State Ex Rel. Cont'l Coal Co. v. Bittner

• Citation: 102 W.Va. 677
• Decision Date: 14 December 1926
• Docket Number: (No. 5509)
• Court: Supreme Court of West Virginia
• Parties: State ex rel. Continental Coal Company v. Van A. Bittner

102 W.Va. 677

State ex rel. Continental Coal Company

v.Van A. Bittner

(No. 5509)

Supreme Court of Appeals of West Virginia.

Submitted November 16;, 1926.

Decided December 14, 1926.

1. Contempt Section 4, Chap. 160, Code, Relating to Review

by Writ of Error to Judgment in Contempt for Disobedience to Lawful Order or Decree, When Read in Pari Materia With Sec. 3, Art. 8, Constitution and Sec. 135, Code, Does Not Preclude Review of Judgments in Criminal Contempt by Writ of Error, Where Freedom Involved. Section 4, Chap. 160, Code, relating to review by writ of error to judgment in contempt for disobedience to a lawful order or decree, when read in pari materia with Sec. 3, Art. 8, Constitution, and Sec. 1, Chap. 135, Code, does not preclude review of judgments in criminal contempt by writ of error, where freedom is involved, (p. 684.)

2. Same Trial for Criminal Contempt is Quasi Criminal Pro-

ceeding, and Rules of Evidence in Criminal Trials Apply Thereto. In Such Trial Guilt of Accused Must be Proved Beyond Reasonable Doubt.

A trial for criminal contempt is a quasi criminal proceeding, and the rules of evidence in criminal trials apply thereto. In such trial the guilt of the accused muse be proved beyond reasonable doubt, (p. 689.)

3. Same Under Paragraph 4 of Sec. 27, Chap. 147, Code, Cir-

cuit Court Has Power to Punish Summarily, Without Trial by Jury, as for Contempt, Any Person Who Has Disobeyed or Resisted Lawful Decree or Order of That Court. Under paragraph 4 of Sec. 27, Chap. 147, Code, a circuit court has power to punish summarily, without trial by jury, as for a contempt, any person who has disobeyed or resisted a lawful decree or order of that court, (p. 686.)

Error to Circuit Court, Monongalia County.

Proceeding for contempt of court, State ex rel. Continental Coal Company against Van A. Bittner. Judgment for plaintiff, defendant brings error.

Reversed and remanded.

Eugene H. Long and T. C. Townsend, for plaintiff in error. E. M. Showalter and C. A. Goodwin, for defendant in error.

Lively, Judge:

This writ is to review the judgment and sentence of the circuit court pronounced on the 11th day of June, 1925, in which Van A. Bittner, plaintiff in error, was adjudged to be in contempt of the court in that he did not perform or obey an injunction lawfully issued by that court. He was fined $500.00 and costs, and ordered to be confined in jail for six months.

In the early part of 1925 a strike of the United Mine Workers was in progress. Van A. Bittner as chief representative of the United Mine Workers of America in Northern West Virginia, had issued an official call for the strike on March 13, 1925, directed to all miners working in the non-union mines of Northern West Virginia, and was in active conduct of an organization campaign at the non-union mines in that part of the State. The strike was to be effective as of April 1, 1925. The Continental Coal Company was operating a non-union coal mine on Scotts Run in Monongalia County, about 28 miles from the City of Fairmont in Marion County; and filed its bill in the Circuit Court of Monongalia County against the officers of the United Mine Workers and various other persons as members, agents and representatives, including Van A. Bittner, and against various local unions affiliated with the United Mine Workers of America, in which it charges, among other things, that defendants have entered into an unlawful conspiracy to prevent complainant from operating its mines, and to that end some of them in pursuance of the conspiracy have been threatening, coercing and intimidating its employees by various means therein stated from working for complainant at its mines; that they have made inflammatory speeches and congregated in great numbers in and around the mines, and by threats to kill, have caused a number of its employees to quit work, and that by such methods all of its employees will cease to labor for complainant, to its irreparable loss and total ruin, unless defendants are restrained from so doing. Numbers of individual and specific instances of threats and intimidation against complainant's employees are recited. It would be useless to de-

102 w. Va. tail all of the unlawful acts charged against defendants, all in pursuance of the conspiracy to ruin complainant, set out in the bill.

