Opinion
16596, 16597, 16598.
MAY 13, 1949. REHEARING DENIED JUNE 15, 1949.
Injunctions, etc. Before Judge Nichols. Floyd Superior Court. January 7, 1949.
Poole, Pearce Hall, Wright Scoggin, M. G. Hicks, C. T. Culbert, Isadore Katz, and David Joffe, for plaintiffs in error.
Wright, Rogers, Magruder Hoyt, contra.
1. Under the facts of the instant case, the contempts with which the plaintiffs in error were charged, in alleged violations of a temporary restraining order, and for which on conviction they were punished only as provided in Code § 24-2615 (5). were criminal or quasi-criminal contempts as distinguished from civil contempts; and such being their character, they were not satisfied or extinguished by a subsequent agreement between the parties settling the main suit in equity.
2. Nor were the proceedings for contempt, though initiated by the plaintiff in the main case, of such private and civil character that they would not support the judgments for criminal contempt as rendered by the court; nor were such proceedings themselves subject to private agreement and settlement between the parties so as to affect such judgments.
( a) The court did not err in denying the petition for a permanent stay of the judgments for contempt based on the ground that the main suit had been settled.
Nos. 16596, 16597, 16598. MAY 13, 1949. REHEARING DENIED JUNE 15, 1949.
Seven writs of error, all growing out of the same general controversy, are presently before this court for determination. In four of them, to wit: numbers 16,581, 16,582, 16,583, and 16,584, the plaintiffs in error complain of judgments finding them guilty of contempt of court and imposing penalties therefor. In the other three, numbers 16,596, 16,597, and 16,598, error is assigned on the denial of petitions seeking to have such contempt judgments "permanently terminated and stayed," on the alleged ground that the basic controversy was thereafter settled by agreement between the parties. These three cases may be considered and disposed of in one opinion, since they involve identical questions, although brought to this court by different parties plaintiff in error and being different also to some extent on their facts. They will also be considered first, for if the settlement had the effect of terminating the contempt judgments, as contended, such a conclusion would have an important bearing on the disposition that should be made of the other four cases. There are in all, however, 21 plaintiffs in error in each of the two classes of cases, and since there are many facts that are common to all of the 7 cases, this statement is intended to apply in part to each of them.
On October 25, 1948, Celanese Corporation of America, a manufacturing concern employing a large number of persons in Floyd County, filed in the superior court of that county an equitable petition, praying that named defendants, including J. D. Pedigo, C. L. Ross, A. C. Carroll, and H. D. Dodd, individually and as representatives of the Textile Workers Union of America, an unincorporated voluntary association, be temporarily restrained and permanently enjoined from obstructing the road to the plaintiff's manufacturing plant, from mass picketing, from any acts of intimidation or threats, from following any of the plaintiff's employees, and from doing other like acts. (The name of A. C. Carroll does not appear in the transcript of the original petition as sent to this court, but the briefs filed for the plaintiffs in error indicate that he was among the defendants sued, and he is so dealt with in such briefs. See Rules 14, 15, Code, §§ 24-4515, 24-4516. There also appears an entry of service as to him.)
The petition contained among others the following allegations: On August 14, 1948, said unions (referring to the national union named above, and to a local union in Floyd County alleged to have been chartered thereby) and the members thereof went on strike at the plaintiff's plant, and ever since have continued on strike because of failure to agree on the terms of a renewal contract between the plaintiff and said unions. Ever since that time said union has maintained picket lines at said plant, consisting of its various members, including the named defendants, or a large number of them, as well as sympathizers and confederates. The plaintiff during said period of time has not undertaken to operate its plant or plants. Its various salaried employees have, however, come to work, they not being represented by said unions.
Said unions have supported, maintained, and encouraged said strike. On October 20, 1948, the plaintiff sent a written notice to the employees who are on strike or who have ceased to work on account of the strike, advising them that the plant will open for work on October 26, 1948, beginning with certain departments, and that any employees on strike who wish to return to work on terms of the company's last offer would please sign an enclosed card for registration purposes and return it to the company promptly. A self-addressed envelope was enclosed. The written notice further stated that the company will consider itself free to fill the jobs of those who do not indicate a desire to work, and enclosed a summary of a recent National Labor Relations Board decision. When such notice, which was mailed to all employees, was received, the union, through its officers and agents, made an active canvass to get said employees to surrender to it said notices for the purpose of burning or destroying the same. Nevertheless, the plaintiff has received a substantial number of replies indicating a desire of the employees so replying to return to work.
In a radio address to the public and to the employees, made on Sunday, October 24, by J. D. Pedigo, alleged officer of the national association, he exhorted and encouraged said employees not to return to work, and called on union members among the employees to report for picket duty at 5:30 a. m. Tuesday, October 26, 1948. Said Pedigo urged such employees to take this obligation and its responsibility seriously, and even though some of them had found employment during the last few weeks, it was stated by the said Pedigo to be a necessity, in view of the company's announced intention, that all workers report to their picket captains at the picket line at the plaintiff's plant in said county.
