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(45 S. Ct.)

privilege against self-incrimination does not fully as it does one who is also a party deextend to an examination of the bankrupt | fendant. It protects, likewise, the owner of made for the purpose of obtaining posses- goods which may be forfeited in a penal prosion of property belonging to his estate. 263 ceeding. See Counselman v. Hitchcock, 142 U. S. 676, 44 S. Ct. 33, 68 L. Ed. 501. U. S. 547, 563, 564, 12 S. Ct. 195, 35 L. Ed. 1110.

*

estate is in

[1] The right to examine the bankrupt, here in question, rests wholly on section 21a. This section provides that the court may "require any designated person, including the bankrupt and his wife, to appear in court to be examined concerning the acts, conduct, or property of a bankrupt whose process of administration. The subject-matter of the examination is thus specifically prescribed by the act. There is no provision prescribing the rules by which the examination is to be governed. These are, impliedly, the general rules governing the admissibility of evidence and the competency and compellability of

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witnesses.2 The section contains no in*dication of an intention, on the part of Congress, to take from any witness the privilege against self-incrimination. Moreover, the section makes clear the purpose not to differentiate between the bankrupt and other witnesses, nor to differentiate examinations which relate to the property from those which relate to the acts or the conduct of the bankrupt.3 This court has already decided that the privilege was not waived, either by the bankrupt's filing the schedule or by his answering orally certain questions. The contention now is that the privilege against self-incrimination ought to have been disallowed because, under the Constitution, it does not extend to the examination of a bankrupt in a bankruptcy proceeding.

[2-4] The government insists, broadly, that the constitutional privilege against self-incrimination does not apply in any civil proceeding. The contrary must be accepted as

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[5] *The government urges more strongly It claims that the a narrower contention. constitutional privilege does not relieve a bankrupt from the duty to give information which is sought for the purpose of discoverIt asserts that in England ing his estate.

such an exception to the common law privi lege prevails, and that the exception had been established there prior to the Declaration of Independence. Whatever may be the rule in England, it is clear that in America the constitutional prohibition of compulsory self-incrimination has not been so limited.

[6] The cases which hold that a bankrupt must surrender books and papers, although they contain incriminating evidence, rest upon a principle different from that here involved. Matter of Harris, 221 U. S. 274, 31 S. Ct. 557, 55 L. Ed. 732; Johnson v. United States, 228 U. S. 457, 33 S. Ct. 572, 57 L. Ed. 919, 47 L. R. A. (N. S.) 263; Ex parte Fuller, 262 U. S. 91, 43 S. Ct. 496, 67 L. Ed. 881; Dier v. Banton, 262 U. S. 147, 43 S. Ct. 533, 67 L. Ed. 915. The law requires a bankrupt to surrender his property. The books and papers of a business are a part of the bankrupt estate. Section 70a (1) being Comp. St. § 9654. To permit him to retain possession, because surrender might involve disclosure of a crime, would destroy a property right. The constitutional privilege relates to the adjective law. It does not relieve one from compliance with the substantive obligation to surrender property.

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[7] *Section 21a, on the other hand, deals

settled. The privilege is not ordinarily de- specifically and solely with the adjective

pendent upon the nature of the proceeding in which the testimony is sought or is to be used. It applies alike to civil and criminal proceedings, wherever the answer might tend to subject to criminal responsibility him who gives it. The privilege protects a niere witness as

* See People's Bank of Buffalo v. Brown, 112 F. 652, 50 C. C. A. 411; In re Pursell (D. C.) 114 F. 371; In re Josephson (D. C.) 121 F. 142; Brown v. Person, 122 F. 212, 58 C. C. A. 658; In re Hooks Smelting Co. (D. C.) 138 F. 954, 956; In re Ruos (D. C.) 159 F. 252.

Substantially the same provision was made in Act April 4, 1800, c. 19, §§ 14, 18, 24, 2 Stat. 25, 26, 28; in Act Aug. 19, 1841, c. 9, § 4, 5 Stat. 440 (in part); in Act March 2, 1867, c. 176, § 26, 14 Stat. 517, 529. See, also, Act Feb. 5, 1903, c. 487, § 7, 32 Stat, 797, 738. The purpose may have been, in part, to render the bankrupt and others competent as witnesses. Compare Ex parte Haes, [1902] 1 K. B. 98. The bankrupt (and many other witnesses) would, under the rules prevailing in the common law court at the time the earlier bankrupt laws were enacted, have been incompetent as witnesses, on the ground of interest, but for such a provision, and the wife would have been incompetent because of her particular relationship.

