Walling v. Crane

• Decision Date: 06 December 1946
• Docket Number: No. 11679.,11679.
• Parties: WALLING, Adm'r of Wage and Hour Div., U. S. Dept. of Labor, v. CRANE et al.
• Court: U.S. Court of Appeals — Fifth Circuit

158 F.2d 80 (1946)

WALLING, Adm'r of Wage and Hour Div., U. S. Dept. of Labor, v. CRANE et al.

No. 11679.

Circuit Court of Appeals, Fifth Circuit.

November 8, 1946.

Rehearing Denied December 6, 1946.

William S. Tyson, Sol., U. S. Dept. of Labor, Morton Liftin, Asst. Sol., U. S. Dept. of Labor, George M. Szabad, Chief Appellate Section, U. S. Dept. of Labor and Frederick U. Reel, Sr. Atty., Dept. of Labor, all of Washington, D. C., Geo. A. Downing, Regional Atty., Wage & Hour Div., James H. Shelton and Daykins B. Stover, Attys., Wage & Hour Div., U. S. Dept. of Labor, all of Atlanta, Ga., for appellant.

Hugh Howell and Hugh Howell, Jr., both of Atlanta, Ga., for appellees. CONTRA.

Before HOLMES, WALLER, and LEE, Circuit Judges.

WALLER, Circuit Judge.

The Administrator of the Wage and Hour Division, United States Department of Labor, procured a consent decree on April 28, 1941, and an injunction in this case against Appellees, as well as a large number of others, enjoining them, generally, against violating any of the provisions of the Fair Labor Standards Act, 29 U.S.C. A. § 201 et seq., and specifically against: (1) Failing to pay their employees the statutory wage; (2) failing to pay overtime for hours worked in excess of forty per week; (3) transporting, offering for transportation, shipping, delivering, or selling goods in commerce which were produced by employees who were not paid the wages or overtime provided by the Act; (4) failing to keep records as provided by the Act.

An affidavit by Brooks B. Patterson, Inspector of the Wage and Hour Division of the Department of Labor, made the 19th day of January, 1945, alleged that from July 1, 1941, to June 30, 1944, Appellees have failed and refused to comply with the judgment of the Court in that:

(1) They have paid their employees who were engaged in, or engaged in the production of goods for, and in processes and occupations necessary to the production of goods for, interstate commerce, wages less than the minimum prescribed by law.

(2) They likewise have failed and refused to pay time and one-half for overtime in excess of the forty-hour workweek.

(3) They have failed to make and keep records of the persons employed, etc., as required by Section 11(c) of the Act.

(4) They have transported, offered for transportation, shipped, delivered, and sold in commerce, and have shipped, delivered, and sold with knowledge that shipment, delivery, and sale thereof in commerce was intended, goods produced by their employees, in the production of which the wage and overtime provisions of the Act were not observed.

Based upon the affidavit of Inspector Patterson, the Administrator filed a petition, in the same cause in which the original injunction was issued, containing essentially the same allegations as did the affidavit of Patterson. In this petition he prayed that a rule to show cause issue for the Appellees, directing them to appear before the Court, at a time to be fixed, to show cause "why they should not be adjudged guilty of contempt of court and punished therefor" and that such punishment be imposed as the Court deems appropriate in the premises.

Appellees, in response, after denying all violations of the injunctive decree, contended, among other things, that the proceeding was in criminal contempt, which the Administrator was without authority to institute. The Court below agreed with that contention and dismissed the petition.

In the conclusions of the lower Court the following considerations were set forth:

(1) That in the light of the decision in Hill v. United States, 300 U.S. 105, 57 S.Ct. 347, 81 L.Ed. 537, such a proceeding by the Administrator is one in which the United States is a party, and Section 385, Title 28 U.S.C.A., instead of Section 387, Title 28 U.S.C.A., is the applicable statute under which the proceedings must be brought.

(2) That the injunctive decree was not rendered for the enforcement of any order of the Administrator.

(3) That the original proceeding, in which the injunctive order was rendered, did not purport to sue for, nor pray for, any relief, or recovery, on behalf of the employees, but only to enjoin the defendants from violating the provisions of the Act, "and such other and further relief as may be necessary and proper."

(4) That the Administrator, in cases of violation of the Act, had two courses open: (1) Procure the United States Attorney to institute criminal proceedings under Section 16(a) of the Act, 29 U.S.C.A. § 216; or (2) file a petition for injunction under Sections 11 and 17 of the Act, 29 U.S.C.A. §§ 211 and 217.