The plaintiff's plant is reached by a road that passes in front of said plant and through the property of the plaintiff. The striking employees would aggregate the number of 1200 or 1500 or more, and the intent of said defendant Pedigo, or the necessary effect of his language, is to organize and effectuate mass picketing at the entrance of said plant, and at approaches thereto, thereby obstructing said road and obstructing access to the plant by hourly paid employees or others who might wish to return to work or otherwise desire to enter said plant. Mass. picketing is specifically prohibited by the laws of the State of Georgia. The means of gaining access to said plant for hourly paid employees is through one single gate on said road. Even a few picketers would constitute mass picketing, which would likely prevent persons from going into said plant for the purpose of accepting employment. Such mass picketing is highly provocative and will necessarily result in intimidation and coercion, and is likely to result in violence and possible bloodshed.
In the radio address referred to, said Pedigo made references, more or less veiled, to possible changes in the peaceful character of the strike to date, and referring to the offer of the company to give employment as being inciting and provocative moves.
Any of the plaintiff's employees who desire to go to work in response to its notice as aforesaid are entitled to go to work without restraint or coercion, such as would be the necessary effect of such mass picketing; and such mass picketing violates not only the laws of the State of Georgia but the laws of the United States as well. Such employees are also entitled to go to work, and the plaintiff is entitled to have them work for it, if they wish, without threats or intimidation.
The plaintiff has no adequate remedy at law, and this suit, by joining the various defendants, will prevent a multiplicity of actions.
The prayers of the petition, indicated above only in general terms, included the following: (b) That in the meantime and until the further order of the court a temporary restraining order issue, restraining the defendants individually and the members of the union, their allies and confederates as a class, from obstructing the said road or any approaches to the said road so as to prevent the free and complete use thereof by any and all persons; that they likewise be restrained from any mass picketing of any kind; that they be restrained from any and all picketing except by persons moving on said road who shall not be nearer than 20 feet to each other; that defendants, including their allies and confederates, be enjoined and restrained from interfering in any manner whatever with access to said plant by any persons; that they be further restrained from any acts of coercion, intimidation, or from any threats in any way; that they be further restrained from following any of the plaintiff's employees and from intimidation or acts of coercion at any time or any place; that said defendants, including allies and confederates, be restrained as prayed, from having more than two pickets at any place at or about the said plant, or in or near the road, or the approaches to the said road aforesaid. (c) That the defendants show cause before the court at the time and place specified in the said rule nisi why they, their allies and confederates, should not be temporarily restrained and enjoined as prayed. (d) That a permanent injunction issue, as herein set out, in due course. (e) For general relief. (f) For process.
The restraining order which was granted on presentation of the petition and was later alleged to have been violated, was as follows:
"Rome, Georgia. October 25, 1948. Read and considered. Let the petition be filed and with process attached, served on the defendants as soon as may be. Let the defendants show cause before me in the Superior Court Room in the Floyd County Court House at 10 o'clock a. m. on the 30th day of October, 1948, why the prayers of the petition should not be granted. In the meantime and until further order of the court, the defendants and each of them, their allies and confederates, be and they are hereby restrained as prayed for in the petition. They are specifically restrained from using and from attempting to use violence for the purpose of preventing any person or vehicle from entering or leaving the premises of the plaintiff; from blocking any entrance of the plaintiff and from maintaining any mass picketing at any entrance of the plaintiff; from loitering or being unnecessarily in the vicinity of the points of ingress and egress of the premises; from having in front of or in proximity to the entrance of petitioner's premises any mass of pickets; that such pickets as shall be maintained shall be in motion and spaced not less than twenty (20) feet apart in a single line so as not to block any of said entrances for ingress and egress on foot or by vehicle of any person or persons desiring to enter or leave petitioner's premises or to deliver goods thereto or dispatch goods therefrom or from going to work or returning from work. They are further restrained from maintaining any picket line or picketing on the property of the plaintiff, and that all picketing shall take place only on the public highway adjacent from the property and at no other place or places. They are furthermore restrained from using abusive or intimidating language to any person or persons voluntarily entering petitioner's premises. They are furthermore restrained from, at any time or place, maintaining any pickets more than two (2) in number. They are restrained from following any of plaintiff's employees to or from work or to or from the homes of such employees and from engaging in any acts of intimidation or coercion at any time or at any place. The defendants, including their allies or confederates are restrained as prayed for in paragraph (b) of plaintiff's petition as well as specifically stated in this order.
"H. E. Nichols, Judge, Superior Court, Floyd County, Ga."
Two amendments to the petition were filed and allowed, one on November 23 and one on November 24, 1948. So far as appears in any of the records in these cases, no demurrer was filed to the original petition or to the petition as amended.