45 S.CT.-2

law-with evidence and witnesses. When the bankrupt appears before a commissioner under this section, he comes, like any other person, merely to testify. In that connection he may, like any other witness, assert the constitutional privilege; because the present statute fails to afford complete immunity from prosecution. If Congress should hereafter conclude that a full disclosure of the

See Ex parte Meymot, 1 Atk. 196, 198, 200; Ex parte Cossens, Buck's Cases, 531, 540; In re Heath, 2 D. & Ch. 214. The requirement under the English practice referred to is, perhaps, more like the American requirement of the filing of a schedule of assets under section 7a(8), being Comp. St. § 9591, than the submission to examination as a witness provided for in section 21a.

In re Scott (D. C.) 95 F. 815; In re Rosser (D. C.) 96 F. 305; In re Franklin Syndicate (D. C.) 114 F. 205; United States v. Goldstein (D. C.) 132 F. 789; In re Bendheim (D. C.) 180 F. 918; In re Tobias, etc. (D. C.) 215 F. 815; In re Naletsky (D. C.) 280 F. 437. Compare In re Feldstein (D. C.) 103 F. 269; In re Walsh (D. C.) 104 F. 518; In re Shera (D. C.) 114 F. 207; In re Nachman (D. C.) 114 F. 995; In re Levin (D. C.) 131 F. 388. But see Mackel v. Rochester, 102 F. 314, 42 C. C. A. 427

13(21)-Provisions of Clayton Act

providing for jury trial in contempt proceedings held available to railroad strikers, who had rejected decision of Railroad Labor Board.

bankrupt estate by the witnesses is of great- | 7. Jury
er importance than the possibility of pun-
ishing them for some crime in the past, it
can, as in other cases, confer the power of
unrestricted examination by providing com-
plete immunity. Compare Brown v. Walker,
161 U. S. 591, 16 S. Ct. 644, 40 L. Ed. 819;
Glickstein v. United States, 222 U. S. 139, 142.
32 S. Ct. 71, 56 L. Ed. 128; Ensign v.
Pennsylvania, 227 U. S. 592, 33 S. Ct. 221,
57 L. Ed. 658.

Judgment reaffirmed.

(266 U. S. 42)

MICHAELSON et al. v. UNITED STATES ex rel, CHICAGO, ST. P., M. & O. RY. CO. SANDEFUR v. CANOE CREEK COAL CO. (Argued April 9 and 10, 1924. Decided Oct. 20, 1924.)

Nos. 246 and 232.

1. Injunction 230(1)—Proceeding for violation of injunction under Clayton Act is for criminal and not civil contempt.

Proceeding for violation of injunction, under Clayton Act, §§ 21, 22 (Comp. St. §§ 1245a, 1245b), is a proceeding for criminal and not for civil contempt, and is an independent proceeding at law between the public and defendant, and no part of the original cause.

2. Contempt 30-Power to punish for contempt inherent in all courts.

The power to punish for contempt is inherent in all courts.

3. Contempt

60(1)-Presumption of innocence obtains in criminal contempt proceedIngs.

Presumption of innocence obtains in proceedings for criminal contempt.

4. Contempt 60 (3)—Proof of guilt of criminal contempt must be beyond reasonable doubt.

In contempt proceedings, proof of guilt of criminal intent must be beyond reasonable doubt.

5. Witnesses 2932-Defendant, accused of criminal contempt, cannot be compelled to testify against himself.

Defendant may not be compelled to testify against himself in criminal contempt proceeding.

6. Jury 13(21)-Provision of Clayton Act, providing for jury trial in certain contempt proceedings, held constitutional.

Clayton Act, §§ 21, 22 (Comp. St. §§ 1245a, 1245b), providing for jury trial in contempt proceedings where act complained of is also a crime, on demand of accused, held not unconstitutional impairment of inherent power of courts to punish for contempt; the proceeding being an independent proceeding at law for criminal contempt, based on act constituting crime.

Striking employés of railroad, who had refused to abide by order of Railroad Labor Board, held entitled to jury trial, under Clayton Act, 88 20-22 (Comp. St. §§ 1243d, 1245a, 1245b), in contempt proceedings for violation of injunction, since such statute does not require existence of status of employment at time acts constituting contempt are committed. 8. Injunction 223 (2)-Violation of injunction against strikers held basis for contempt proceedings.

