are many decisions to that effect. . . . The mere fact that the act is criminal is of no consequence. When a contempt of court happens at the same time to be a crime, that does not divest the court of power to deal with it as a contempt. In re Debs, petitioner, 158 U. S. 564, 593, 594. Some adjudications go only to the point of holding that constitutional courts cannot be affected by legislation undertaking to limit a power so essential to the very nature of courts. Bradley v. State, 111 Ga. 168. Hale v. State, 55 Ohio St. 210. Carter's Case, 96 Va. 791. State v. Frew, 24 W. Va. 416. Even if that guarded statement be assumed to be a limitation and not a simple confining of the decision to the point before the court, it would dispose of the case at bar which is pending in the Supreme Judicial Court. This court is established by the people in the Constitution as a co-ordinate department of government. Articles 29 and 30 of the Declaration of Rights. Chapter 2, § 1, art. 13, and c. 3, art. 2 of the Constitution. It has been recognized as such from the beginning by the executive and legislative departments. It has been so declared in decisions of the court. . . .

Trial by jury of the question whether a contempt of court had been committed would be a serious limitation of the power of courts. It has been so held whenever the point has arisen. It was said in Gompers v. Bucks Stove & Range Co., 221 U. S. 418, 450: "There has been general recognition of the fact that the courts are clothed with this power and must be authorized to exercise it without referring the issues of fact or law to another tribunal or to a jury in the same tribunal. For if there was no such authority in the first instance there would be no power to enforce its orders if they were disregarded in such independent investigation. Without authority to act promptly and independently the courts could not administer public justice or enforce the rights of private litigants." In the opinion in In re Debs, petitioner, 158 U. S. 564, 595, these words are found: "In order that a court may compel obedience to its orders it must have the right to inquire whether there has been any disobedience thereof. To submit the question of disobedience to another tribunal, be it a jury or another court, would operate to deprive the proceeding of half its efficiency." The two decisions last cited did not relate to the effect of a statute. The words quoted are sufficient to show that any statute requiring a jury trial upon contempt proceedings would be a substantial impairment of the inherent right of courts to maintain their authority. In Carter's Case, 96 Va. 791, in an elaborate opinion, a statute providing for a trial by jury in contempt cases was held to be beyond the power of the legislature. In re Dingley, 182 Mich. 44, 50, 51. There is no occasion for a jury trial to protect any real right, because, as was said by Mr. Justice Holmes in United States v. Shipp, 203 U. S. 563, at page 574, "The court is not a party [to proceedings for contempt]. There is nothing that affects the judges in their own persons. Their concern is only that

the law should be obeyed and enforced, and their interest is no other than that they represent in every case."

Numerous cases have arisen where courts have referred to statutes which relate to the subject of contempt. None of them contain, so far as we have observed, any discussion of the constitutional question here presented, and hence it is not necessary to refer to them. There is a federal statute concerning contempts. Judicial Code, approved March 3, 1911, c. 231, § 268. See U. S. Rev. Sts. § 725. It, however, was held in Toledo Newspaper Co. v. United States, 247 U. S. 402, 418, that that statute "conferred no power not already granted and imposed no limitations not already existing" apart from the statute. There is nothing at variance with this in Ex parte Robinson, 19 Wall. 505, where the punishment undertaken to be imposed for contempt was manifestly different from any within the jurisdiction of a court dealing with contempt. The conclusion is inevitable from these decisions, among which so far as we are aware there is no dissent, and the reasons supporting them, which need not be further recited, that this statute is unconstitutional as applied to the case at bar.

The first question must be answered in the negative. It becomes unnecessary to consider the second question reported.

Ordered accordingly.1

1 See 6 Corn. L. Q. 329. The similar provision of the Clayton Act, 38 U. S. Stat. 738, § 22, was held unconstitutional in Michaelson v. U. S., 291 Fed. 940 (C. C. A., 7th, 1923). On the constitutionality of this section, see 23 Colum. L. Rev. 375; 36 Harv. L. Rev. 1012. On its construction, see 23 Colum. L. Rev. 783; 37 Harv. L. Rev. 271, 486, 910; 8 Minn. L. Rev. 323. 345; 33 Yale L. J. 215. F. Frankfurter and J. Landis, in "Power of Congress over Procedure in Criminal Contempts in Inferior Federal Courts Study in Separation of Powers," 37 Harv. L. Rev. 1010 (1924), deal with the Clayton Act and general problems of contempt and labor injunctions, with English and American historical material.

a

See also on jury trial in contempt cases, J. H. Beale, 21 Harv. L. Rev. 173; H. Schofield, 8 Ill. L. Rev. 40n. On legislative regulation of contempt generally, see Ex p. Selowsky, 177 Pac. 301, 306 (Cal. App., 1918); Ex p. Coulter, 160 Ark. 550 (1923), noted in 10 Va. L. Rev. 326; Wilbur Larremore, "Constitutional Regulation of Contempt of Court," 13 Harv. L. Rev. 615 (1900).

Miscellaneous References on Contempt.

What is violation of an injunction in a particular case? In re North Bloomfield, 27 Fed. 795 (Cal., 1886); Auto Acetylene v. Prest-o-Lite, 276 Fed. 534 (C. C. A., 6th, 1921); Limerick v. Riback, 204 Mo. App. 321 (1920). gross negligence by defendant but no knowledge of agent's violation; Balk v. Int. Fur Workers, 94 N. J. Eq. 780 (1923), silence of defendant during inflammatory speech; see 235n., 236n.

Inability to comply with order as defense to charge of contempt, 22 A. L. R. 1256. Disobedience of injunction ordered by appellate court, punishable by lower court, 27 Harv. L. Rev. 589. Declaratory decree without express command or prohibition as basis of contempt proceeding, 29 A. L. R. 134. Contempt procedure in the U. S. courts, Ann. Cas. 1915D, 1058. Necessity of sworn statement as foundation for constructive contempt, 2 A. L. R. 225.

Appeals in equity. Supersedeas, Powhatan v. Ritz, 60 W. Va. 395, 409 (1906); 205n., 210n., 245n. Decision on the merits on appeal from preliminary injunction, Lee v. Jordan, 195 N. W. 660 (N. D., 1923); 10 Va. L. Rev. 397.

Liability of plaintiff for obtaining erroneous injunction. Bond required, Sullivan v. Judah, 4 Paige 444, 446 (1834). Counsel fees under injunction bonds, 15 Colum. L. Rev. 633. No liability without bond in absence of malice," Weinberg v. Goldstein, 241 Mass. 259 (1922). Measure of damages for "maliciously" obtaining injunction, 29 A. L. R. 727.

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