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provided for in the preceding section of the act relate to appeals and writs of error from the district and circuit courts direct to the Supreme Court, and do not include final decisions in the district and circuit courts in contempt proceedings. The primary object of the Act of March 3, 1891, well known as a matter of public history, manifest on the face of the act, and judicially declared in the leading cases under it, was to relieve the Supreme Court of the overburden of cases and controversies arising from the rapid growth of the country and the steady increase of litigation, and, for the accomplishment of this object, to transfer a large part of the appellate jurisdiction of the Supreme Court to the circuit court of appeals thereby established in each judicial circuit, and to distribute between the Supreme Court and the circuit courts of appeals, according to the scheme of the act, the entire appellate jurisdiction from the circuit and district courts of the United States. American Constr. Co. v. Jacksonville, T. & K. W. R. Co. (1893) 148 U. S. 372, 382, 37 L. ed. 486, 490, 13 Sup. Ct. Rep. 758; United States v. American Bell Teleph. Co. (1895) 159 U. S. 548, 551, 40 L. ed. 255, 256, 16 Sup. Ct. Rep. 69. Prior to this act the general appellate jurisdiction of the Supreme Court in civil cases was provided for in the several acts of Congress incorporated into §§ 691, 692, and 693 of the Revised Statutes; and the authority to decide questions occurring on the hearing or trial of any criminal proceeding before a circuit court, upon which the judges were divided in opinion, was provided for in § 697 of the Revised Statutes. Neither of these sections provided in express terms for the review of judgments in contempt proceedings, but very early in the judicial history of the Supreme Court the question arose whether the court had authority to review the judgments of the circuit courts in such proceedings.

. The Supreme Court draws a distinction between a contempt proceeding where the court is called upon to vindicate its authority and dignity, and where the enforcement of its or

ders and decrees are, to all intents and purposes, orders in the course of the cause based on the questions involved as to the legal rights of the parties. The first are in the nature of criminal proceedings, and, under the law as it stood prior to the Act of March 3, 1891, establishing the circuit court of appeals, the jurisdiction of the Supreme Court to review the judgment of the circuit courts in criminal cases was upon a certificate of division of opinion between the judges of the latter court. And since, if the judges of the circuit courts disagreed, there could be no judgment of contempt (California Artificial Stone Paving Co. v. Molitor (1885) 113 U. S. 609, 618, 28 L. ed. 1106, 1109, 5 Sup. Ct. Rep. 618), it followed that no cases of that character were reviewed by the Supreme Court. With respect to the second class of contempts, the Supreme Court had authority to review such interlocutory judgments or decrees upon an appeal from the final decree in the cause. This, then, was the state of the law upon this subject when the circuit court of appeals was established, in 1891, and those courts succeeded to a portion of the appellate jurisdiction previously conferred upon the Supreme Court. There is, however, this difference in the appellate jurisdiction of the two courts,the Supreme Court had jurisdiction to review questions occurring on the hearing or trial of a criminal case in the circuit court upon a certificate of division of opinion between the judges of the circuit court. The circuit court of appeals has jurisdiction, under the Act of March 3, 1891, to review final decisions in a criminal case not capital in either the circuit or district court, upon a writ of error.. The conclusion we reach is that the judgment of contempt of court which the appellants seek to have reviewed upon the present writ of error is a judgment in a civil proceeding; that it is remedial and coercive in its execution; and that it has been entered by the court for the purpose of enforcing the private rights of the complainant judicially determined in its favor. It follows that it is a judg

ment that cannot be reviewed upon this writ of error, and the writ of

is therefore dismissed, with

costs to the defendant in error."

Likewise it was said in Re Christensen Engineering Co. (1904) 194 U. S. 458, 48 L. ed. 1072, 24 Sup. Ct. Rep. 729, that "when an order imposing a fine for violation of an injunction is substantially one to reimburse the party injured by the disobedience, although called in one a contempt proceeding, it is to be regarded as merely an interlocutory order, and to be reviewed. only on appeal from the final decree."

So, in Nassau Electric R. Co. v. Sprague Electric R. & Motor Co. (1899) 37 C. C. A. 146, 95 Fed. 415, an action brought to restrain the infringement of a patent, the circuit court of appeals held that an order imposing a fine for the violation of a preliminary injunction could not be reviewed on a writ of error; that it could only be reviewed on an appeal from a final decree on the cause.

