1. The Clayton Act, October 15, 1914, §§ 21, 22, c. 323, 38
Stat. 738, provides that any person who shall willfully disobey any
writ, etc., of any district court of the United States or court of
the District of Columbia, by doing any act or thing therein or
thereby forbidden, if of such character as to constitute also a
criminal offense under any statute of the United States or law of
the state in which committed, shall be proceeded against as in the
Page 266 U. S. 43
provided; that, in all such cases, the trial may be by the
court, or, upon demand of the accused, by a jury, and shall
conform,as near as may be, to the practice in criminal cases
prosecuted by indictment or upon information, the accused, upon
conviction, to be punished by fine or imprisonment, or both, the
fine to be paid to the United States or to the complainant or other
party injured by the act constituting the contempt, or, where
several are so damaged, be apportioned among them as the court may
direct. Concerning this,
(a) That the proceeding contemplated is for the prosecution of
criminal contempts exclusively, the discretion given the court
regarding the payment of fine to private complainants being
incidental and subordinate to the dominating purpose of the
proceeding, which is to vindicate the authority of the court and
punish the act of disobedience as a public wrong. P. 266 U. S.
(b) A proceeding for criminal contempt, committed by
disobedience of an injunction, unlike the proceeding for civil
contempt, is between the public and the defendant, is an
independent proceeding at law, and no part of the original cause.
Gompers v. Bucks Stove & Range Co., 221 U.
(c) The courts of the United States, when called into existence
and vested with jurisdiction over any subject, at once become
possessed of the power to punish for contempt, which is inherent in
all courts and essential to the administration of justice. P.
266 U. S.
(d) Insofar as concerns the lower federal courts, although the
attributes which inhere in this power and are inseparable from it
can neither be abrogated nor rendered practically inoperative, the
power, within limits not precisely defined, may be regulated by
Congress. P. 266 U. S.
(e) The above statutory provision for a jury trial, applicable
only where the act or thing complained of is also a crime in the
ordinary sense, and not interfering with the power to deal
summarily with contempts committed in the presence of the court, or
so near thereto as to obstruct the administration of justice, nor
purporting to extend to cases of failure or refusal to comply with
decrees requiring affirmative action, does not invade the powers of
the courts as intended by the Constitution, and is within the
regulatory power of Congress. Id.
2. Section 20 of the Clayton Act, concerning the granting of
injunctions "in any case between an employer and employees"
involving or growing out of a dispute concerning terms or
conditions of employment, includes such cases in which the
employers are railroad companies. P. 266 U. S.
3. Railroad employees who, in a dispute over wages, go out on
strike in defiance of a decision of the Railroad Labor Board, and,
in furtherance of the strike, conspire together and commit unlawful
acts in restraint of the railroad's interstate commerce, remain
"employees" of the railroad in the sense of § 20 of the Clayton
Act. P. 266 U. S.
4. In such a case, existence of the status of employment at the
time when acts constituting a contempt are committed is not
necessary in order to bring into operation the provision for jury
trial made by § 22. P. 266 U. S.
5. Abusive language, assembling in numbers, picketing, and other
acts by strikers, for the purpose of intimidating and preventing
men desirous of securing employment with a railway company,
held prima facie
violation of a penal statute of Wisconsin
(R.S. 1921, § 4466c). Id.
6. Section 22 of the Clayton Act, although reading that the
trial "may" be by the court, or, upon demand of the accused, by
jury, is to be construed, in the light of its history and purpose,
as giving the accused the absolute right of trial by jury. P.
266 U. S.
291 F. 940 (No. 246) reversed.
The first case was a certiorari to review a judgment of the
circuit court of appeals affirming a judgment of the district court
which adjudged the petitioners guilty of contempt after a trial in
which their request for a jury was denied.
The second ease presents a question certified by the circuit
court of appeals, which is set forth in the opinion, post,
p. 266 U. S.
Page 266 U. S. 62
MR. JUSTICE SUTHERLAND delivered the opinion of the Court.
These cases were argued together, and will be disposed of in one
opinion. The principal question presented in the
case, and the sole question in the
case, is whether the provision of the Clayton Act
of October 15, 1914, c. 323, 38 Stat. 738, §§ 21, 22, requiring a
jury trial in certain specified kinds of contempt
Page 266 U. S. 63
is constitutional. Subordinate questions presented in the
case are: (a) whether petitioners were, or
whether it is necessary that they should be, "employees" within the
meaning of § 20 of the act; (b) whether the acts alleged to
constitute the contempt were also criminal offenses under the
statutes of the United States or of the state where committed; (c)
whether the provision for a jury is mandatory or permissive.
