On appeal from the Superior Court, Appellate Division.
For reversal -- Chief Justice Weintraub, and Justices Jacobs, Francis, Proctor, Hall and Haneman. For affirmance -- None. The opinion of the court was delivered by Weintraub, C.J. Francis, J. (dissenting in part). Jacobs, J., votes to reverse on the merits for the reasons expressed in Part II of the majority opinion. Francis, J., concurring in result.
[34 NJ Page 335] Plaintiff moved for an order holding defendants in contempt for failure to comply with a final judgment. That judgment, entered with defendants' consent,
had ordered them to "cease violating the New Jersey Air Pollution Control Code, as promulgated and adopted by the Air Pollution Control Commission" on premises which they operate as a refuse dump. The Code in turn provided that "No person shall cause, suffer, allow or permit open burning of refuse * * *." The charge revolved about the outbreak of fires, the origin of which was unknown. The trial court found plaintiff had not sustained its burden "to establish a willful and deliberate" act violative of the judgment and hence denied the motion. The Appellate Division found defendants "in civil contempt of the injunction" and reversed for further proceedings to which we will later refer. 61 N.J. Super. 363 (1960). We granted defendants' petition for certification. 33 N.J. 119 (1960).
Defendants contend the proceedings were for "criminal contempt" and hence there could be no appeal from the trial court's judgment in their favor. Danes v. Smith, 22 N.J. Super. 292 (App. Div. 1952). The argument runs that whether a contempt is "criminal" or "civil" depends upon the nature of the injunctive order, and that if the order forbids the doing of an act, a violation can be but criminal, whereas if the order commands the doing of an act, the contempt is "civil." For this distinction, defendants cite among other cases Staley v. South Jersey Realty Co., 83 N.J. Eq. 300, 304 (E. & A. 1914) and Gompers v. Buck's Stove & Range Co., 221 U.S. 418, 31 S. Ct. 492, 55 L. Ed. 797 (1911). Here the injunctive order was prohibitory, at least in its phrasing, and hence defendants say the alleged contempt can be but criminal.
No doubt language can be found to support a distinction based upon the character of the injunctive command, but the distinction is foreign to the sense of the subject.
The trouble in this area is semantic. As is so often the case, labels are the villains. Short-hand descriptions
invented for one purpose lead to thoughtless results elsewhere. The word "contempt" signifies a public offense. It refers to a contempt of government; there is no such thing as a contempt of a litigant. The expression "criminal contempt" is as redundant as "criminal crime," and to talk of "civil contempt" is to talk of "civil crime." We do not speak of "criminal manslaughter" and "civil manslaughter" to describe either the public and private wrongs or the public and private remedies. Rather we use "manslaughter" to describe the crime and the prosecution, and "wrongful death" to describe the private wrong and the civil action for a private recovery. Unhappily, with respect to contempt, the public remedy was denominated "criminal contempt" and the private remedy was called "civil contempt." The result has been confusion both as to substance and procedure, a confusion which stems from loose expression rather than the nature of the subject.
On the substantive side, the labels have invited confusion as to the ingredients of the public and private wrongs and as to whether those wrongs are mutually exclusive. The contempt, i.e., the public wrong, consists of a definance of governmental authority. In the case of injunctive orders, it is more than the doing of the forbidden act or the failure to do what is ordered. The act or omission must be accompanied by a mens rea, a willfulness, an indifference to the court's command. The breach, if accompanied by that state of mind, challenges the authority of government whether the order be mandatory or prohibitory. With respect to the private wrong, the state of mind is irrelevant. McComb v. Jacksonville Paper Co., 336 U.S. 187, 69 S. Ct. 497, 93 L. Ed. 599 (1949); Hilton v. Hilton, 89 N.J. Eq. 472, 477 (Ch.), affirmed 90 N.J. Eq. 564 (E. & A. 1919); Ashby v. Ashby, 62 N.J. Eq. 618, 620 (Ch. 1901); Thompson v. Pennsylvania R.R. Co., 48 N.J. Eq. 105, 108 (Ch. 1891), reversed on other grounds 49 N.J. Eq. 318, 319 (E. & A. 1892). If the litigant has been denied what is due him under the order, he has suffered
an injury for which he is entitled to supplemental relief. And his right to relief does not depend upon whether the order disobeyed is mandatory or prohibitory. The nature of the command may bear upon the nature of the supplemental redress but not upon the litigant's right to it. If the order is mandatory and the violator has the ability to perform, the court will ordinarily jail the offender until he complies. If the order is prohibitory, again the offender may be incarcerated until he undoes the violation if he has the ability to undo it. For example, if a barrier is erected in violation of an order prohibiting it, the defendant may be jailed until it is removed. In either situation, the court may withhold the coercive remedy if satisfied that the violation was innocent and compliance will forthwith ensue. But in any event, whether the order be mandatory or prohibitory and whether civil incarceration be appropriate or not, the injured litigant may be awarded damages to compensate for interim loss of the benefit of the order which was dishonored. United States v. United Mine Workers, 330 U.S. 258, 67 S. Ct. 677, 91 L. Ed. 884 (1947); Lamb v. Cramer, 285 U.S. 217, 221, 52 S. Ct. 315, 76 L. Ed. 715, 719-720 (1932); Leman v. Krentler-Arnold Hinge Last Co., 284 U.S. 448, 52 S. Ct. 238, 76 L. Ed. 389 (1932); National Drying Mach. Co. v. Ackoff, 245 F.2d 192 (3 Cir.), certiorari denied 355 U.S. 832, 78 S. Ct. 47, 2 L. Ed. 2 d 44 (1957); Ashby v. Ashby, supra (62 N.J. Eq. 618); City of Scranton v. People's Coal Co., 274 Pa. 63, 117 A. 673 (Sup. Ct. 1922); cf. Mantell v. International Plastic Harmonica Corp., 138 N.J. Eq. 562, 578 (Ch. 1946), modified 141 N.J. Eq. 379, 394-395 (E. & A. 1947).