(5) That under Section 17 of the Act, 29 U.S.C.A. § 217, the District Courts of the United States are given jurisdiction to try, and under Section 11, 29 U.S.C.A. § 211, the Administrator is authorized to bring, all actions to restrain violations of the Act.

(6) Any action to recover for liability for wages and overtime under Section 16 (b) could only be brought by employees for themselves and others similarly situated, and the Administrator was not authorized to sue for wages of employees; his weapons of enforcement being suits for injunction and the procurement of criminal proceedings in the name of the United States.

(7) In the original proceeding neither the Administrator nor any employee sought to recover unpaid wages, liquidated damages, or overtime, and therefore, the decree in the injunction proceedings did not, and could not, provide for the recovery of unpaid minimum wages, and did not, and could not, adjudge or determine that any specific amount was due to any employee of Appellees.

(8) That since the Administrator is not authorized to sue for and on behalf of employees for the recovery of unpaid wages and liquidated damages, he cannot do indirectly, and especially by contempt proceedings, that which the statutes denied him the power to do in a direct action, although the Administrator frankly argued at the hearing that he was seeking by this contempt proceeding to compel the Defendants to pay employees wages which he claimed were due them, even though they were not sought, proven, nor decreed in the injunctive order now alleged to have been violated.

(9) That since there was no adjudication in the injunctive decree of any amount due to any employee, and since there was no power in the Administrator to sue for the wages and liquidated damages for any employees, there was, therefore, 64 F.Supp. 90 "no right to any benefit for himself individually or as Administrator or for the employees or anyone else" in the contempt proceeding; that the violation of the injunctive decree was a public wrong and not a private injury to the Administrator or to his authority as Administrator, so as to entitle him to remedial process; that having procured an injunction, its enforcement became "a matter of the assertion of a public right and vindication of the authority of the court" which, under Section 204 (b), 29 U.S.C., must be brought under the authority and direction of the Attorney General.

(10) That the facts in this case point to classification of the acts charged as criminal contempt and "carry the criminal hallmark."

There was no factual issue, and the main question is whether or not the proceeding here is for a civil contempt, as contended by the Administrator, or for a criminal contempt, as contended by the Appellees and as found by the lower Court.

The distinctions between civil and criminal contempts have often been pointed out. See discussion and cases cited in Parker v. United States, 1 Cir., 153 F.2d 66, 163 A.L. R. 379.

Broadly speaking, a civil contempt is a failure of a litigant to do something ordered to be done by a court in a civil action for the benefit of the opposing party therein,¹ but the courts also hold that a contempt is considered civil when the punishment is wholly remedial, serves only the purposes of the complainant, and is not intended chiefly as a deterrent to offenses against the public.² A criminal contempt is an act against the dignity or authority of the court, the majesty of the law,³ and, to use the language of Justice Cardozo, is for the "vindication of the public justice."⁴

Civil contempt is coercive and looks to the future. Criminal contempt punishes a past act, and a contempt which punishes for a past affirmative act is punitive and criminal,⁵ although it is not the punishment that is inflicted, but its purposes, that often determines whether a proceeding in contempt is civil or criminal.⁶ Imprisonment may be had for a civil contempt where the defendant has refused to do an affirmative act required by the provisions of a mandatory order, but if the imprisonment is for an act already accomplished, it would be punitive in its nature and a criminal contempt.⁷

It is noted that the proceeding here is a continuation of the original cause. It is for the enforcement of rights which the Administrator claimed as having been granted to him in the injunction decree. The enforcement power of the Administrator is civil in its nature rather than criminal. He cannot prosecute offenders but can only request prosecution. His functions are, in part, performed on behalf of, but not in right of, employees because he has no authority to sue for wages due an employee without the latter's consent or against his will. The proceeding is remedial in its nature⁸ since the injunction was designed to secure for the Administrator, as well as others, a better enforcement of the Act. The statute authorizing the Administrator to proceed by injunction implies the further right in him to have an appropriate injunction made effective so as to preserve such benefits as were conferred upon him, as complainant, by the injunction.

In the light of the correct statement by the lower Court, that the Administrator had no right to institute proceedings in criminal contempt, and in view of the additional aspects which reveal that this proceeding is between some of the same partie...