The petitioners in the Michaelson
case were striking
employees of the Chicago, St. Paul, Minneapolis & Omaha Railway
Company, and, with others, were proceeded against by bill in equity
for combining and conspiring to interfere with interstate commerce
by picketing and the use of force and violence, etc. After a
hearing, a preliminary injunction was granted. Subsequently,
proceedings in contempt were instituted in the district court
charging petitioners with sundry violations of the injunction, and
a rule to show cause was issued. Upon the answer and return to the
rule, petitioners applied for a jury trial under § 22 of the
Clayton Act, but the district court denied the application and
proceeded without a jury. At the conclusion of the hearing, the
petitioners were adjudged guilty and sentenced to pay fines in
various sums, and in default of payment to stand committed to jail
until such fines were paid. Thereupon the case was taken to the
circuit court of appeals by writ of error, and by that court the
judgments were affirmed. 291 F. 940.
Is the provision of the Clayton Act, granting a
right of trial by jury constitutional? The court below held in the
negative, on the ground that the power of a court to vindicate or
enforce its decree in equity is inherent, is derived from the
Constitution as a part of its judicial power, and that Congress is
without constitutional authority to deprive the parties in an
equity court of the right of trial by the chancellor.
Page 266 U. S. 64
If the statute now under review encroaches upon the equity
jurisdiction intended by the Constitution, a grave constitutional
question in respect of its validity would be presented, and it
therefore becomes our duty, as this Court has frequently said, to
construe it, "if fairly possible, so as to avoid not only the
conclusion that it is unconstitutional, but also grave doubts upon
that score." Panama Railroad Co. v. Johnson, 264 U.
Shortly stated, the statute provides that willful disobedience
of any lawful writ, process, order, rule, decree, or command of any
district court of the United States or any court of the District of
Columbia by doing any act or thing forbidden, if such act or thing
be of such character as to constitute also a criminal offense under
any statute of the United States or law of any state in which the
act is committed, shall be proceeded against as in the statute
provided. In all such cases, the "trial may be by the court, or,
upon demand of the accused, by a jury," and "such trial shall
conform, as near as may be, to the practice in criminal cases
prosecuted by indictment or upon information." Upon conviction, the
accused is to be punished "by fine or imprisonment, or both," the
fine to be
"paid to the United States or to the complainant or other party
injured by the act constituting the contempt, or may, where more
than one is so damaged, be divided or apportioned among them as the
court may direct."
The provision for trial by jury upon demand, as we shall
presently show, is mandatory, and the question to be answered is
whether it infringes any power of the courts vested by the
Constitution and unalterable by congressional legislation. We first
inquire whether the proceeding contemplated by the statute is for a
civil or a criminal contempt. If it be the latter -- since the
proceeding for criminal contempt, unlike that for civil contempt,
is between the public and the defendant, is an independent
proceeding at law, and no part of the original cause
Page 266 U. S. 65
(Gompers v. Buck's Stove & Range Co., 221 U.
, 221 U. S.
-446, 221 U. S. 451
-- we are at once relieved of the doubt which might otherwise arise
in respect of the authority of Congress to set aside the settled
rule that a suit in equity is to be tried by the chancellor without
a jury unless he choose to call one as purely advisory. We think
the statute, reasonably construed, relates exclusively to criminal
contempts. The act or thing charged must be of such character as
also to constitute a crime. Prosecution must be in conformity with
the practice in criminal cases. Upon conviction, the accused is to
be punished by fine or imprisonment, or both. True, the fine may be
paid to the United States or to the complainant or divided among
the parties injured by the act, as the court may direct; but that
does not alter the essential nature of the proceeding contemplated
by the statute. The discretion given the court in this respect is
incidental and subordinate to the dominating purpose of the
proceeding, which is punitive, to vindicate the authority of the
court and punish the act of disobedience as a public wrong. See
Re Merchants Stock Co., Petitioner, 223 U.
, 223 U. S. 641
Matter of Christenson Engineering Co., 194 U.
