Evening star. [volume] (Washington, D.C.) 1854-1972, 1909-11-02
CHIEF JUSTICE SHEPARD
FILES DISSENTING OPINION
Holds That Lower Court Was With.
out Authority to Issue Order.
ATTEMPT TO APPEAL PROBABLE
Defendants Meanwhile to Remain at
Liberty Under Bail-Lawyers
Divided Over Finality of
Present Decision.
Gompers Absent.

The decree of Justice Wright OF
the District Supreme Court, ad-
judging Samuel Gompers. Frank
Morrison and John Mitchell, labor
leaders. in contempt of court and
sentencing them to serve terms OF
Jail imprisonment of twelve, nine
and six months, respectively, was
affirmed today by the District
Court of Appeals in an opinion
by Mr.. Justice Van Orsdel. Mr..
Chief Justice Shepard filed a dis.
senting opinion and Mr.. Justice
Robb a concurring opinion.
Justice Van Orsdel holds that the con-
tempt is criminal and not civil Being
criminal. il involves no element of per-
"onal injury. IL is directed against the
lower and dignity of the court. he says,
and private parties have little If any
interest In the proceedings for its punish
ment. The failure to include in the rec
ord bill OF exception or its equivalent
closes the record. and the court must pre-
lime that the evidence was sufficient to
tablish the truth of each charge con-
,ined in the petition Of which ,..e trial
Istice found the defendants guilty.
The court also holds that the acts of
tie defendants set out I'm the record were
designed to incite their followers (, a
disooedience of the courts order 1t is
held to be unnecessary to consider the
question whether the defend MT -
found guilty Of violating the portions of
he order stricken out on appeal, because
the portions of the original decree not af-
fected had been violated and such viola
tions were sufficient to sustain the juug-
ment of Justice Wright.
Will Attempt an Appeal.
An appeal TO the United States Su-
preme Court will be attempted by the
labor leaders. announced by Mr..
Gompers. in a recent issue OF the Fed
q ationist. The right of appeal is a
matter of controversy. Some lawyers
hold that under the decision that the
contempt is a criminal offense tne
District Court OF Appeals has the Ia
ay as IL has in all criminal cases
'thers. however. contend that as the
institutional right OF free speech and
freedom of the press is involved
ompers and his associates may prose
'te an appeal.
Until the question of the right of
peal is determined the mandate of
te court of appeals will not issue
ompers. Mitchell and Morrison will
1ntinue at liberty under their bonds
It'll the mandate is received by the
istrict Supreme Court.
Chief Justice Shepard's Dissent.
'hief Justice Shepard, i'm dissenting,
d:
Convinced that the court was without
thority to make the only order which
defendants, Gompers, Mitchell and
prison can be said to have disobeyed
can have no other opinion than that
9 decree should be reversed
As regards the conclusion that this
4 proceeding must be regarded as criminal
J solely, and i'm consequence that the evil
dence on which the conviction rests can
! oe considered. because not presented in
a iii OF exceptions reserved on the hear
ng, j will content myself with saying
that i am not clearly convinced that il
must he so regarded. THE complaint was
made by the complainant on whose be-
half the injunction had been granted. and
for its own redress. No fine was imposed
on behalf of the United States The re.
lief sought in the original bill was not
pecuniary. The punishment by imprison-
ment in disobedience of the writ was the
only way in which the relief could be
secured
The order was announced Decembe,
~. 1907; entered December IL 1907: but
no bond was given until December 23
n1. The specific charge is that aftel
the granting OF the order and before
the giving OF the bond the respondents
cion1pers and Morrison. FASTENED to de
post in the mails the already printed
'number OF the January Federationist
'ch contained the publication of th'
plsinants' name in the unfair list
not charged that any subsequen
OF the journal contained simila
ication. Some general allegations
Getting the circulation OF the Janu
number of the Federationist are toe
9 to form the foundation for Grim
charge and conviction.
he gist OF the charge is this rushing
the journal III the mails between
smber IL and - The decree con
ng the respondents cannot be sun
ed on this charge because the ordei
the Injunction did not become opera
and effective before compliance witt
precedent condition"
Right of Free Speech.
10 the speeches made by Mr.. Com
the chief justice said the lansuag
was In bad taste under all c'r-um
ces. yet seems to have been dire ctet
he assertion of the right of fre
IN and free publication. for whicl
respondents were then and are nov
ending There IL another and stronge
IN for my dissent as far as the de
e.. ants Morrison and Gompers are I'm
Folved. The specific acts charged agains
hem relate wholly to declarations ant
publications which violate the prelimi
i9-' injunction as issued. | have hereto
expressed the opinion that much o
injunction order was null and vol,
use opposed to tile constitutions
sion concerning the freedom o
n and of the press Subsequent re
On has confirmed this view I con
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