Section 725 of the Revised Statutes (Judicial Code, § 268, Comp. Stat. § 1245, 5 Fed. Stat. Anno. 2d ed. p. 1009), providing that the courts of the United States shall have power to punish, "by fine or imprisonment, at the discretion of the court, contempts of their authority," provided that such power "shall not be construed to extend to any cases except ... the disobedience by

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any party, juror, witness, or other person, to any lawful writ, process, order, rule, decree, or command of the said courts," has been said not to make the action of the circuit court such a matter of discretion that an order imposing a fine for the violation of an injunction is not reviewable. Worden v. Searls (1887) 121 U. S. 14, 30 L. ed. 853, Sup. Ct. Rep. 814.

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Where civil contempt is committed after final decree.

A judgment against a party in a suit in equity for a civil contempt committed after the decree is reviewable by appeal. Wilson v. Calculagraph Co. (1907) 83 C. C. A. 77, 153 Fed. 961. See also Clay v. Waters (1910) 101 C. C. A. 645, 178 Fed. 385, 21 Ann. Cas. 897.

In Cary Mfg. Co. v. Acme Flexible Clasp Co. (1901) 48 C. C. A. 118, 108 Fed. 873, the court reviewed on a writ of error a judgment of the circuit court imposing a fine for a violation of an injunction against an infringement of a patent. The proceeding was, however, after the final decree sustaining the patent and adjudging an infringement of the patent in the circuit court, and after the affirmance of this final decree in the circuit court of appeals. See also Westinghouse Air Brake Co. v. Christiansen Engineering Co. (1903) 123 Fed. 632.

(2) Criminal contempt.

An order adjudging a person guilty of a criminal contempt committed in the progress of a suit in equity is a final judgment, criminal in its nature, and reviewable on a writ of error, without awaiting the final decree. Re Christensen Engineering Co. (1904) 194 U. S. 4-8, 48 L. ed. 1072, 24 Sup. Ct. Rep. 729; Re Merchants' Stock & Grain Co. (1912) 223 U. S. 639, 56 L. ed. 584, 32 Sup. Ct. Rep. 339; Union Tool Co. v. Wilson (1922) 259 U. S. 107, 66 L. ed. 848, 42 Sup. Ct. Rep. 427, affirming (1920) 265 Fed. 669; Gould v. Sessions (1895) 14 C. C. A. 366, 35 U. S. App. 281, 67 Fed. 163, affirming (1894) 11 C. C. A. 550, 26 U. S. App. 368, 63 Fed. 1001; Frankfort v. Deposit Bank (1904) 62 C. C. A. 492, 127 Fed. 812; Bullock Electric & Mfg. Co. v. Westinghouse Electric & Mfg. Co. (1904) 63 C. C. A. 607, 129 Fed. 105; Continental Gin Co. v. Mur-' ray Co. (1908) 89 C. C. A. 563, 162 Fed. 873; Clay v. Waters (1910) 101 C. C. A. 645, 178 Fed. 385, 21 Ann. Cas. 897. See also Heinze v. Butte & B. Consol. Min. Co. (1904) 63 C. C. A. 388, 129 Fed. 274; Garrigan v. United States (1908) 23 L.R.A. (N.S.) 1295, 89 C. C. A. 494, 163 Fed. 16.

Thus it was said in Clay v. Waters (1910) 101 C. C. A. 645, 178 Fed. 385, 21 Ann. Cas. 897: "If the court below had ordered the defendant to convey to the trustee or to account for and pay over to him within a certain time. the proceeds of the property with which he was charged by the decree, or any specific part of it, if, after

proper notice, he had refused so to do, and the court, after hearing, had adjudged that he be committed to jail until he obeyed the order, there would have been no doubt that the judgment was for a civil contempt. But in these proceedings for contempt the court made no order that the defendant should convey any of the property or account for and pay over any of the proceeds of the property described in the decree, although the trustee prayed for that relief. . . . After the trustee had commenced the suit to subject the property that stood in the name of the defendant to administration as a part of the bankrupt's estate, and after the subpoena therein had been served upon him, he disposed of a large part of that property for the purpose of taking it out of the jurisdiction of the court below and of defeating its coming decree. Here was a second act which constituted a contempt of that court. While these acts, and the failure of the defendant to comply with the decree, prevented the trustee from securing the property to which he was entitled, and for that reason they have some of the characteristics of civil contempts, the intentional continuance of the concealment from the trustee and the court of the part of the bankrupt's estate which the defendant invested in his name, and the wilful withdrawal of the property in his name which was the subject of the suit against him from the jurisdiction of that court after the suit was commenced for the purpose of defeating its decree, were such bold and defiant affronts to its dignity that the civil aspect of the acts of the defendant sinks into insignificance. That this was the view of the court below is evidenced by the fact that the judgment is clearly punitive. It is imprisonment for ten months unless the defendant purges himself of the contempt of the court by accounting for and paying back to it the proceeds of the property he withdrew from its jurisdiction, before that time expires. The conclusion is that the foundation of the judgment was the intentional taking and concealment of the bank