, 194 U. S. 461
Merchants' Stock & Grain Co. v. Board of Trade,
398, 401, Kreplik v. Couch Patents Co.,
190 F. 565, 572.
"If the contempt savors of criminality, and the sentence is penal,
that, according to the books appears to be enough." Long
2 Russ. & M. 639, 667.
But it is contended that the statute materially interferes with
the inherent power of the courts, and is therefore invalid. That
the power to punish for contempts is inherent in all courts has
been many times decided, and may be regarded as settled law. It is
essential to the administration of justice. The courts of the
United States, when called into existence and vested with
Page 266 U. S. 66
over any subject, at once become possessed of the power. So far
as the inferior federal courts are concerned, however, it is not
beyond the authority of Congress (Ex parte
19 Wall. 505, 86 U. S.
-511; Bessette v. W. B. Conkey Co.,
194 U. S. 324
194 U. S.
); but the attributes which inhere in that power and
are inseparable from it can neither be abrogated nor rendered
practically inoperative. That it may be regulated within limits not
precisely defined may not be doubted. The statute now under review
is of the latter character. It is of narrow scope, dealing with the
single class where the act or thing constituting the contempt is
also a crime in the ordinary sense. It does not interfere with the
power to deal summarily with contempts committed in the presence of
the court or so near thereto as to obstruct the administration of
justice, and is in express terms carefully limited to the cases of
contempt specifically defined. Neither do we think it purports to
reach cases of failure or refusal to comply affirmatively with a
decree -- that is, to do something which a decree commands -- which
may be enforced by coercive means or remedied by purely
compensatory relief. If the reach of the statute had extended to
the cases which are excluded, a different and more serious question
would arise. But the simple question presented is whether Congress
may require a trial by jury upon the demand of the accused in an
independent proceeding at law for a criminal contempt which is also
a crime. In criminal contempts, as in criminal cases, the
presumption of innocence obtains. Proof of guilt must be beyond
reasonable doubt, and the defendant may not be compelled to be a
witness against himself, Gompers v. Buck's Stove & Range
p. 221 U. S. 444
The fundamental characteristics of both are the same. Contempts of
the kind within the terms of the statute partake of the nature of
crimes in all essential particulars.
"So truly are they crimes that it seems to be proved that, in
the early law, they were
Page 266 U. S. 67
punished only by the usual criminal procedure, 3 Transactions of
the Royal Historical Society, N.S. p. 147 (1885), and that, at
least in England, it seems that they still may be and preferably
are tried in that way."
Gompers v. United States, 233 U.
, 233 U. S.
-611. This is also pointed out by counsel in the case
of O'Shea v. O'Shea and Parnell,
L.R. 15 Prob.Div. 50, 61,
and, in the course of one of the opinions in that case, it is said
"The offense of appellant [criminal contempt] is certainly a
criminal offense. I do not say that it is an indictable offense,
but, whether indictable or not, it is a criminal offense, and it is
an offense, and the only offense that I know of, which is
punishable at common law by summary process."
The proceeding is not between the parties to the original suit,
but between the public and the defendant. The only substantial
difference between such a proceeding as we have here, and a
criminal prosecution by indictment or information is that, in the
latter, the act complained of is the violation of a law, and in the
former, the violation of a decree. In the case of the latter, the
accused has a constitutional right of trial by jury, while in the
former he has not. The statutory extension of this constitutional
right to a class of contempts which are properly described as
"criminal offenses" does not, in our opinion, invade the powers of
the courts as intended by the Constitution, or violate that
instrument in any other way.
We come, then, to consider the reasons which,
assuming the validity of the statute, are nevertheless urged to
preclude the right to a jury trial. The first contention is that
petitioners were not "employees" within the meaning of the act,
because, having gone out on strike, the relationship of employer
and employee had come to an end. The dispute out of which arose the
unlawful acts alleged in the bill was one between the employer, on
the one hand, and its employees, on the other, respecting terms
Page 266 U. S. 68
or conditions of employment -- namely, the scale of wages to be
paid employees of the class to which defendants belonged. This
dispute had been submitted to the Railroad Labor Board, which,
after a hearing, had fixed the scale to be paid; but the defendants
declined to abide by the action of the board, and went out on
strike, and, in furtherance thereof, conspired together and
committed various unlawful acts in restraint of respondent's
interstate commerce. The purpose of the strike was to bring about
an increase of wages. The case was obviously within the provisions
of § 20, in respect of injunctions. The court below held that,
while ordinarily this would be so, it was not so in this instance
because (1) the employer was a railroad company bound to continue
its operations in the public interest, and therefore not on an
equal footing with its employees, and (2) that, since the scale of
wages had been fixed by the Railroad Labor Board, the strike, in
effect, was against the board, a governmental instrumentality, "to
be classed with the insurrection of the Boston policemen." To say
that railroad employees are outside the provisions of the statute
is not to construe the statute, but to ingraft upon it an exception
not warranted by its terms. If Congress had intended such an
exception, it is fair to suppose that it would have said so
affirmatively. The words of the act are plain, and in terms
inclusive of all classes of employment, and we find nothing in them
which requires a resort to judicial construction. The reasoning of
the court below really does not present a question of statutory
construction, but rather an argument justifying the suppositous
exception on the ground of necessity or of policy -- a matter
addressed to the legislative, and not the judicial, authority.
