RUTLEDGE, J., dissenting. 330 U.S. application of any specific guaranty. It affects the right to insist upon or have the benefit of any. This case is characteristic of the long-existing confusion concerning contempts and the manner of their trial, among other things, in that most frequently the question of the nature and character of the proceeding, whether civil or criminal, is determined at its end in the stage of review rather than, as it should be and as in my opinion it must be, at the beginning. Gompers v. Bucks Stove & R. Co., 221 U. S. 418, 444. And this fact in itself illustrates the complete jeopardy in which rights are placed when the nature of the proceeding remains unknown and unascertainable until the final action on review. Not only is one thus placed in continuing dilemma throughout the proceedings in the trial court concerning which set of procedural rights he is entitled to stand upon, whether upon the criminal safeguards or only on the civil. He also does not and cannot know until it is too late, that is, until the appellate phase is ended, whether one group or the other of appellate jurisdictional and procedural rules applies. Indeed he may find that his right of review has been taken either prematurely or too late depending entirely on whether the appellate court finally concludes that the proceeding has been civil or criminal in character." 35 In civil cases under Rule 73 appeal is taken by filing notice thereof "within the time prescribed by law," and generally, though there are exceptions, the time is three months. 28 U. S. C. § 230; Mosier v. Federal Reserve Bank, 132 F. 2d 710, 712. In criminal cases the Federal Rules now allow taking an appeal by filing notice of appeal as in civil cases. But an appeal must be taken by a defendant within 10 days after entry of judgment or after denial of motion for new trial. Rule 37 (a) (2). In Nye v. United States, 313 U. S. 33, it was held that 28 U. S. C. § 230 rather than the Criminal Appeals Rules governed timeliness in a criminal contempt appeal. But the new Criminal Rules would seem to apply to criminal contempts. Moore v. United States, 150 F. 2d 323, 324. See Rules 42 and 54; 55 Stat. 779, 18 U.S. C. § 689.. On certiorari, if the Rules of Criminal Procedure govern, there 258 RUTLEDGE, J., dissenting. See Swayzee, Contempt of Court in Labor Injunction Cases (1935) 21-22. Precisely for these reasons this Court, when confronted in the Gompers case, supra, with a proceeding commingling civil and criminal features, such as we have here, refused to countenance such a mixture and, finding that the proceedings had been civil, held the criminal penalty of fixed terms of imprisonment to be invalid. The Court said: 36 "There was therefore a departure a variance between the procedure adopted and the punishment imposed, when, in answer to a prayer for remedial is also a difference. In civil cases the time for petitioning for certiorari is three months. In criminal cases the petition must be filed within thirty days after entry of judgment. Rule 37 (b) (2). Compare Nye v. United States, supra, at 42, n. 6, as to the law prior to the new Criminal Rules. The largest present difference between appeals in civil and criminal contempts is that, "except in connection with an appeal from a final judgment or decree, a party to a suit may not review upon appeal an order fining or imprisoning him for the commission of a civil contempt." Fox v. Capital Co., 299 U. S. 105, 107, and cases cited. Compare Lamb v. Cramer, 285 U. S. 217. On the other hand, if the contempt is criminal, it may be directly reviewed. Union Tool Co. v. Wilson, 259 U. S. 107. It has been held that where the contempt is both civil and criminal, the criminal procedure governs for purposes of review so that there may be immediate review of both the part that is civil and the part that is criminal. Union Tool Co. v. Wilson, supra, at 111; Nye v. United States, 313 U. S. at 42-43. 36 There as here the contempt proceedings were entitled and conducted as collateral to civil litigation between the parties and the order for contempt had been grounded upon disobedience to a restraining order issued in the course of the litigation, conduct which would have sustained either civil or criminal penalty. The Court of Appeals had held the proceeding criminal. But this Court held it to be civil since it was collateral, not an independent suit at law to vindicate the public interest. Hence, it followed that the criminal penalty could not stand. Neither the Norris-LaGuardia Act nor the War Labor Disputes Act was then in force. RUTLEDGE, J., dissenting. 330 U.S. relief, in the equity cause, the court imposed a punitive sentence appropriate only to a proceeding at law for criminal contempt. The result was as fundamentally erroneous as if in an action of 'A. vs. B. for assault and battery,' the judgment entered had been that the defendant be confined in prison for twelve months." 221 U. S. at 449. Not only must the punishments be kept separate and distinct." This must be done with the entire proceedings. Punishment and civil relief must be correlated with the character of the proceeding. Procedural rights 38 37 Throughout the opinion the Court insisted the two forms of relief are altogether incompatible not only for interchangeability between the two types of proceeding, but necessarily for commingling in indistinguishable conglomeration. Imprisonment as penalty for criminal contempt could be imposed for fixed terms, but in civil contempt this could not be done, the court's power being limited to remedial or coercive imprisonment, that is, until the person convicted should comply with the court's order. So also with fines, which in civil contempt can be no more in amount than is commensurate with the injury inflicted or is necessary to secure compliance and must be contingent, whereas the limitation requiring correlation to the amount of injury does not apply to fines in criminal proceedings. 