On October 26, 1948, the plaintiff corporation filed a petition alleging that on that same day the foregoing restraining order had been violated by J. D. Pedigo, C. L. Ross, and various other named defendants, including A. C. Carroll and H. D. Dodd, and praying that citation issue requiring the said respondents to show cause why they "should not be adjudged in contempt of the orders and processes of this court and be punished accordingly." Such petition for citation, which sounded in the same cause as the original petition for injunction but was docketed in the superior court as a motion, contained the following allegations:
With knowledge of said restraining order, the said Pedigo and Ross wilfully violated the same, in that said Pedigo arranged with a radio station in the City of Rome for said Ross to make an address to the general public, including strikers and members of the union described in said proceeding. In this address, which was made after the filing of such proceeding at about 9:20 p. m. October 25, the said Ross said in part: "You may have heard that we have been enjoined against mass picketing. We have talked to our attorneys . . and they tell us that such an injunction against mass picketing before there has been mass picketing is without precedent and absolutely illegal. Let's all be on the line at 5:30 in the morning" — meaning by this to meet at the plaintiff's plant at 5:30 the next morning and engage in mass picketing regardless of the restraining order and injunction. In this way, the said Pedigo and Ross collaborated together to induce strikers and union members to violate the terms of said order, and to show and exhibit contempt of this court and of its process.
More than 500 of such strikers, their confederates and allies, followed such instructions, the said Pedigo being present, directing and advising them in mass picketing and in other respects violative of said injunction. A number of other persons, including the said Carroll and Dodd, in addition to said Pedigo and Ross, were alleged to have been present and were named as respondents.
In direct violation of the restraining order and injunction granted in such proceedings, the persons named in the preceding paragraph, along with others who are at this time to the plaintiff unknown, denied access to said plant to persons who attempted to enter and had a right to enter. Among such persons attempting to enter were the crews of two trucks of Associated Transport Inc., who attempted to enter the plant for the purpose of receiving shipments of yarn to be carried in interstate commerce. The passenger buses of Georgia Power Company, which regularly run on schedule to said plant, were obstructed by mass picketing in the road to such an extent that they could not get through to go to the place where they regularly discharge passengers for the plant, but had to be diverted around a block of houses by a side street. The plaintiff is unable to say at this time how many other persons who desired to enter said plant were denied entrance thereto by such illegal conduct on the part of the respondents herein named, their allies and confederates. In addition to this, the union picket lines were maintained at the south gate in the fence surrounding plaintiff's plants, said picket lines being maintained on the property of the plaintiff in violation of the express terms of said restraining order; and picket lines were also maintained adjacent to the east gate in the fence surrounding the plaintiff's plants, and at the wood shop in violation of the express terms of said restraining order, both of such places being on the plaintiff's property. Eight or more pickets were at the said south gate, and seven or more pickets were at the other gates.
Two demurrers were filed to this petition for citation, by J. D. Pedigo and C. L. Ross, and one by all other "defendants named therein who have been legally served."
The demurrer filed by Pedigo and Ross to such petition for citation presented the contentions: That the "citation of contempt in so far as these defendants are concerned charges no violation of said injunction for the reason that it shows that they are exercising their right of freedom of speech, freedom of press, and freedom of peaceful assembly; and that any restraint thereof would be in violation of" the due-process cause of the Constitution of the State of Georgia (quoting it as in Code Ann., § 2-103), and "of the first and fourteenth amendments to the Constitution of the United States, which provide as follows," quoting both of these amendments. Code, §§ 1-801, 1-815. The demurrers filed by the other respondents presented the same contentions.
Both demurrers were overruled, and errors are assigned upon these rulings. J. D. Pedigo and C. L. Ross were tried separately from others on the foregoing contempt citation. The trial began on October 30, 1948. On November 17, the following judgment was entered: "Upon hearing evidence and argument of counsel, the defendants, J. D. Pedigo and C. L. Ross, are each severally found guilty of contempt of the order of this court as alleged in the within petition for citation. Whereupon the court orders and adjudges that each of said respondents pay to the proper officer of this court a fine of $200, and they each be confined in the jail of said county for 20 days. The sheriff of this county shall take this as his warrant, and as a commitment." To this judgment the respondents named therein excepted by bill of exceptions number 16,581. This bill of exceptions was presented on December 7, and was certified on December 30, 1948.
A. C. Carroll and H. D. Dodd were tried on the same citation, and were convicted of contempt on November 18, 1948. They in like manner sued out a direct bill of exceptions, complaining of the overruling of the second demurrer referred to above, and also assigning error upon the judgment so finding them guilty of contempt and imposing penalties therefor; the date of presentation and certification of this bill of exceptions (case 16,582) being the same as in case 16,581, supra.
S. T. Alred and eleven others, who were on December 6, 1948, adjudged guilty of contempt upon a later citation issued November 18, 1948, sued out a similar writ of error, as did Lowell E. Womack and four others, who were adjudged guilty on the same date, but on another citation issued November 18, 1948. Bills of exceptions in these two cases were presented on December 24, 1948, and certified on January 8, 1949 (Cases 16,583, 16,584).
