State Ex Rel. Ben Franklin Coal Co. v. Lewis.

• Decision Date: 28 March 1933
• Docket Number: (No. 7375)
• Citation: 113 W.Va. 529
• Court: West Virginia Supreme Court
• Parties: State ex rel. Ben Franklin Coal Company v. John L. Lewiset al.

113 W.Va. 529

State ex rel. Ben Franklin Coal Company

v.

John L. Lewis

et al.

(No. 7375)

Supreme Court of Appeals of West Virginia.

Submitted February 28. 1933.

Decided March 28. 1933.

1. Contempt

An adjudication of contempt cannot be upheld, where the information or affidavit fails to charge sufficient facts to constitute a contempt. State ex rel. Mineral State Coal Company v. Komar, 113 w. Va. 520, 1(38 s. b. S10, decided contemporaneously herewith.

2. Injunction

In addition to an averment of knowledge on the part of the person sought to be held amenable to the terms of an injunction order, entered in a suit to which he was not made a party or served with process, the information or affidavit must allege facts showing that such person was a servant or agent of, or acted in collusion or combination with, the defendants named therein.

Litz, Judge, absent.

Error to Circuit Court, Marshall County.

Contempt proceedings by the State, on the relation of the Ben Franklin Coal Company, against John L. Lewis and others. To review a judgment adjudging Walter Carte and others in contempt, they bring error.

Reversed and dismissed,

Hinerman, Fitzsimmons & Casey, for plaintiffs in error. James Bcdph, A. L. Hooton and Evans & Evans, for defendant in error Ben Franklin Coal Co.

Woods, Judge:

This writ of error is prosecuted from a judgment of the circuit court of Marshall county adjudging twelve individuals guilty of contempt for violation of an injunction order, entered July 6. 1925, and made permanent March 1. 1930, by which John L. Lewis, individually and as president of United Mine Workers of America, a number of the members of such organization, in both their individual and official capacities, and "all other persons whatsoever and whomsoever," were restrained from unlawfully interfering with the employees of Ben Franklin Coal Company. Inasmuch as the judgment complained of withheld sentence as to eight of the plaintiffs in error, the writ of error must be dismissed as improvidently awarded as to them, leaving Joe Mitzkavage, Mike Nemeth, Nick Metro and Walter Valandi, as the plaintiffs in error herein.

On the 11th day of May, 1932, Ben Franklin Coal Company filed a petition, duly verified by its superintendent, seeking a rule against twenty-two named individuals, including the four plaintiffs in error now before this Court, on the charge that they, and each of them, had, '' contemptuously disobeyed" the foregoing injunction order. The petition, supported by the separate affidavit of the superintendent, after reciting the entry of the injunction order, charged, among other things, that on April 1, 1932, the United Mine Workers of America called a strike at and against petitioner's mine, and, in an effort to prevent petitioner from operating its mine and filling its contracts, established a system of picketing; that up to the time of filing of said petition "a large number of men, members of said United Mine Workers of America * * * together with other persons." had constantly picketed the premises; that the said twenty-two men had confederated and conspired together and with each other and other persons to the petitioner unknown to induce employees to quit their work and to prevent others from going to work; that certain of said pickets, including the four plaintiffs in error, had made assaults upon employees of petitioner on their way to and from the mine, and that each of the several picketers against whom the rule was sought had knowledge of the injunction order, at the time and times of the doing of the unlawful acts set forth in the petition for the rule, and that their attention had been repeatedly called to the injunction by officers of the circuit court.

Is the foregoing sufficient to support a rule? In State ex rel. Mineral State Coal Company v. Komar ct at., 113 W. Va. 526. 168 S. E. 810, decided contemporaneously herewith, we held: "To support an adjudication of contempt the information or affidavit, upon which the rule is issued, must show on its face facts sufficient to constitute the offense." And, since a prosecution for contempt is in the nature of a prosecution for a crime, such affidavit or information should state the acts constituting the offense with as great certainty as is required in criminal proceedings. Slate v. Bittner, 102 W. Va. 677, 136...