221 U. S. at 442-444, 449. The same distinction applies as to the payment of costs. P. 447. See Part IV. As will appear, this distinction is of paramount importance in this case. And so it was in the Gompers case, for the main cause had been settled, and the Court held this required not only reversal, but dismissal of the contempt proceeding, which would not have been true in one for criminal contempt. 221 U. S. at 451-452. 38 As with the factor of relief, the opinion throughout uses alternative, not conjunctive, language concerning the two types of proceedings. Civil contempts, it said, "are between the original parties and are instituted and tried as a part of the main cause. But on the other hand, proceedings at law for criminal contempt are between the public and the defendant, and are not a part of the original cause." 221 U. S. at 445. See also p. 446. 258 RUTLEDGE, J., dissenting. 99 40 not only in matters of practice," but in others "which involve substantial rights and constitutional privileges,' are so distinct and in some instances contradictory that "manifestly" they cannot be intermingled. Nor can those applicable in criminal proceedings be disregarded when criminal penalty is sought. Not only such matters as the privilege against self-incrimination, the presumption of innocence, the necessity for proof beyond a reasonable doubt," the allowance of costs, the appropriate mode of review 42 with attendant limitations of time and other differences, require this. What is most important, because the application and observance of all these rights and others depend upon it, is that the person charged is entitled to know from the beginning, not merely at the 39 For example, most frequently perhaps the methods and times for securing appellate review, which at the time of the Gompers decision included whether the case could be reviewed by writ of error or appeal. 221 U. S. at 444; cf. Bessette v. Conkey Co., 194 U. S. 324. See note 40; see also note 35. 40 "The question as to the character of such proceedings has generally been raised, in the appellate court, to determine whether the case could be reviewed by writ of error or on appeal. Bessette v. Conkey, 194 U. S. 324. But it may involve much more than mere matters of practice. For, notwithstanding the many elements of similarity in procedure and in punishment, there are some differences between the two classes of proceedings which involve substantial rights and constitutional privileges. Without deciding what may be the rule in civil contempt, it is certain that in proceedings for criminal contempt the defendant is presumed to be innocent, he must be proved to be guilty beyond a reasonable doubt, and cannot be compelled to testify against himself. Boyd v. United States, 116 U. S. 616; United States v. Jose, 63 Fed. Rep. 951; State v. Davis, 50 W. Va. 100; King v. Ohio Ry., 7 Biss. 529; Sabin v. Fogarty, 70 Fed. Rep. 482, 483; Drakeford v. Adams, 98 Georgia, 724." 221 U.S. at 444. 41 See note 40. 42 See notes 35, 37, 39. RUTLEDGE, J., dissenting. 330 U.S. end or some intermediate stage," in which sort of proceeding he is involved. This, the Court said, "is not a mere matter of form, for manifestly every citizen, however unlearned in the law, by a mere inspection of the papers in contempt proceedings ought to be able to see whether it was instituted for private litigation or for public prosecution He should not be left in doubt as to whether relief or punishment was the object in view. He is not only entitled to be informed of the nature of the charge against him, but to know that it is a charge and not a suit. United States v. Cruikshank, 92 U. S. 542, 559." 221 U. S. at 446. This rule has now been incorporated also in Rule 42 (b) of the Federal Rules of Criminal Procedure," and was applicable in this case. By the terms of that rule the charge of criminal contempt was required to be "prosecuted on notice" and it was further commanded that the notice state "the essential facts constituting the criminal contempt charged and describe it as such," which was not done here. The rule was adopted to outlaw "the frequent confusion between civil and criminal contempt proceedings," following immediately a suggestion made in McCann v. New York Stock Exchange, 80 F. 2d 211." 43 Cf. note 40. 44 "A criminal contempt except as provided in subdivision (a) of this rule shall be prosecuted on notice. The notice shall state the time and place of hearing, allowing a reasonable time for the preparation of the defense, and shall state the essential facts constituting the criminal contempt charged and describe it as such. The notice shall be given orally by the judge in open court in the presence of the defendant or, on application of the United States attorney or of an attorney appointed by the court for that purpose, by an order to show cause or an order of arrest. . . ." Rule 42 (b), Federal Rules of Criminal Procedure. 45 Judge L. Hand's opinion in the McCann case reads in part as follows: "... the respondent will often find it hard to tell whether |