On December 31, 1948, J. D. Pedigo, C. L. Ross, A. C. Carroll, and H. D. Dodd (the two last named as stated above, having been found guilty of contempt on November 18, 1948, on the same citation) jointly filed a petition praying that the judgments that had been rendered against them for alleged contempt be permanently terminated and stayed, alleging as cause therefor the following: The restraining order of October 25, 1948, was entered upon the application and petition of Celanese Corporation of America for the purpose of protecting the right of said corporation to be free from alleged unlawful acts on the part of the respondents therein toward its property and employees, and was calculated to prevent any such acts on the part of respondents in pursuance of their strike, and, accordingly, the aforesaid proceedings in contempt were for alleged civil contempt, being for the benefit of the petitioner for injunction. Thereafter, on December 8, 1948, Celanese Corporation and Textile Workers Union, the parties to the labor dispute giving rise to the strike which in turn gave rise to the temporary restraining order and the aforesaid conviction for contempt, entered a settlement agreement terminating the strike, paragraphs 7 and 8 of said agreement being as follows: "7. The company will ask that the petition for injunction and all citations for contempt of court filed in the superior court of said county not yet heard by the court will be dismissed with one half the costs in such petitions and citations taxed to each the plaintiff and the defendants thereto, and the union agrees to promptly pay off half of all of such costs not to exceed $3000. 8. The company will neither oppose or propose modification, withdrawal, or stay of sentence on those already adjudged in contempt of court, but if the judge of the superior court refuses to modify, withdraw, or stay such sentences, the company will file briefs in support of its original contentions in such cases. Court costs in such cases shall be determined by the court."
Pursuant to said agreement, the strike was terminated and all activities in pursuance of the strike were likewise terminated. Thereupon the court, on December 17, 1948, entered the following order: "Order of dismissal in Celanese strike case: The within case is hereby dismissed together with all citations for contempt of court not yet tried, except that the same is not dismissed, and the court hereby expressly retains jurisdiction of said cause in so far as it pertains to citations for contempt of court docketed as numbers 3232, 3249, and 3258, and to those respondents in said citations who have been adjudged guilty of contempt of court and on whom sentence has been passed, to wit, Joe D. Pedigo, C. L. Ross, A. C. Carroll, H. D. Dodd," and seventeen other persons named, being in all the twenty-one plaintiffs in error referred to above.
The petition for stay as above mentioned further alleged: The settlement and termination of said strike terminated as a matter of law all civil contempt proceedings instituted for the purpose of enforcing compliance with the temporary restraining order, including the cases of the petitioners herein. By reason of the foregoing facts, the orders and judgments finding the petitioners herein guilty of contempt and fixing punishments are moot and of no further force and effect. Execution of said orders and judgments should be permanently stayed for the further reason that during the trial of the instant cases, the court recognized the civil nature of the proceedings in ruling upon the admissibility of various evidence. Unless said orders and judgments be permanently stayed and all further proceedings thereunder terminated, the petitioners will be deprived of due process of law in violation of the fourteenth amendment to the Constitution of the United States and the due-process clause of the Constitution of Georgia, for that the decision of the court was predicated upon preponderance of evidence as in a civil case, instead of beyond a reasonable doubt, as would have been the rule had these proceedings been criminal in nature; and further, because in such event the petitioners will be denied liberty without due process of law by being punished as if convicted for an act criminal in nature rather than for an act civil in nature, after having been tried as if such act were civil only. By an amendment, the petitioners further alleged: The enforcement of such orders and judgments for contempt would deny to the petitioners due process of law, in violation of both the aforesaid designated constitutional provisions (State and Federal), in that such execution and enforcement would constitute imprisonment and payment of fines growing out of proceedings and process now moot and no longer in existence.
The petition for stay as amended, after consideration and argument of counsel, was denied, and to this judgment the petitioners Pedigo, Ross, Carroll, and Dodd excepted by bill of exceptions 16,597, on the ground that said order was contrary to law and equity, and for other reasons specifically set forth, being in the main an enumeration of the contentions made in such petition as amended. The other persons, who were also adjudged in contempt (but for different acts, on later and different citations) filed similar petitions for stay, and excepted to the denial of such petitions, the cases thus presented being 16,596 and 16,598.
We shall deal with cases numbers 16,596, 16,597, and 16,598 in one opinion, since they all involve the same questions. It will also be sufficient here to mention by name only one of these cases, to wit, 16,597, in which J. D. Pedigo, C. L. Ross, A. C. Carroll, and H. D. Dodd jointly assigned error on the denial of their petition for a permanent stay of the contempt judgments that had been rendered against them. We are considering these three cases first, for, if it should be held that the court erred in refusing the petitions for stay, it would seem that the other four cases mentioned in the statement, based on direct exceptions to the contempt judgments themselves, should then be treated as moot. Counsel for the plaintiffs in error concede that they should be so treated in that event.