On the procedural side, confusion has been equally evident. If a man is alleged merely to be in "contempt" he may not know whether he is hailed to answer a criminal charge or to respond to a prayer for supplemental relief for the adversary party. Yet the object of the proceeding is of great moment, for if it is criminal, he is entitled to the safeguards accorded one charged with crime, except the
constitutional guarantees of the indictment and trial by jury, and even as to them we note in passing that a vigorous dissent in Green v. United States, 356 U.S. 165, 78 S. Ct. 632, 2 L. Ed. 2 d 672 (1958), finds those rights are assured. See Comment, 57 Mich. L. Rev. 258 (1958). Further, if the proceeding is criminal, the judgment must be a finite sentence, whereas if the proceeding is civil, incarceration ends when the need for coercion ceases, i.e., upon defendant's compliance with the order. Hence the defendant must be informed at once of the purpose of the proceeding. It will not do to find its nature from the terms of the resulting judgment. A defendant must be told where he is going; it is not enough to tell him where he has been. It would be contrary to our conception of fairness to permit a proceeding for "manslaughter" in which the defendant must surmise whether the purpose is to convict for crime or to award damages to the victim's next of kin.
That "contempt" signifies an offense against the State is evident from the history of the subject. In his treatment of public wrongs, Blackstone included "contempts against the king's palaces or courts of justice" as a species of offenses against the king and government. 4 Blackstone, Commentaries *124. In Gompers v. United States, 233 U.S. 604, 610, 34 S. Ct. 693, 58 L. Ed. 1115, 1120 (1914), which involved a violation of an injunctive order, Mr. Justice Holmes said:
"It does not follow that contempts of the class under consideration are not crimes, or rather, in the language of the statute, offenses, because trial by jury as it has been gradually worked out and fought out has been thought not to extend to them as a matter of constitutional right. These contempts are infractions of the law, visited with punishment as such. If such acts are not criminal, we are in error as to the most fundamental characteristic of crimes as that word has been understood in English speech. So truly are they crimes that it seems to be proved that in the 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. * * *"
In Staley, supra (83 N.J. Eq., at p. 305), the Court of Errors and Appeals quoted from the foregoing excerpt from Gompers and said (at p. 304) that "Criminal contempts, on the other hand, as the term implies, are offences against organized society which, although they may arise in the course of private litigation, are not a part thereof, but, like other criminal offences, raise an issue between the public and the accused." See also In re Jibb, 123 N.J. Eq. 251, 252 (E. & A. 1938); State v. Zarafu, 35 N.J. Super. 177, 182 (App. Div. 1955); State v. Janiec, 25 N.J. Super. 197, 200 (App. Div. 1953); Zimmerman v. Zimmerman, 12 N.J. Super. 61, 66 (App. Div. 1950); In re Bozorth, 38 N.J. Super. 184, 188 (Ch. Div. 1955).
N.J.S. 2 A:10-1 deals with the power of the courts "to punish for contempt." The word "contempt" is there used correctly to identify the public offense. The statute has an interesting history. As Mr. Justice Holmes pointed out in Gompers, supra, there is no doubt that a contempt could be punished by the regular criminal process, and it remains so punishable as a common law crime under N.J.S. 2 A:85-1. The historical issue revolved about the power of a court to punish a contempt (other than one in the actual presence of the court) in summary proceeding, i.e., without indictment and trial by jury. In the early 1800's a spate of summary prosecutions for "out-of-door" contempts consisting of criticisms of courts precipitated impeachment proceedings against judges who claimed the power to deal summarily with their critics. The subject perhaps also involved the substantive question whether criticisms are offenses at all if they fall short of libel, but the procedural aspect seems to have been the center of the storm. The story is told in Frankfurter and Landis, "Power of Congress over Procedure in Criminal Contempts in 'Inferior' Federal Courts -- A Study in Separation of Powers," 37 Harv. L. Rev. 1010, 1023 et seq. (1924). As there pointed out the controversy resulted in the adoption by Congress on March 2, 1831 of "An Act declaratory of the law concerning contempts
of court" (4 Stat. 487), and the adoption of similar statutes in a number of the states (p. 1027).
In our own State, it was almost a century later that the Legislature expressed its view. As in the case of the federal statute, it was a claim of power to deal summarily with "out-of-door" criticism of a court, see Croasdale v. Court of Quarter Sessions, 88 N.J.L. 506 (Sup. Ct. 1916); In re Verdon, 89 N.J.L. 16 (Sup. Ct. 1916), reversed on other grounds 90 N.J.L. 494 (E. & A. 1917), which led to legislation. The Legislature responded with Chapter 37 of the Laws of 1917, entitled "An Act concerning contempt of court and restricting and defining the jurisdiction of the courts of this State with respect thereto." The statement attached to the bill (S. 272; Feb. 20, 1917) asserted that the judge's power "to summarily summon before them persons criticizing their official acts and to fine or imprison such persons at will and without a jury trial" is "truth-stifling, despotic, and exceedingly dangerous to liberty." It stated the purpose "to prevent abuses of this power" and noted that the bill was "modelled after the Act of Congress of March 2, 1831" to which we have already referred. The essence of the 1917 act now appears in N.J.S. 2 A:10-1 which we cited above and which reads:
"The power of any court of this state to punish for contempt shall not be construed to extend to any case except the:
a. Misbehavior of any person in the actual presence of the court;
b. Misbehavior of any officer of the court in his official ...