defense.'

Conceding that the term 'criminal contempt' is properly applied to a contempt punished by a punitive as distinguished from a coercive fine arising in an equity case, it does not follow that it is a criminal case within the meaning of the fifth amendment or a criminal prosecution within the meaning of the sixth.

Before entering on the discussion of this question, it seems wise to consider certain cases which involve the question of jurisdiction, because the turning question in them necessarily involves the question of whether contempts are criminal or otherwise, and thus in a measure they bear upon the question as to the rights of a defendant in a criminal contempt case. Anterior to the creation of the Circuit Courts of Appeals, the Supreme Court held it had no jurisdiction by appeal, writ of error, or habeas corpus in criminal contempt cases because of their criminal character. Ex parte Kearney 7 Wheat. 38, 5 L.Ed. 391; New Orleans v. Steamship Co., 20 Wall. 387, 22 L.Ed. 354; Hayes v....

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