1. It is contended in case 16,597 that the contempts charged and adjudged were civil contempts, as distinguished from criminal contempts, and that such being their character, the alleged contempts together with the judgments thereon were extinguished by the agreement between the parties settling the basic controversy. Though citing many authorities from other jurisdictions, including decisions of the United States Supreme Court, the plaintiffs in error rely mainly upon Wagner v. Commercial Printers, 203 Ga. 1 ( 45 S.E.2d 205); referring, however, to some additional Georgia cases as tending to support their contention.
We may state at this point, that, after a careful consideration of the subject, we have reached the conclusion that the decision in the Wagner case was an incorrect pronouncement in so far as it held that the contempt there under consideration was a civil contempt. The author of the opinion in that case, the present Chief Justice, indicated to counsel during the argument of the instant case that he was doubtful as to the soundness of that decision, and supplemental briefs were later invited with respect to that question, and also as to the reasonable-doubt rule, which will be dealt with in Pedigo v. Celanese Corporation, 16,581, post 392.
We are of the opinion that the contempts here in question cannot properly be classed as civil contempts, but that they are criminal contempts, or quasi-criminal, according to the classifications generally made by the courts, including several decisions by this court. Be it understood, however, that we are not in such classification referring to these alleged contempts as crimes. As to the definition of crime, see Code, § 26-201. Nor do we mean that a citation or rule for contempt in such case and a trial thereon would amount to a criminal prosecution. We say this, notwithstanding the fact that some if not all of the acts charged in the instant petition for citation for contempt might amount to misdemeanor crimes under the act approved March 17, 1947. Ga. L. 1947, p. 620. The plaintiffs in error were not prosecuted for a violation of that statute, but were merely cited to show cause why they should not be adjudged guilty of contempt in violation an injunctive order, the maximum punishment for which would be far less than the maximum prescribed by law for a misdemeanor. Code, §§ 24-2615 (5), 27-2506. For these and other reasons which will later appear in this opinion, it would seem that such contempt in disobeying the injunction would be only quasi-criminal, and, correctly speaking, should be so designated, although it is often referred to simply as criminal. We are here referring, of course, only to the general words of description as we think they should be understood under the laws of this State. See Hayden v. Phinizy, 67 Ga. 758; Tomlin v. Rome Stove Range Co., 183 Ga. 183 ( 187 S.E. 879); Plunkett v. Hamilton, 136 Ga. 72, 77 ( 70 S.E. 781). It has been stated by the United States Supreme Court, that a court when enforcing obedience to its orders by proceedings for contempt is not executing the criminal laws of the land. In re Debs, 158 U.S. 564 ( 15 Sup. Ct. 900, 39 L. ed. 1092); Myers v. U.S., 264 U.S. 95 ( 44 Sup. Ct. 272, 68 L. ed. 577). But for statements apparently contra, see Michaelson v. U.S., 266 U.S. 42 ( 45 Sup. Ct. 18, 69 L. ed. 162); Ex parte Grossman, 267 U.S. 87 ( 45 Sup. Ct. 332, 69 L. ed. 527); United States v. Goldman, 277 U.S. 229 ( 48 Sup. Ct. 486, 72 L. ed. 862). See also, in this connection, 12 Am. Jur. 435, § 67;17 C. J. S. 72, § 62.
We are not in this case concerned with such contempts as disorder in the courtroom, an attempt to bribe or otherwise improperly influence a jury, improper conduct or language of an attorney, and similar instances of misconduct not referable to any order, judgment, or process of the court in a pending case; for the alleged contempts here under consideration were the doing of acts that had been forbidden by a restraining order granted in an equity or civil case, where no money or other property was sued for, but in which the sole and only relief sought was an injunction against the doing of such acts.
Now as to the bases of classification: The Constitution provides: "The power of the courts to punish for contempt shall be limited by legislative acts." Code, § 2-120. It is declared in the Code: "Every court has power . . (3) To compel obedience to its judgments, orders, and process, and to the orders of a judge out of court, in an action or proceeding therein." § 24-104. "The powers of the several courts to issue attachments and inflict summary punishment for contempt of court shall extend only to cases of misbehavior of any person or persons in the presence of said courts or so near thereto as to obstruct the administration of justice, the misbehavior of any of the officers of said courts in their official transactions, and the disobedience or resistance by any officer of said courts, party, juror, witness, or other person or persons to any lawful writ, process, order, rule, decree, or command of the said courts: . . " § 24-105. "All orders and decrees of the court may be enforced by attachment against the person; decrees for money may be enforced by execution against the property." § 37-1208. "Every decree or order of a superior court in equitable proceedings may be enforced by attachment against the person for contempt; and if a decree shall be partly for money and partly for the performance of a duty, the former may be enforced by execution, and the latter by attachment or other process." § 37-1208. "Injunction . . may be enforced also by attachment." § 37-1210. "The superior courts have authority . . (5) To punish contempt by fines not exceeding $200, and by imprisonment not exceeding 20 days." § 24-2615.
