# United States v. United Mine Workers of America/Concurrence-dissent Black

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* Concurrence/Dissent Black
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Mr. Justice BLACK and Mr. Justice DOUGLAS, concurring in part and dissenting in part.
For the reasons given in the Court's opinion, we agree that neither the Norris-LaGuardia Act nor the War Labor Disputes Act barred the Government from obtaining the injunction it sought in these proceedings. The 'labor disputes' with which Congress was concerned in the Norris-LaGuardia Act were those between private employers and their employees. As to all such 'labor disputes,' the Act drastically limited the jurisdiction of federal courts; it barred relief by injunction except under very narrow circumstances, whether injunction be sought by private employers, the Government, or anyone else. But the attention of Congress was neither focused upon, nor did it purport to affect, 'labor disputes', if such they can be called, between the Government and its own employees. There was never an intimation in the progress of the Act's pa sage that a labor dispute within the Act's meaning would arise because of claims against the Government asserted collectively by employees of the Interior, State, Justice, or any other Government department. Congress had never in its history provided a program for fixing wages, hours, and working conditions of its employees by collective bargaining. Working conditions of Government employees had not been the subject of collective bargaining, nor been settled as a result of labor disputes. It would require specific congressional language to persuade us that Congress intended to embark upon such a novel program or to treat the Government employer-employee relationship as giving rise to a 'labor dispute' in the industrial sense.
We have no doubt that the miners became Government employees when the Government took over the mines. It assumed complete control over the mines and their operation. The fact that it utilized the managerial forces of the private owners does not detract from the Government's complete authority. For whatever control Government agents delegated to the private managers, those agents had full power to take away and exercise themselves. If we thought, as is here contended, that the Government's possession and operation of the mines were not genuine, but merely pretended, we should then say that the Norris-LaGuardia Act barred these proceedings. For anything less than full and complete Government operation for its own account would make this proceeding the equivalent of the Government's seeking an injunction for the benefit of the private employers. We think the Norris-LaGuardia Act prohibits that. But as we read the War Labor Disputes Act and the President's order taking over the mines against the background of circumstances which prompted both, we think, apparently contrary to the implications of the regulations, that the Government operates these mines for its own account as a matter of law; and those who work in them, during the period of complete Government control, are employees of the Government.
Since the Norris-LaGuardia Act is inapplicable, we agree that the District Court had power in these proceedings to enter orders necessary to protect the Government against an invasion of the rights it asserted, pending adjudication of the controversy its complaint presented to the court. It is therefore unnecessary for us to reach the question of whether the District Court also had power to enter these orders under the doctrine of United States v. Shipp, 203 U.S. 563, 27 S.Ct. 165, 51 L.Ed. 319, 8 Ann.Cas. 265. We agree that the court had power summarily to coerce obedience to those orders and to subject defendants to such con itional sanctions as were necessary to compel obedience. And we agree that in such civil contempt proceedings to compel obedience, it was not necessary for the court to abide by all the procedural safeguards which surround trials for crime. Without such coercive powers, courts could not settle the cases and controversies before them. Courts could not administer justice if persons were left free pending adjudication to engage in conduct which would either immediately interrupt the judicial proceedings or so change the status quo of the subject matter of a controversy that no effective judgment could be rendered. Disorder in the courtroom, or so near to it as to interrupt a trial, and disobedience of an affirmative court order, are typical examples of offenses which must necessarily be dealt with summarily. To remove such imminent interference with orderly judicial proceedings, courts must have power to act immediately. In recognition of this fact, the contempt power came into existence. This power is of ancient lineage, has always been exercised by our courts, and has the express recognition of Congress under the name of contempt. Rev.Stat. § 725, 28 U.S.C. § 385, 28 U.S.C.A. § 385. Where the court exercises such coercive power, however, for the purpose of compelling future obedience, those imprisoned 'carry the keys of their prison in their own pockets,' In re Nevitt, 8 Cir., 117 F. 448, 461; by obedience to the court's valid order, they can end their confinement; and the court's coercive power in such a 'civil contempt' proceeding ends when its order has been obeyed. Gompers v. Buck's Stove & Range Co., 221 U.S. 418, 441, 445, 31 S.Ct. 492, 498, 499, 55 L.Ed. 797, 34 L.R.A.,N.S., 874. See also Doyle v. London Guaranty & Accident Co., 204 U.S. 599, 607, 27 S.Ct. 313, 315, 51 L.Ed. 641. The District Court did not enter a conditional decree here. But this Court has modified the District Court's decree to provide as part of the judgment such a coercive sanction in the form of a conditional fine. We agree with the Court's decision in this respect.