Neither was the strike one against the Labor Board. It was a strike
notwithstanding the action of the board, but against the
respondent. The policemen's strike was against a governmental
employer. The Labor Board was not an employer, but an arbitrator,
whose determination, moreover, had only the force of
Page 266 U. S. 69
moral suasion. Pennsylvania Railroad Co. v. Labor
Board, 261 U. S. 72
261 U. S. 84
Moreover, it is to be observed that §§ 21 and 22, which deal with
the subject of contempts, do not contain the limitation in respect
of employment contained in § 20. Section 21 provides: "That any
who shall willfully disobey any lawful writ, process,
order, rule, decree, or command of any district court," etc.,
"shall be proceeded against for his said contempt as hereinafter
provided." Section 22 provides for a trial by jury upon demand of
the accused in all cases within the purview of the act. Whether the
general language of § 21 should be limited by construction because
it forms a part of an act dealing with unlawful restraints and
monopolies, or for any other reason, we need not now stop to
inquire. It is enough to say that, in a controversy such as we have
here at least, it does not require the existence of the status of
employment at the time the acts constituting the contempt are
committed in order to bring into operation the provision for a
trial by jury.
We take no time to discuss the contention that the acts alleged
as constituting contempt do not also constitute criminal offenses.
According to the petition for the rule and affidavits in support of
it, these consisted of abusive language, assembling in numbers,
picketing and other acts, for the purpose of intimidating and
preventing men desirous of securing employment with the railway
company from entering such employment. Prima facie,
least, this violated the statute of Wisconsin, where the acts were
committed (R.S.1921, § 4466c), *
and this is
Page 266 U. S. 70
Neither is it necessary to consider at length the final
contention that the jury provision of the statute is not mandatory,
but permissive. It is mandatory. The argument to the contrary is
based on the use of the permissive word "may" -- "such trial may be
by the court, or, upon demand of the accused, by a jury." Strictly
and grammatically considered, the word "may" limits both phrases,
"by the court" and "by a jury," but to construe it as contended in
practical effect would be to subvert the plain intent and good
sense of the statute. And this is made clear by the history leading
up to and accompanying the enactment, as well as the reports of the
committees having the bill in charge. The Judiciary Committee of
the House, in reporting the bill, said:
"The trial is by the court (1) in case no jury be demanded
by the accused;
(2) if the contempt be in the presence of the
court or so near thereto as to obstruct the administration of
justice; or (3) if the contempt be charged to be in disobedience of
any lawful writ, process, order, rule, decree or command entered in
any suit or action brought or prosecuted in the name or on behalf
of the United States. In other cases the trial is to be by
House Report No. 613, 62d Cong., 2d Sess.
The intent of Congress in adopting the provision was to give to
the accused a right of trial by jury, not merely to vest authority
in the judge to call a jury at his discretion. See Supervisors v. United
4 Wall. 435, 71 U. S.
case is here on certificate requesting the
instruction of this Court upon the following question of law:
"Do those provisions of § 22 of the Clayton Act which require a
conviction upon a jury trial as a condition precedent to punishment
for contempt, upon demand for a jury trial in the case specified,
impose a valid restriction upon the inherent judicial power of the
United States district courts? "
Page 266 U. S. 71
The facts stated in the certificate bring the case within the
principle of what has already been said, and the question must be
answered in the affirmative.
No. 246 reversed and remanded to the district court for
further proceedings in conformity with this opinion.
No. 232, answer: Yes.
"Section 4466c. Any person who by threats, intimidation, force
or coercion of any kind shall hinder or prevent any other person
from engaging in or continuing in any lawful work or employment,
either for himself or as a wage worker, or who shall attempt to so
hinder or prevent, shall be punished by fine not exceeding one
hundred dollars or by imprisonment in the county jail not more than
six months, or by both fine and imprisonment in the discretion of