#### Vilter Manufacturing Company, Appellant, vs. Humphrey, imp., Respondent.

*September 3*

September *24, 1907.*

*Contempt: Civil or criminal proceeding: Appealable order: Yiolationi. of injunction: Peaceful picketing: Punishment.*

1. Where disobedience of an injunctional order by a party to the-action is both a civil and a criminal contempt, if the proceeding to punish it is entitled in the action in which the order was-, made and charges injury to the rights and remedies of the opposing party by reason of the violation, such proceeding is a. civil proceeding and an appeal lies from a final order therein adjudging that the party charged did not violate the injunc-tional order and is therefore not guilty of contempt.

2. The appeal from such an order brings before the appellate court. only the question of fact whether the respondent violated the-injunctional order, where such injunctional order, even though it may have been erroneous, was within the jurisdiction of the-court malting it.

3. Respondent’s own testimony in this case, showing that he picketed the premises of the appellant company with other strikers. for the purpose of preventing men from going to work for the • company and with the intention of compelling the company to-, accede to the demands of the union and conduct its business in the manner which the union prescribed, is *held*to show that he - violated an injunctional order expressly commanding him not. to do those things.

4. A finding of the court below that respondent did not violate the-injunctional order is construed to mean that the court believed that he had committed no .overt acts of violence or abuse, but. had simply done peaceful picketing. That being accepted as. the fact, and no money loss being shown for which indemnifica- ■ tion should be adjudged, a nominal fine only is imposed upon respondent, under sec. 3490, Stats. (1898), together, with the-costs and expenses of the proceedings.

Aeebal from an. order of the circuit court for- Milwaukee ■ county: James J. .Dice, Judge.

*Reversed.*

Tbis is an appeal from an order denying a motion to punish the respondent for contempt of court in violating an in-junctional order. The action was in equity to enjoin strikers, *588and labor unions from'interfering with the plaintiff’s business. The action was brought against certain unincorporated lodges of the Iron Moulders’ Union, as well as against certain individuals, including the respondent, alleged to be members of such unions. The plaintiff is a manufacturing corporation located at Milwaukee operating a large iron foundry, and it charges in its complaint, that the defendants con-, spired together to compel the plaintiff to grant certain demands of the union with regard to piece work, the employment of nonunion men and apprentices, weekly payment of wages, etc., and that on the plaintiff’s refusal to accede to such demands the defendants who were in the employ of the plaintiff struck on the 2d day of May, 1906; that after said strike, in furtherance of such conspiracy, the defendants, by picketing and congregating in large numbers around plaintiff’s shop, by threatening plaintiff’s remaining employees with violence, by persuasion, and by other means, have carried on the conspiracy to unlawfully compel plaintiff to grant such demands, to the great injury of plaintiff’s business; and a perpetual injunction against all acts tending or intended to compel the plaintiff to operate its plant upon the terms so demanded was prayed for.

Upon this complaint and certain corroborating affidavits a temporary injunctional order was obtained from a court commissioner August 3, 1906, couched in very sweeping terms, restraining the defendants, among other things, from interfering in any way with the plaintiff’s business or property, from compelling, or attempting to compel, by threats, intimidation, fraud, persuasion, or violence, any of the plaintiff’s employees from leaving its employ or any other person from entering its employ, from congregating about the plaintiff’s shop or picketing or guarding the streets for such purpose, from assaulting employees, or going to their homes to -intimidate or coerce them, from persuading or inducing any *589person to join said conspiracy, and “from doing any act tending or intended to compel tbe plaintiff against its will or tbe will of its officers to operate its factory or employ or discharge any workmen in any manner or upon any terms prescribed by any association or union, or to refrain against its will or tbe will of its officers from operating its said factory in any lawful manner.”

Tbe issuance of tbis injunction was known to tbe-respond-ent *Humphrey.*On tbe lOtb of October, 1906, an order to show cause, based upon affidavits charging violation of tbe injunction by tbe respondent, was issued, in which it was recited that it appeared “that such violation and misconduct were calculated to and actually did defeat, impede, and prejudice tbe rights and remedies of tbe plaintiff,” and respondent was required to show cause why be should not be punished for such alleged misconduct and violation of tbe order. Tbe affidavits on which the order was based charged tbe respondent with continuous picketing of tbe plaintiff’s premises since tbe service of tbe injunctional order upon him, also with several specific acts of verbal abuse of tbe plaintiff’s employees while on picket duty. Said affidavits further set forth other acts of abuse and violence on tbe part of tbe strikers, and alleged generally that tbe respondent and tbe other strikers committed such acts in furtherance of said conspiracy and for tbe purpose of intimidating and driving out of employment tbe plaintiff’s employees, and thereby caused a reign of fear and terror to exist among such employees, to tbe great damage of tbe plaintiff’s business.

Upon tbe bearing of tbe order to show cause considerable oral testimony was taken, and upon tbe conclusion of the trial tbe court made an order denying tbe motion, on tbe ground tbe respondent bad “not committed any act in violation of the said temporary injunction, and that be is not in contempt for any violation of said order.”

