Opinion
Argued October 22d 1931.
Decided February 1st, 1932.
1. Petitioner charged defendants with criminal contempt. This is a criminal trial and the mere fact that the case is tried before a single judge does not alter the fundamental principles that apply when the defendants are tried on an indictment found by a grand jury.
2. The defendants are presumed to be innocent and the burden of proof is on the prosecutor of showing the truth of every material allegation of the charge against them.
3. To be guilty of contempt of court, it is essential that the contemner be aware of the order that he is charged with violating. There has been no attempt to prove that any of the defendants had any knowledge of the order they are charged with violating.
4. The allowance of a counsel fee to a successful defendant in a criminal contempt proceeding is within the discretion of the court. The Chancery act of 1902, section 91, as amended P.L. 1910 p. 427; Comp. Stat. p. 445, providing that "in any cause, matter or proceeding in the court of chancery, the chancellor may make such allowance by way of counsel fee to the party or parties obtaining the order or decree as shall seem to him to be reasonable and proper, and shall direct which of the parties shall pay such allowances," is sufficiently broad to include the instant case where defendants were allowed a counsel fee to be paid by petitioner.
On appeal from a decree of the court of chancery advised by Vice-Chancellor Bigelow, who filed the following opinion:
"This is a criminal trial. The mere fact that the case is tried before a single judge does not alter the fundamental principles that apply when the defendants are tried on an indictment found by a grand jury. The defendants are presumed to be innocent and the burden of proof is on the prosecutor of showing the truth of every material allegation of the charge against them. To be guilty of contempt of court it is essential that the contemner be aware of the order that he is charged with violating. There has been no attempt to prove that any of the defendants had any knowledge of the order they are charged with violating. There is nothing in the record of this case or the preceding case, if I could refer to the preceding case, to show that the restraining order was ever served on any of the defendants. There is nothing to show that it has ever been brought to the attention of the defendants in the present proceedings. There is sufficient evidence here that some of the present defendants violated the terms of the original order if they were included within its scope. The acts which have been shown in the testimony to have been committed by Patsy and Jimmie Luzzi and Joe Gordano and perhaps Frank Stabulski violate the terms of the order, but they cannot be found guilty because it is not shown that they had notice of the order. The defendants United Hatters of North America, Local No. 13, United Hatters of North America, Local No. 14, the Trimmers Union of the United Hatters of North America, Michael Green and Michael F. Condrow are not shown to have had any connection with the disorders of which the petitioner complains, or to be guilty in any respect of violation of the order. The order to show cause will be discharged."
Subsequently Vice-Chancellor Bigelow filed the following supplemental opinion:
"On petition of the Hudson Hat Manufacturing Company the defendants were ordered to show cause why they should not be adjudged guilty of contempt and punished therefor. Upon the return of the order, the petitioner, through its counsel, presented evidence in support of its petition. This evidence fell far short of establishing the guilt of any of the defendants and so the order to show cause was discharged with costs, including a counsel fee of $100 to be paid by petitioner to the defendants. Counsel have informed me that petitioner has appealed from the allowance of a counsel fee on the ground that this court was without authority to order petitioner to pay a counsel fee inasmuch as this was a criminal contempt proceeding. In view of the appeal, it seems proper that I should state briefly my understanding of the law relative to the allowance of a counsel fee.
"The Chancery act of 1902, section 91, as amended ( P.L. 1910 p. 427; Comp. Stat. p. 445), provides `in any cause, matter or proceeding in the court of chancery, the chancellor may make such allowance by way of counsel fee to the party or parties obtaining the order or decree as shall seem to him to be reasonable and proper, and shall direct which of the parties shall pay such allowances.' This enactment seems sufficiently broad to include the instant case but petitioner contends that it should be restricted by interpretation so as to exclude a criminal contempt proceeding. Reliance is placed on the rule governing prosecutions in the criminal courts that an acquittal does not carry costs or counsel fee. There are, however. several reasons for this, none of which applies to the present case. First, no statute authorizes a discretionary counsel fee to either party in a criminal court as against another party. Second, no statute, by any reasonable construction, authorizes a judgment for costs in favor of a defendant in a criminal trial court. Third, in the ordinary criminal prosecution, the only parties are the defendant and the state, and costs are not adjudged against the state in the absence of express legislative sanction. Town of Kearney v. State Board of Taxes and Assessment, 103 N.J. Law 541. The Certiorari act ( P.L. 1903 p. 343 § 10; Comp. Stat. p. 405) and an act concerning costs ( Rev. p. 411 §§ 11, 13; Comp. Stat. p. 2296), contain language sufficiently broad to warrant the recovery of costs from the state on certiorari and on appeal, were the construction not restricted by the rule last above mentioned. The state, I take it, is a party to every criminal contempt proceeding, although an unnamed and usually inactive party. I see no reason why the state through the attorney-general could not conduct the prosecution of a criminal contempt in this court, but even if it should do so, it would not be liable to costs.
"The petitioner, the Hudson Hat Manufacturing Company, is also a party to the proceeding. On no other basis was its counsel permitted to appear and prosecute. It is not protected by the rule which protects the state against costs. Although costs are not usually allowed to the defendant and against the prosecutor in a criminal contempt proceeding, yet they sometimes are allowed. Magennis v. Parkhurst, 4 N.J. Eq. 432, 436; M'Dermott v. State, 10 N.J. Law *63; O'Rourke v. Cleveland, 49 N.J. Eq. 577.
"I have treated of costs somewhat at length because costs and counsel fees are governed by similar principles. They are both creatures of statutes. In the interpretation of the statutes, the state but not a private party is protected. In O'Rourke v. Cleveland it was held that a counsel fee could not be adjudged against a defendant in a contempt proceeding, but the statute has been amended and broadened since that time so that the contrary was held in Hilton v. Hilton, 89 N.J. Eq. 422. It seems clear to me that the allowance of a counsel fee to a successful defendant in criminal contempt is within the discretion of the court.
"The petitioner subjected a number of workmen and their unions to the humiliation attendant upon a criminal charge.
"It burdened them with the expense of defending against this charge. It failed at the hearing to make out even a prima facie case and so the defendants were discharged without being called upon to present their defense. Counsel for petitioner suggested that its motive in bringing this proceeding was to vindicate the dignity and authority of the court and therefore that the court should exercise its discretion in favor of the petitioner. But the principal motive of the petitioner was, undoubtedly, the protection of its own property — a worthy enough motive but the one which ordinarily moves a party in private litigation. Under these circumstances, it seems to me proper to compel the petitioner to pay a part of the defendant's expenses and therefore I allowed a counsel fee of $100."
Mr. Bernard Mindes, for the appellant.
Messrs. Kraemer, Siegler Siegler, for the respondents.
The decree appealed from will be affirmed, for the reasons expressed in the opinions filed by Vice-Chancellor Bigelow. For affirmance — THE CHIEF-JUSTICE, TRENCHARD, PARKER, CAMPBELL, LLOYD, CASE, BODINE, DALY, DONGES, VAN BUSKIRK, KAYS, HETFIELD, DEAR, WELLS, KERNEY, JJ. 15.
For reversal — None.