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rupt's estate by the defendant, and his wilful withdrawal from the jurisdiction of the court of the subject-matter of the suit against him after that suit had been commenced, for the purpose of defeating its coming decree; and that this judgment was rendered for a criminal contempt, in order to punish the defendant and to vindicate the authority of the court. A judgment for a criminal contempt in a suit in equity is reviewable by writ of error. Act March 3, 1891, 26 Stat. at L. 828, chap. 517, § 6, 6 Fed. Stat. Anno. 2d ed. p. 157."

So, in Union Tool Co. v. Wilson (1922) 259 U. S. 107, 66 L. ed. 848, 42 Sup. Ct. Rep. 427, affirming (1920) 265 Fed. 669, the court said: "The contention that the court of appeals was without jurisdiction of the cross writ of error is renewed here. It is argued that the judgment for contempt, so far as now sought to be reviewed, is remedial, not punitive; that, being remedial, it can be reviewed only on appeal, and not on writ of error; that an appeal will not lie until after the final decree; and that no final decree had been entered, as the accounting was still in process. It is true that the part of the judgment for contempt now under review is remedial. But it does not follow that the court of appeals lacked jurisdiction to review it on the cross writ of error. The district court entered a single order, part remedial, part punitive. Where a fine is imposed, partly as compensation to the complainant and partly as punishment, the criminal feature of the order is dominant and fixes its character for purposes of review. Re Merchants' Stock & Grain Co. (1912) 223 U. S. 639, 56 L. ed. 584, 32 Sup. Ct. Rep. 339. If the company had acquiesced in the judgment entered, Wilson, having no right to initiate a review of the punitive part, could not have instituted any appellate proceeding until after final decree. Re Christensen Engineering Co. (1904) 194 U. S. 458, 48 L. ed. 1072, 24 Sup. Ct. Rep. 729; Doyle V. London Guarantee & Acci. Co. (1907) 204 U. S. 599, 51 L. ed. 641, 27 Sup. Ct. Rep. 313. See also Alexander v. United

States (1906) 201 U. S. 117, 122, 50 L. ed. 686, 688, 26 Sup. Ct. Rep. 356. But an order punishing one criminally for contempt is a final judgment. The contemner may obtain immediately a review by writ of error. Bessette v.

W. B. Conkey Co. (1904) 194 U. S. 324, 336-338, 48 L. ed. 997, 1005, 1006, 24 Sup. Ct. Rep. 665. And the company availed itself of this right. When the order was thus brought before the court of appeals, it acquired, at the company's instance, jurisdiction to review that part which was civil, as well as that which was criminal, in its nature. In the exercise of that jurisdiction it granted, in respect to Double, relief which affected both the criminal and the civil parts of the order. If a cross writ of error had been filed, Wilson could not have secured from the court of appeals relief in respect to that part of the order which was unfavorable to him. Bolles v. Outing Co. (1899) 175 U. S. 262, 268, 44 L. ed. 156, 158, 20 Sup. Ct. Rep. 94. But a cross writ was duly filed, and that enabled the court to review the portion of the order, civil in its nature, which Wilson alleged to be erroneous; for the judgment in the contempt proceeding was a unit. . .

The facts relating

to the sale of spare parts were agreed, and the question before the court was merely as to their legal effect. That question could appropriately be considered on a cross writ of error, even without resort to the power conferred by 8 4 of the Act of September 6, 1916, chap. 448, 39 Stat. at L. 726, Comp. Stat. § 1649a, Fed. Stat. Anno. Supp. 1918, p. 421."

And in Re Merchants' Stock & Grain Co. supra, it was held that a judgment finding defendants in a pending suit in equity guilty of contempt of the court's authority, in violating an interlocutory injunction previously granted in a suit for the benefit of the complainant, and ordering the payment of specified fines, part of which was to compensate the complainant and the remainder a fine payable to the United States,-was reviewable in the circut court of appeals by writ of error without awaiting the final de

cree in the suit in equity and appealing therefrom; the ground being that the judgment, being in part in the nature of a fine, was punitive, instead of remedial, and therefore permitted a review by writ of error.

Likewise, in Re Christensen Engineering Co. supra, where it appeared that the defendant in a suit in equity in a circuit court was found guilty of contempt in disobeying an interlocutery injunction, and ordered to pay a fine of $1,000,-one half to go to the complainant and the other half to the United States, the court said: "In the present case, the fine payable to the United States was clearly punitive and in vindication of the authority of the court, and we think, as such, it dominates the proceeding and fixes its character. Considered in that aspect, the writ of error was justified, and the circuit court of appeals should have taken jurisdiction."