Eor tbe appellant there were briefs by *Turner, Hunter &*
      *590
      *Goff,*attorneys, and *W. J. Turner,*of counsel, and oral argument by *W. J. Turner.*

For the respondent there was a brief by *Rubin ■& Zabel,*attorneys, and W. *B. Rubin,*of counsel, and oral argument by *Mr. Rubin.*

WiNsnow, J.

It is very plain by the terms of the order to show cause that this is a proceeding seeking to punish a party to an action, under subd. 3, sec. 3477, Stats. (1898), for disobedience of a lawful order of the court. Such a pro-needing is brought for the primary purpose of protecting the rights' of the opposite party, and is a civil proceeding. Where .it is desired to punish an act as a criminal contempt, the proceeding should be brought in the name of the state, under sec. 2565 *ei seq.,*Stats. (1898). This was clearly pointed out in *Emerson v. Huss,*127 Wis. 215, 106 N. W. 518. The latter proceeding is primarily for the purpose of vindicating the dignity of the court and enforcing respect for its authority. There are doubtless some acts which are civil as well as criminal contempts. The wilful disobedience of an order of the court by a party to the action would seem to be such an act if the fights or remedies of the opposing party are injured or prejudiced thereby. See subd. 3, sec. 2565, and subd. 3, sec. 3477, Stats. (1898). In such case the form in which the proceeding is brought will necessarily determine its character. If. the proceeding is brought and prosecuted in the name of the state, it should be held to be a criminal proceeding, under sec. 2565, *sufra.*If, however, as in the present case, it be entitled in the civil action in which the alleged violated order was made and charges injury to the rights or remedies of the opposing party by reason of the violation, it is plainly a civil proceeding, under sec. 3477, *sufra,*brought primarily in the interest of the aggrieved party. The proceeding before us was therefore a civil proceeding, and hence an appeal lies from the final order.

*591The appeal, however, brings before us only the question of fact, namely, whether it was proven that the respondent violated the injunctional order. We are not concerned with “the much-debated question whether there may lawfully be peaceful picketing to carry out the purposes of a strike. The injunctional order in question was very broad and sweeping in its terms, and not only prohibited all picketing which •should intimidate or obstruct plaintiff’s employees, but also prohibited the doing of any act tending or intended to compel the plaintiff to operate its factory or employ or discharge workmen in the manner or upon the terms demanded by the union. The order in question may have been too broad, but it was within the jurisdiction of the commissioner, and if ■erroneous the remedy was by motion to modify its terms, not by disregarding them. The orders of a court having jurisdiction must be obeyed. If they can with impunity be disregarded they should never be made. A court which makes such orders can give no good reason for its existence. It should be abolished. It is not a court in any true sense •of the term.

The question whether the respondent disobeyed this sweeping injunctional order is not open to doubt under the respondent’s own evidence. It is true that he denies that he .•at any time interfered with plaintiff’s employees, or called them names, or endeavored to dissuade them from working for the plaintiff or to coerce them; but he admits that he continuously picketed the plaintiff’s premises with other strikers from the time of the making of the injunctional' order until the commencement of the contempt proceedings, and that this was done in "pursuance of the strike, in furtherance of its purposes, and under the direction of the strike leaders. He further testified as follows:

> “A strike is carried on by me and those associated with me to compel the employers to take us and those associated with us back on the terms proposed by our committee, and *592that is wbat I bave been working for right along, and every act I have done has been for that purpose. I understand every act done by the other members of the union and the strikers is done for that purpose. *Q.*And you understand, do you not, that if' you and those associated with you can prevent handy men and your union from going to work in the. foundry you win the strike, don’t you? *A.*Tes, sir; that is what all of us were trying to do. All of us were engaged in that, and-whatever any of us did, as far as I know, was done toward the accomplishment of that end.”

Here is a distinct and unmistakable admission that the picketing which he did was intended to compel the plaintiff to accede to the demands of the union and conduct its business in the manner which the union prescribed. This was precisely what the in junctional order commanded him not to do, in practically so many words. Whether the order was not too sweeping in its terms we do not decide. The question is not before us. While it stood it was respondent’s duty to obey it. If he thought it too broad he should have moved to modify it.

The fact of the respondent’s violation of the injunctional order being undisputedly shown by his own evidence, it is evident that the court’s finding that he had not violated the order is erroneous. We construe this finding to mean that the court believed the respondent’s testimony to the effect that he had committed no act of violence or abuse, but had simply done peaceful picketing. We are unable to say that this conclusion is against the clear preponderance of the evidence, and hence we accept it as a fact. No actual money loss was shown as the result of the respondent’s acts. Hence no indemnification should have been adjudged, but simply a fine under sec. 3490, Stats. (1898). In view of the conclusion of the trial court as to overt acts of violence or abuse we think the fine should not be large, but should be fixed at what may be called practically a nominal sum, *i. e.*$10, together with the costs and expenses of the proceedings.

*593
      *By the Oourt.*— Order reversed, and proceeding remanded witb directions to enter an order adjudging tbe defendant guilty of contempt and imposing a fine in accordance witb tbe statute and as in tbis opinion indicated.