Strikers, who used abusive language, assembled in numbers, and were guilty of picketing and other acts for purpose of intimidating prospective employés, could be convicted of contempt in proceedings under Clayton Act, §§ 20-22 (Comp. St. §§ 1243d, 1245a, 1245b), requiring the contempt to constitute a crime, since such acts prima facie, at least, violate St. Wis. 1921, § 4466c.

9. Jury 13(21)—Provision of Clayton Act providing for jury trial in contempt proceedings is mandatory.

Clayton Act, §§ 21, 22 (Comp. St. §§ 1245a, 1245b), providing for jury trial on demand of accused in contempt proceeding, where the act constitutes a crime, is mandatory.

On Writ of Certiorari to the United States Circuit Court of Appeals for the Seventh Circuit.

On Certificate from the United States Circuit Court of Appeals for the Sixth Circuit.

Contempt proceeding by the United States, on the relation of the Chicago, St. Paul. Minneapolis & Omaha Railway Company, against Sam Michaelson and others, and suit by the Canoe Creek Coal Company against S. C. Sandefur and others. Judgments against defendants in the first described proceeding were affirmed by the Circuit Court of Appeals (291 F. 940), and they bring error. The named defendant in the second described action was fined for contempt, and the Circuit Court of Appeals, on error, certified the question involved to the United States Supreme Court (293 F. 379). Judgments reversed and cause remanded in first proceeding, and question answered in second action.

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*Mr. Richard L. Kennedy, of St. Paul, Minn., for respondent Chicago, St. P., M. & O. R. Co.

For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes

62

(45 S. Ct.)

*Mr. Justice SUTHERLAND delivered the opinion of the Court.

*63

These cases were argued together and will be disposed of in one opinion. The principal question presented in the Michaelson Case, and the sole question in the Sandefur Case, is whether the provision of the Clayton Act of October 15, 1914, c. 323, 38 Stat. 738, 88 21, 22 (Comp. St. §§ 1245a, 1245b), requiring a jury trial in certain specified kinds of contempt is constitutional. Subordinate questions presented in the Michaelson Case are: (a) Whether petitioners were, or whether it is necessary that they should be, "employees" within the meaning of section 20 of the act (Comp. St. § 1243d); (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.

Railroad Co. v. Johnson, 264 U. S. 375, 44
S. Ct. 391, 68 L. Ed. 748.

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 com

plainant 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."

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The petitioners in the Michaelson Case were striking employees of the Chicago, St. Paul, Minneapolis & Omaha Railway Company, and, with others, were proceeded [1] The provision for trial by jury upon against by bill in equity for combining and conspiring to interfere with interstate com- demand, as we shall presently show, is manmerce by picketing and the use of force and datory, and the question to be answered is violence, etc. After a hearing, a preliminary whether it infringes any power of the courts injunction was granted. Subsequently pro-vested by the Constitution and unalterable ceedings in contempt were instituted in the by congressional legislation. We first inquire District Court, charging petitioners with sun-whether the proceeding contemplated by the dry violations of the injunction, and a rule to statute is for a civil or a criminal contempt. show cause was issued. Upon the answer and If it be the latter-since the proceeding for return to the rule, petitioners applied for a criminal contempt, unlike that for civil conjury trial under section 22 of the Clayton Act; tempt, is between the public and the defendbut the District Court denied the application ant, is an independent proceeding at law, and and proceeded without a jury. At the concluno part of the original cause *(Gompers v. sion of the hearing, the petitioners were ad- Buck's Stove & Range Co., 221 U. S. 418, 444judged guilty and sentenced to pay fines in various sums, and in default of payment to 446, 451, 31 S. Ct. 492, 55 L. Ed. 797, 34 L. R. A. [N. S.] 874)-we are at once relieved stand committed to jail until such fines were paid. Thereupon the case was taken to the of the doubt which might otherwise arise in respect of the authority of Congress to set Circuit Court of Appeals by writ of error, and by that court the judgments were af- 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 pracUpon conviction the tice in criminal cases. 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, *If the statute now under review encroach- as the court may direct; but that does not es upon the equity jurisdiction intended by alter the essential nature of the proceeding the Constitution, a grave constitutional ques- contemplated by the statute. The discretion tion in respect of its validity would be pre- given the court in this respect is incidental sented; and it therefore becomes our duty, and subordinate to the dominating purpose as this court has frequently said, to construe of the proceeding which is punitive to vinit, "if fairly possible, so as to avoid, not only dicate the authority of the court and punish the conclusion that it is unconstitutional, but the act of disobedience as a public wrong. also grave doubts upon that score." Panama | See Re Merchants Stock Co., Petitioner, 223

firmed. 291 F. 940.