The Gompers decision and many others have pointed out that the object of such coercive contempt proceedings is not to punish for an offense against the public, but to compel obedience to valid court orders. Yet the decision of this Court also approves unconditional fines of criminal punishment for past disobedience. We cannot agree to this aspect of the Court's judgment. At a very early date this Court declared, and recently it has reiterated, that in contempt proceedings courts should never exercise more than 'the least possible power adequate to the end proposed.' Anderson v. Dunn, 6 Wheat. 204, 231, 5 L.Ed. 242; In re Michael, 326 U.S. 224, 227, 66 S.Ct. 78.
In certain circumstances criminal contempt culminating in unconditional punishment for past disobedience may well constitute an exercise of 'the least possible power adequate to the end proposed.' Thus in situations which would warrant only a use of coercive sanctions in the first instance, criminal punishment might be appropriate at a later stage if the defendant should persist in disobeying the order of the court. Without considering the constitutional requisites of such criminal punishment, we believe the application of it inappropriate and improper here. The imposition of criminal punishment here was an exercise of far more than 'the least possible power adequate to the end proposed.' For here the great and legitimate 'end proposed' was affirmative action by the defendants to prevent interruption of coal production pending final adjudication of the controversy. Coercive sanctions sufficient to accomplish this end were justified. From the record we have no doubt but that a conditional civil sanction would bring about at least as prompt and unequivocal obedience to the court's order as would criminal punishment for past disobedience. And this would accomplish a vindication of the District Court's authority against a continuing defiance. Consequently, we do not believe that the accomplishment of the justifiable 'end proposed' called for summary criminal punishment which is designed to deter others from disobedience to court orders, or to avenge a public wrong, rather than the imposition of a coercive sanction. And for the reasons stated by Mr. Justice Rutledge, we think that the flat $700,000 criminal fine against the defendant union is excessive by constitutional and statutory standards.
In determining whether criminal punishment or coercive sanction should be employed in these proceedings, the question of intent-the motivation of the contumacy-becomes relevant. Difficult questions of law were presented by this case. It is plain that the defendants acted willfully for they knew that they were disobeying the court's order. But they appear to have believed in good faith, though erroneously, that they were acting within their legal rights. Many lawyers would have so advised them. This does not excuse their conduct; the whole situation emphasized the duty of testing the restraining order by orderly appeal instead of disobedience and open defiance. However, as this Court said in Cooke v. United States, 267 U.S. 517, 538, 45 S.Ct. 390, 395, 69 L.Ed. 767, 'the intention with which acts of contempt have been committed must necessarily and properly have an important bearing n the degree of guilt and the penalty which should be imposed.'
We think it significant that the conduct which was prohibited by the restraining order for violation of which these defendants have been punished for contempt is also punishable under the War Labor Disputes Act. That Act provides a maximum punishment of $5,000 fine and one year imprisonment for those who interfere with the operation of mines taken over by the United States. Had the defendants been tried under that statute, their punishment would have been limited thereby and in their trial they would have enjoyed all the constitutional safeguards of the Bill of Rights. Whatever constitutional safeguards are required in a summary contempt proceeding, whether it be for criminal punishment, or for the imposition of coercive sanction, we must be ever mindful of the danger of permitting punishment by contempt to be imposed for conduct which is identical with an offense defined and made punishable by statute. In re Michael, 326 U.S. 224, 226, 66 S.Ct. 78, 79.
The situation of grave emergency facing the country when the District Court acted called for the strongest measures-measures designed to produce quick and unqualified obedience of the court's order. If the $10,000 fine on defendant Lewis and the $3,500,000 fine on the defendant union be treated as coercive fines, they would not necessarily be excessive. For they would then be payable only if the defendants continued to disobey the court's order. Defendants could then avoid payment by purging themselves. The price of continued disobedience would be the amount of the fines. See Doyle v. London Guaranty & Accident Co., supra, 204 U.S. at page 602, 27 S.Ct. at page 313, 51 L.Ed. 641. The fines would be fixed so as to produce the greatest likelihood that they would compel obedience.
We should modify the District Court's decrees by making the entire amount of the fines payable conditionally. On December 7, 1946, Mr. Lewis directed the mine workers to return to work until midnight, March 31, 1947. But, so far as we are aware, the notice which purported to terminate the contract has not been withdrawn. Thus, there has been, at most, only a partial compliance with the temporary injunction.
Hence our judgment should provide that the defendants pay their respective fines only in the event that full and unconditional obedience to the temporary injunction, including withdrawal of the notice which purported to terminate the contract, is not had on or before a day certain.

## Notes

1 An analogy is a taking by the Government of a leasehold interest in property in whole or in part. See United States v. Petty Motor Co., 327 U.S. 372, 66 S.Ct. 372.