All of the foregoing provisions were contained in the same or substantially the same language in the Code of 1863, and in each of the subsequent Codes. See Code of 1863, §§ 4902, 200, 4593, 4125, 4127, 242 (5).
In Cobb v. Black, 34 Ga. 162, decided in 1865, the court had for consideration the nature of an order requiring the defendant in an equity case to turn over certain property to a receiver. The defendant had been attached for contempt for disobeying the order. The sheriff was commanded to keep him in jail until he should deliver the property as the order required. He applied for the writ of habeas corpus, which the judge refused, and he excepted. This court, after quoting from the Code of 1863 what is now § 24-104 (3), supra, proceeded to distinguish between punitive and remedial contempts in the following language: "It is attempted to prove that the Judge exceeded his power in prolonging the imprisonment beyond twenty days, by reference to sections 4902, 4593, and 242 (specification 5.) Those provisions of law refer to attachments for contempt which are simply punitive. They apply where an act has been done which has disturbed the regular proceedings of the court, or resisted its authority, or reflected contempt upon it. To prevent a repetition of the offense, and to deter others from its commission in future, the power of inflicting summary punishment is given to courts. The act has been done, and when the punishment shall have been inflicted, the whole matter is at an end. These are the cases in which the power of finding [fining] is limited to two hundred dollars, and of imprisoning to twenty days. But there are cases, and such is the present, wherein the process of attachment is remedial. The court orders or decrees that a party, regularly before it, do a certain act necessary to the administration of justice, according to law, and the party refuses to do it. As the only means of compelling obedience and furthering the administration of justice, courts, in such cases, have power to imprison the refractory party until he shall obey the precept." While the contempt there involved was held to be remedial or civil in character, the distinction made was necessary to the conclusion reached, and is pertinent here.
In Durand v. Howard, 346, Ga. 346, it was said: "In this case, the defendant was enjoined from using or selling the property in litigation. This injunction, the plaintiff alleges, has been violated by the defendant. Suppose the court had `committed defendant for said contempt,' would this afford any remedy to Howard? Would it restore the property sold? Do not the facts show that the only effect of the punishment would be to vindicate the authority of the court, and not to furnish any remedy for the plaintiff? We think so. Hence the question was one for the discretion of the court below. If this were a remedial proceeding, to which the plaintiff is entitled for the enforcement of his rights, then we would control the discretion of the court below, and award to the party that relief to which, under the facts and the law, he would be entitled." The court thus considered the violation of the injunction in that case as being a criminal contempt.
In Carson v. Ennis, 146 Ga. 726 ( 92 S.E. 221), it appeared that Carson was adjudged in contempt of court and a penalty was imposed upon him, for aiding and procuring the violation of an injunctive order issued in a case in which no other relief except injunction was sought. This court said: "It is apparent that the relator is not seeking to enforce any order made for the protection or enforcement of any private right, but to punish for alleged contumacious and disrespectful conduct towards the court in wilfully disobeying the court's order"; and the alleged contempt was considered and dealt with as a criminal contempt.
The foregoing statements as to the distinction between civil and criminal contempts accord in a general way with formulas usually found in decisions and texts. Gompers v. Buck's Stove Range Co., 221 U.S. 418 ( 31 Sup. Ct. 492, 55 L. ed. 797, 34 L.R.A. (N.S.) 874); Lewis v. U.S. 330 U.S. 258 ( 67 Sup. Ct. 677, 91 L. ed. 884); Walling v. Crane, 158 F.2d 80; Smith v. Clothier, 113 Kan. 47, 51, 52 ( 213 P. 1071); 17 C. J. S. 74-79, § 62, b; 12 Am. Jur. 433, 435, §§ 66, 67.
As many courts have further said, however, it may not always be easy to classify a particular act as belonging to either one of the two classes, for it may partake of the characteristics of both.
In the Gompers case it was stated: "It is not the fact of punishment, but rather its character and purpose, that often serve to distinguish between the two classes of cases. If it is for civil contempt the punishment is remedial, and for the benefit of the complainant. But if it is for criminal contempt the sentence is punitive, to vindicate the authority of the court. It is true that punishment by imprisonment may be remedial as well as punitive, and many civil-contempt proceedings have resulted not only in the imposition of a fine, payable to the complainant, but also in committing the defendant to prison. But imprisonment for civil contempt is ordered where the defendant has refused to do an affirmative act required by the provisions of an order which, either in form or substance, was mandatory in its character. Imprisonment in such cases is not inflicted as a punishment, but is intended to be remedial by coercing the defendant to do what he had refused to do. The decree in such cases is that the defendant stand committed unless and until he performs the affirmative act required by the court's order. . . The distinction between refusing to do an act commanded — remedied by imprisonment until the party performs the required act; and doing an act forbidden — punished by imprisonment for a definite term; is sound in principle, and generally, if not universally, affords a test by which to determine the character of the punishment."