On such a writ only questions of law are open to review. Continental Gin Co. v. Murray Co. (1908) 89 C. C. A. 563, 162 Fed. 873.

If the circuit court of appeals refuses to entertain a review of the proceedings by writ of error, a mandamus lies in the Supreme Court to compel its consideration. Re Christensen Engineering Co. (1904) 194 U. S. 458, 48 L. ed. 1072, 24 Sup. Ct. Rep. 729; Re Merchants Stock & Grain Co. (1912) 223 U. S. 639, 56 L. ed. 584, 32 Sup. Ct. Rep. 339.

Where a court enters an order of injunction, and the defendant, instead of bringing the order up for review, waives all objections to it by submitting and promising obedience to it, he cannot later question the jurisdiction of the court collaterally on an appeal from an order adjudging him in contempt for its violation. Jennings v. United States (1920) 264 Fed.

Nor, under such circumstances, can he defend on the ground that the injunction was too broad. Scoric v. United States (1914) 133 C. C. A. 581, 217 Fed. 871.

Where the proceedings as to two defendants are joint throughout, both as respects the affidavits for arrest,

the order to show cause, the trial, the verdict, and the judgment entry, the judgment as to each defendant being merely separately paragraphed,-the order adjudging them in contempt for the violation of an injunction may be reviewed by a joint writ of error. Tosh V. West Kentucky Coal Co. (1918) 15 A.L.R. 376, 164 C. C. A. 156, 252 Fed. 44.

(b) Where contemner is stranger to suit.

Where a contempt proceeding is against a person not a party to the suit, and is of such a nature that it cannot be regarded as interlocutory, the review must be by writ of error. Bessette v. W. B. Conkey Co. (1904) 194 U. S. 324, 48 L. ed. 997, 24 Sup. Ct. Rep. 665, wherein the court said: "The Act of March 3, 1891, establishing circuit courts of appeals, must now be more fully considered. While its primary purpose was the relief of this court by the creation of new appellate courts and the distribution between those courts and this of the entire appellate jurisdiction of the United States, yet it also

enlarged the area of appellate jurisdiction. As originally passed it gave to this court jurisdiction over cases of infamous crimes, in addition to that which it theretofore had in capital cases. By § 6 it gave to the circuit courts of appeals appellate jurisdiction to review, by appeal or writ of error, final decisions in the district court and the existing circuit courts, in all cases other than those provided for in the preceding section. That this was intended to include criminal cases is evident from a subsequent clause, which makes the decision of the courts of appeals final ‘in all cases arising under the criminal laws.' See Uniteed States v. Rider (1896) 163 U. S. 132, 138, 41 L. ed. 101, 103, 16 Sup. Ct. Rep. 983, in which, referring to §§ 5 and 6, we said: "Thus appellate jurisdiction was given in all criminal cases by writ of error from this court or from the circuit court of appeals.' As, therefore, the ground upon which a review by this court of a final decision in contempt cases was denied no longer exists, the decisions

themselves cease to have controlling authority; and whether the circuit courts of appeals have authority to review proceedings in contempt in the district and circuit courts depends upon the question whether such proceedings are criminal cases. That they are criminal in their nature has been constantly affirmed. The orders imposing punishment are final. Why, then, should they not be reviewed as final decisions in other criminal cases? It is true they are peculiar in some respects, rightfully styled sui generis. They are triable only by the court against whose authority the contempts are charged. No jury passes upon the facts; no other court inquires. into the charge. . . . So when, by § 6 of the Court of Appels Act, the circuit courts of appeals are given jurisdiction to review the 'final decision in the district court and the existing circuit courts in all cases other than those provided for in the preceding section of this act, unless otherwise provided by law,' and the preceding section gives to this court jurisdiction to review convictions in only capital or otherwise infamous crimes, and no other provision is found in the statutes for a review of the final order in contempt cases, upon what satisfactory ground can it be held that the final decisions in contempt cases in the circuit or district courts are not subject to review by the circuit courts of appeals? Considering only such cases of contempt as the present, that is, cases in which the proceedings are against one not a party to the suit, and cannot be regarded as interlocutory, we are of opinion that there is a right of review in the circuit court of appeals. Such review must, according to the settled law of this court, be by writ of error."

II. Rule in state courts.

a. Where particular violation is regarded as civil contempt.

1. View that order may not be reviewed.

(a) Common-law rule.

The general rule at common law did not permit an order adjudging a per

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