An injunction was issued upon the bill on April 27, 1925, prohibiting the defendants and each of them and all other persons confederating, combining and conspiring with them from in any manner or way whatsoever, by use of threats of personal injury or violence, from interfering with complainant 's employees, or those seeking employment with it, or by enticement or persuasion causing them to leave complainant's service, or preventing others from entering its service, aiding or encouraging any person in the performance of said unlawful acts or doing anything whatever in furtherance of the conspiracy or combination to ruin complainant; or in any manner aiding or abetting any person in the commission of said unlawful acts, or from entering plaintiff's premises, or injuring or destroying its property, or from taking any steps whatever to unionize the mine by means of threats, menaces, intimidation, force or violence, or in any way interfering with the contracts existing between complainant and its employees. This is the substance of the injunction order.

It appears that there had been "marches" in the near vicinity of complainant's mines at the hours when its employees came to their labors in the mines, said "marches" being composed of two or three hundred persons; and it further appears that the mines were picketed. These marches and the picketing had begun when the injunction was granted, and continued almost daily until about the 8th of May following, when they ceased upon issuance of citations or rules in contempt issued and served.

On May 3, 1925, while this condition at plaintiff's mines existed, Van A. Bittner made a public address to about 1500 union miners and others in the City of Fairmont, about twenty-eight miles from complainant's mines. His language in that address is the basis of this proceeding against him. On the following day Bittner went to the City of Wheeling to answer contempt proceedings against him pending in the United States District Court. On May 18th, a rule in con- tempt was issued by the Circuit Court of Monongalia County against him, to which he appeared on May 27th and entered into a recognizance for his later appearance, and on June 19th, he appeared and answered the rule. Evidence was then taken, and the judgment and sentence above set out was rendered on the following day.

The language used by Bittner in the public address, as testified to by several persons who took notes of what was said during the progress of the address, is:

''Judge Lazelle in Monongalia county has granted an injunction. I say this to Judge Lazelle and every other judge in the state and nation, they can issue as many infernal injunctions as they please and whenever they interfere with our lawful rights we will disobey them. I realize all I say and the bearing it has as I am now in the federal court for disobeying an injunction. Well all I can say to Judge Baker is this, all the infernal injunctions he can issue can't break the United Mine Workers of America. The United Mine Workers of America will be prosperous here when the injunction of December 23, 1923, is rotting before God. My mother and wife and little girl don't want to see me in jail. But they would rather see me in jail than cowing down before some Judge. So if Judge Baker wants to send me to jail next Tuesday, all right. What insolence is there in official robes that would send a man to jail for violating an injunction!"

Senator R. A. Pollock testified that Bittner said in the course of his speech that he (Bittner) expected every fellow to get out in the line and do his duty or he would not get his benefits. A fairly full report of the speech was printed in the public press the following day. The speech shows an intimate knowledge of the local happenings in relation to the strike and the activities of those opposed to it. It was in furtherance of the strike, and tended to stir up a bitter feeling.

Bittner's answer to the rule admits the pendency of the chancery bill and the issuance of the injunction; admits that he is a member of the miners' organization and its representa- tive; but he denies having entered into the conspiracy to destroy property and business of complainant as charged; denies that he aided, counselled or abetted the unlawful acts alleged to have been committed by members of his organization; admits that he made the public address on May 3rd to a large audience in Fairmont, but denies that he therein advised any one to disobey injunctions in general or this one in particular; denies that he had any knowledge of this particular injunction, and denies the use of the language attributed to him above set out; and denies that he ever intentionally violated the injunction.

The parties went to proof. The bill and injunction were introduced in evidence. The injunction order was served on Toney Teti, designated in the bill as Board Member of District No. 17, United Mine Workers of America (said District No. 17 includes W. Va.), on James McCleary, Vice President of Sub-district No. 4, and upon James L. Studdard, President of Sub-district No. 4, and also upon Charles F. Davis, International Representative of the U. M. W. of A., and its financial agent for Northern West Virginia, on April 30, 1925; and upon Bittner on May 4th and 5th, 1925.

The evidence shows that between April 1st and the time of the issuance of the injunction order on April 27, 1925, a body of men ranging from 100 to 250 in number congregated at plaintiff's mine on Scotts Run in the mornings when its employees came to work, and by threats and intimidation scared the employees so that many of them quit wTork and the employment. Fifty-six...