As further illustrating civil contempt, see Beavers v. Beavers, 148 Ga. 506 ( 97 S.E. 65), where the defendant failed to pay alimony in compliance with the judgment of the court; Swanson v. Douglas, 150 Ga. 650 ( 105 S.E. 161), where the defendant failed and refused to execute a deed in conformity with a decree of specific performance.
In the instant case, the plaintiff did not seek enforcement of any affirmative right as against any one of the defendants, but merely sought an injunction to prevent interference with the plaintiff and its employees in the conduct of its business; and in the contempt proceedings the defendants were simply charged with doing acts that had been forbidden by a restraining order.
In the Wagner case, 203 Ga. 1 (supra), the general rule for distinguishing between a civil and a criminal contempt was correctly stated, but we overlooked the fact that the plaintiff in that case (as in the case now before us) was not seeking to enforce any affirmative right which it had against the defendant, and that the order alleged to have been violated was merely negative in character, restraining the defendants from doing stated acts. We thus inadvertently fell into error in classifying the violation of the order as a civil rather than a criminal contempt. The decision was not concurred in by all the Justices, one being absent. Therefore it is not absolutely binding upon this court as a precedent, and, in view of what has been said, it will not be followed in the instant case in so far as it held that the particular act there under consideration was a civil contempt. Compare Code, § 6-1611. This is not to say, however, that the judgment rendered in that case affirming the judgment of the trial court was incorrect under the pleadings and the evidence. Compare Pedigo v. Celanese Corp. of America (16,581), post, 392.
The alleged contempts having been committed solely in violation of an injunctive order issued by the court as an institution of government, and punishment having been meted only as provided in Code § 24-2615 (5), such contempts were matters affecting the public interest, and, being thus quasi-criminal in nature, they could not be extinguished or rendered moot by any settlement between the parties. § 102-106. Nor could their essential nature as public wrongs be changed, either by the fact that the petition for citation was brought by the plaintiff in the main case, or by any conception that the trial judge himself may have had regarding its character. While the nature of a proceeding under which one is required to answer for an alleged contempt may sometimes be an important matter for consideration, mere matters of procedure are not controlling in determining the character of the contempt itself as being either civil or criminal. See Gompers v. Buck's Stove Range Co., 221 U.S. 418, p. 446 (supra), last two paragraphs of the decision.
2. But it is further contended that the contempt proceedings here were, as a matter of fact, "civil contempt proceedings," and were so recognized by the judge, both in ruling upon the admissibility of evidence and in basing his decision upon the preponderance-of-evidence rule; and that, in these circumstances, unless the contempt orders and judgments are permanently stayed, the plaintiffs in error will be denied liberty without due process of law by being convicted of an act criminal in nature rather than for an act civil in nature, after having been tried as if the acts were civil only. (See allegations in the petition for stay.)
The gist of this contention, as we understand it, is that, since the proceedings themselves were (as insisted) "civil contempt proceedings," they would as such necessarily fall as a result of the settlement; and that, unless the contempt judgments should be ordered to fall with them, the plaintiffs in error would be denied due process of law by being punished as for criminal contempts after being convicted solely upon civil contempt proceedings. We shall not pass upon this contention in toto, for in our view of the case it will be sufficient to show, as we think is true, that the contempt proceedings were not civil proceedings in the sense that they would not support the judgments for criminal contempt as rendered, or be subject to private agreement and settlement between the parties so as to affect such judgments.
It should be borne in mind that the allegations as to how the judge regarded the case, both in ruling upon evidence and in making up his decision, are contained in a mere petition for stay, and are not set forth as assignments of error upon the contempt orders themselves, or other judgment. Seemingly, they were made simply to reinforce the contention that the proceedings were civil contempt proceedings, but, in any view, the real character of the proceedings could not be altered by any allegations in the petition for stay as to how the trial judge may have regarded them.
Counsel further say in effect, however, that these proceedings were civil in character, because the petition for citation or rule nisi was brought by the plaintiff in the original equity case, acting for its own private benefit, and was entitled and tried as a part of the main case; whereas proceedings for criminal contempt, they insist, should be instituted as a separate and independent case in the name of the State or in its behalf by its prosecuting attorney, and would constitute an action at law rather than a suit in equity.
The Gompers case, on which the plaintiffs in error apparently rely most strongly in this connection, originated in a trial court in the District of Columbia. After being there convicted for violation of an injunction, the respondents carried the case on direct exceptions first to the Circuit Court of Appeals and then to the United States Supreme Court. It was held by the latter court that the proceedings in which the respondents were convicted were civil in character, subject to settlement by the parties. In the first place, we do not think that the decision in the Gompers case involved any Federal question that would make it binding as a precedent on the question we are now discussing; but it may be said in addition that the Gompers case is clearly distinguished by its facts from the present case as related to the nature of the contempt proceedings. Without enumerating the many points of difference, we merely call attention to the conduct of the parties in the various courts as outlined in that decision, and the prayers of the petition for citation in that case as compared with the prayer in the instant case.