First. 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.

*64

U. S. 639, 641, 32 S. Ct. 339, 56 L. Ed. 584;

Matter of Christenson Engineering Co., 19 U. S. 458, 461, 24 S. Ct. 729, 48 L. Ed. 1072; Merchants' Stock & Grain Co. v. Board of Trade, 187 F. 398, 401, 109 C. C. A. 230; Kreplik v. Couch Patents Co., 190 F. 565. 572, 111 C. C. A. 381. "If the contempt savors of criminality, and the sentence is penal, that according to the books appears to be enough." Long Wellesley's Case, 2 Russ. & M. 639, 667. [2-6] 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 jurisdiction *66

*67

United

early law they were *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.
States, 233 U. S. 604, 610-611, 34 S. Ct. 693,
58 L. Ed. 1115, Ann. Cas. 1915D, 1044. 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 (page 64):

"The offense of appellant [criminal contempt]
I do not say
is certainly a criminal offense.
that it is an indictable offense, but, whether
it is an offense, and the only offense that I know
indictable or not, it is a criminal offense, and
of, which is punishable at common law by sum-
mary 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.

*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 Robinson, 19 Wall. 505, 510-511, 22 L. Ed. 205; Bessette v. W. B. Conkey Co., 194 U. S. 324, 326, 24 S. Ct. 665, 48 L. Ed. 997); 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 [7] Second. We come, then, to consider the with the power to deal summarily with contempts committed in the presence of the court reasons which, assuming the validity of the or so near thereto as to obstruct the admin-statute, are nevertheless urged to preclude istration 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.

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

*68

If the reach of the statute had extended to on the other, respecting terms *or conditions the cases which are excluded a different and of employment, namely, the scale of wages more serious question would arise. But the to be paid employees of the class to which simple question presented is whether Con- defendants belonged. This dispute had been gress may require a trial by jury upon the submitted to the Railroad Labor Board, demand of the accused in an independent which, after a hearing, had fixed the scale to proceeding at law for a criminal contempt be paid; but the defendants declined to abide which is also a crime. In criminal contempts, by the action of the board and went out on as in criminal cases, the presumption of in- strike, and in furtherance thereof conspired nocence obtains. Proof of guilt must be be- together and committed various unlawful yond reasonable doubt and the defendant may acts in restraint of respondent's interstate not be compelled to be a witness against him-commerce. The purpose of the strike was self, Gompers v. Buck's Stove & Range Co., to bring about an increase of wages. The supra, p. 444 (31 S. Ct. 492.) 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

case was obviously within the provisions of section 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 com pany bound to continue its operations in the

(45 S.Ct.)

pany from entering such employment. Prima
acie, at least, this violated the statute of
Wisconsin where the acts were committed (R.
S. 1921, § 4466c),1 and this is enough.
*70

"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 accompany

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 instru[9] *Neither is it necessary to consider at mentality, "to be classed with the insurrection of the Boston policemen." To say that length the final contention that the jury prorailroad employees are outside the provisions vision of the statute is not mandatory but of the statute, is not to construe the statute, permissive. It is mandatory. The argument but to ingraft upon it an exception not warto the contrary is based on the use of the perranted by its terms. If Congress had intend-missive word "may”—“such trial may be by ed such an exception, it is fair to suppose that the court, or, upon demand of the accused, it would have said so affirmatively. The by a jury." Strictly and grammatically conwords of the act are plain and in terms in-sidered, the word “may” limits both phrases, clusive 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 supposititious ex-ing the enactment, as well as the reports of ception on the ground of necessity or of pol- the committees having the bill in charge. icy—a matter addressed to the legislative and The Judiciary Committee of the House, in renot the judicial authority. Neither was the porting the bill, said: 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 *moral suasion. Pennsylvania Railroad Co. v. Labor Board, 261 U. S. 72, 84, 43 S. Ct. 278, 67 L. Ed. 536. Moreover, it is to be observed that sections 21 and 22, which deal with the subject of contempts, do not contain the limitation in respect of employment contained in section 20. Section 21 (Comp. St. § 1245a) provides:

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"That any person 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 section 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.

[8] 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 com

"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 jury." 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 States, 4 Wall. 435, 446, 447, 18 L. Ed. 419.

The Sandefur Case is here on certificate requesting the instruction of this court upon the following question of law:

"Do those provisions of section 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?"

*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.

1 "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 im

prisonment in the county jail not more than six months, or by both fine and imprisonment in the discretion of the court."

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