2 Section 9 of the Selective Service Act, 54 Stat. 892, 50 U.S.C.App. § 309, 50 U.S.C.A.Appendix, § 309, granted power 'to take immediate possession of any * * * plant * * * and through the appropriate branch, bureau, or department of the Army or Navy to manufacture therein such product * * * as may be required * * *.' And it provides for payment: 'The compensation to be paid * * * as rental for use of any manufacturing plant while used by the United States, shall be fair and just * * *.' Section 3 of the War Labor Disputes Act, 57 Stat. 164, 50 U.S.C.App.Supp. V § 309, 50 U.S.C.A.Appendix, § 309, extended this authority to include power to take immediate possession of any 'mine * * * equipped for the manufacture, production, or mining of any articles or materials which may be required for the war effort * * * whenever the President finds * * * and proclaims that there is an interruption of the operation of such * * * mine * * * as a result of a strike or other labor disturbance * * * and that the exercise of such power and authority is necessary to insure the operation of such * * * mine * * * in the interest of the war effort.'
3 See e.g., Cooke v. United States, 267 U.S. 517, 534-537, 45 S.Ct. 390, 394, 395, 69 L.Ed. 767; Fox, Contempt of Court (1927) B; Beale, Contempt of Court, 21 Harv.L.Rev. (1908) 161, 169-170.
4 'As early as the time of Richard III it was said that the chancellor of England compels a party against whom an order is issued by imprisonment; (2 R. III, 9, pl. 22) and a little later it was said in the chancery that 'a decree does not bind the right, but only binds the person to obedience, so that if the party will not obey, then the chancellor may commit him to prison till he obey, and that it is all the chancellor can do.' (27 H. VIII, 15.) This imprisonment was by no means a punishment, but was merely to secure obedience to the writ of the king. Down to within a century it was very doubtful if the chancellor could under any circumstances inflict punishment for disobedience of a decree. If the decree commanded the defendant to transfer property, the chancellor acquired power as early as the sixteenth century to sequester the property as security for performance; but if the decree were for the doing of any other act, or were a decree for an injunction, the chancellor was helpless if he could not compel obedience by imprisonment. * * * In any case the contempt of a defendant who had violated a decree in chancery could be purged by doing the act commanded and paying costs; or, if his disobedience had been the violation of a negative injunction, he could purge himself of contempt by undoing what he had done and paying costs.' Beale, supra.
5 'In the case of contempt in violating an order or decree of a court of equity, we have an entirely different problem. * * * If the court limits itself to its proper action in such cases, namely, process of imprisonment merely to prevent the violation of the decree, and if the imprisonment is to cease as soon as the danger of disobedience has ceased, the jury, hich is thought necessary to pass upon the desert of a defendant to suffer punishment is not required. * * * So far, therefore, as popular clamor demands a trial by jury in such case, it seems to go beyond the requirements of justice; and the statutes which commit the trial of questions of fact in such process of a jury are not likely permanently to prove satisfactory. This statement, however, is to be limited to cases of merely preventive imprisonment. Where the court inflicts a definite term of imprisonment by way of punishment for the violation of its orders, the case does not differ, it would seem, from the case of criminal contempt out of court, and regular process and trial by jury should be required.' Id. 173, 174.
6 See also In re Debs, 158 U.S. 564, 15 S.Ct. 900, 39 L.Ed. 1092; Gompers v. Buck's Stove & Range Co., 221 U.S. 418, 31 S.Ct. 492, 55 L.Ed. 797, 34 L.R.A., N.S., 874; Gompers v. United States, 233 U.S. 604, 610, 611, 34 S.Ct. 693, 695, 696, 58 L.Ed. 1115; Ex parte Grossman, 267 U.S. 87, 45 S.Ct. 332, 69 L.Ed. 527, 38 A.L.R. 131; Ex parte Hudgings, 249 U.S. 378, 383, 39 S.Ct. 337, 339, 63 L.Ed. 656, 11 A.L.R. 333; Michaelson v. United States, 266 U.S. 42, 45 S.Ct. 18, 69 L.Ed. 162, 35 A.L.R. 451; Blackmer v. United States, 284 U.S. 421, 440, 52 S.Ct. 252, 256, 76 L.Ed. 375; Nye v. United States, 313 U.S. 33, 61 S.Ct. 810, 85 L.Ed. 1172; Bridges v. State of California, 314 U.S. 252, 264, 62 S.Ct. 190, 194, 86 L.Ed. 192, 159 A.L.R. 1346; Pendergast v. United States, 317 U.S. 412, 63 S.Ct. 268, 87 L.Ed. 368; In re Bradley, 318 U.S. 50, 63 S.Ct. 470, 87 L.Ed. 500. Frankfurter and Landis, Power of Congress Over Procedure in Criminal Contempts in Inferior Federal Courts, 37 Harv.L.Rev. 1010, 1043-1045 (1924) and authorities there collected; Nelles and King, Contempt by Publications in the United States, 28 Col.L.Rev. 401 (1928).
This work is in the public domain in the United States because it is a work of the United States federal government (see 17 U.S.C. 105).
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