In the present case, the only prayer in the petition for citation was that the respondents show cause why they "should not be adjudged in contempt of the orders and process of this court and be punished accordingly." This prayer did not indicate that the plaintiff was asking that the respondent be punished as for a civil contempt. While, as we have said, the petition for citation was filed by the plaintiff and was entitled in the main cause, there are no other facts or circumstances shown in the petition for stay (which is the only matter here for consideration) which would even tend to indicate that either the plaintiff or its attorneys regarded the alleged contempt as civil rather than criminal. Nor does it appear that they made any effort whatever to mislead either the court or the respondents.
Moreover, regardless of what may be the law in other jurisdictions, we are of the opinion that the procedure adopted in this case was a proper method under the law of Georgia for requiring respondents to answer for alleged criminal contempt. A petition for rule nisi or citation brought by the original plaintiff, entitled in the main cause, has long been recognized in this State as a proper method of procedure, even though it may appear that the alleged contempt arose in violation of an injunction and was criminal or quasi-criminal in nature. See, in this connection: Howard v. Durand, 36 Ga. 346 (91 Am. D. 767); Williams v. Lampkin Co., 53 Ga. 200; Thweatt v. Gammell, 56 Ga. 98; Hayden v. Phinizy, 67 Ga. 758; Warner v. Martin, 124 Ga. 387 ( 52 S.E. 446, 4 Ann. Cas. 180); Tomlin v. Rome Stove Range Co., 183 Ga. 183 (supra).
Under the law of Georgia, no particular form of procedure is necessary or required. The matters of real importance are that respondents be given notice, with sufficient specification as to charges, and opportunity to be heard. We need not determine here whether such a petition by the original plaintiff is the only permissible practice. There are instances where proceedings for criminal contempt were instituted by solicitors-general. See Bradley v. State, 111 Ga. 168 ( 36 S.E. 630, 50 L.R.A. 691, 78 Am. St. R. 157); Carson v. Ennis, 146 Ga. 726 ( 92 S.E. 221); Jones v. State, 166 Ga. 553 ( 144 S.E. 106).
In further reference to the procedure adopted in the instant case, let it be remembered that Code, §§ 37-123, 37-1208, and 37-1210, regarding attachment for contempt, are found in the title on equity, and they have occupied the same relative position since the adoption of the Code of 1863. Was it ever contemplated by the law of Georgia that all suits for injunction may ultimately have to be policed by the State through its prosecuting attorneys? Shall a party who is about to institute a suit for injunction also bear in mind that he may later have to request some prosecuting attorney to take over, in case an injunction is granted and is violated? We do not think that our law would absolutely require such multiplicity or circuity of proceedings in a matter of this character. If a party has sufficient interest in a matter or controversy to justify him in asking for an injunction, then it seems that he would in like manner have sufficient interest to maintain a petition for a rule nisi for contempt in the event the injunction should be violated — especially as punishment would tend to prevent or deter a repetition of the forbidden interference.
It may be that a proceeding for criminal contempt is in one sense an additional case to the main suit in equity, in that it will require new pleadings, separate trial, and a separate judgment. But, after all, it stems from the same equity case, and it certainly cannot be considered as an independent case; and where a proper citation for contempt is brought by the plaintiff in the original equity suit, it may be considered as a branch of the equity case and tried accordingly. See Hayden v. Phinizy, 67 Ga. 758 (supra), Tomlin v. Rome Stove Range Co., 183 Ga. 183 (supra), Warner v. Martin, 124 Ga. 387 (supra). Auto Highball Co. v. Sibbett, 11 Ga. App. 618 ( 75 S.E. 914), was not a suit in equity, and may perhaps be otherwise distinguished by its facts from the instant case, but in so far as that decision may be contrary to the views herein expressed, it will not be followed.
It would too greatly prolong this opinion to cite and discuss all of the cases relied on by counsel for the plaintiffs in error, but what has been said above will, as we believe, cover in a general way the several contentions made. It is our opinion that the contempt proceedings were not civil proceedings in the sense that they would not support the judgments for criminal contempt as rendered by the trial court; nor were they subject to private agreement and settlement between the parties so as to affect such judgments. It follows from what has been said that the court did not err in denying the petitions for stay.
In the view which we have taken of the other questions, it is unnecessary to pass on the contention of the defendant in error that paragraph 8 of the settlement agreement had the effect of excluding therefrom the contempt cases wherein the respondents had already been tried and convicted.
Judgments affirmed in cases 16,596, 16,597, 16,598. All the Justices concur.