Annotate this Case

166 S.E.2d 698 (1969)

4 N.C. App. 245


No. 6913SC42.

Court of Appeals of North Carolina.

April 2, 1969.

*699 Powell, Lee & Lee, by J. B. Lee, Jr., Whiteville, for plaintiff appellees.

Rountree & Clark, by John Richard Newton, Wilmington, for defendant appellants.


Since the only exception preserved and argued in this Court by the defendant appellants was the refusal of the superior court judge to grant the motion for a jury trial, the question presented for decision is: "In this contempt proceeding, were the defendant appellants entitled to a jury trial?" The answer to this question is "no."

In the case of In re Gorham, 129 N.C. 481, 40 S.E. 311, the respondents were cited to show cause why they should not be adjudged in contempt for tampering with a jury in a civil trial. They were adjudged in contempt and two of the respondents were committed to jail for twenty days and fined fifty dollars each. The third respondent was fined fifty dollars. The Supreme Court held: "The respondents were not entitled to a trial by jury, nor to have the findings of fact reviewed in this court. There was evidence before his honor to support the findings, and that is all that is required."

In Safie Manufacturing Co. v. Arnold, 228 N.C. 375, 45 S.E.2d 577, a restraining order had been issued restraining and enjoining the defendants from unlawfully interfering with plaintiff's employees in connection with a strike. The defendants were cited to show cause why they should not be adjudged in contempt for violating the restraining order. Upon the hearing the defendants were adjudged in contempt and were imprisoned and fined for varying periods of time and in various amounts, the greatest being for a period of thirty days and a fine of one hundred fifty dollars. Winborne, J. (later C. J.) stated:

"It is appropriate to note, in summary, that the contempt proceeding against respondents, appellants in this Court, arises out of a principal action in which Superior Court judges, presiding over Superior Courts of Richmond County, courts of competent jurisdiction, successively issued three injunctive orders for the purpose of protecting persons who desired to work, and who had a right to work, if they so desired, in plaintiff's plant. And while the orders are by their terms temporary and effective only until final trial of the cause, they are lawful orders of a court of competent jurisdiction. Any person guilty of willful disobedience of such order may be punished for contempt of court. G.S. § 5-1."

Various errors were urged by the respondents on the appeal, all of which were considered and denied by the Supreme Court, including the following:

"It is further contended in effect that this contempt proceeding is of criminal nature, and is governed by the rules of procedure and the law applicable to criminal prosecutions, and hence the judgments rendered under the circumstances of this proceeding exceed the jurisdiction of the court. As to this contention, in this State a contempt proceeding is authorized by statute, G.S. § 5-1. This Court has described it as sui generis, criminal in its nature, which may be resorted *700 to in civil or criminal actions. In re Hege [205 N.C. 625, 172 S.E. 345]. And it is held that persons charged are not entitled to a jury trial in such proceeding. In re Gorham [supra].

In Luther v. Luther, 234 N.C. 429, 67 S.E.2d 345, Ervin, J., speaking for the Supreme Court, pointed out the difference between a proceeding under G.S. § 5-1 "for contempt" and a proceeding under G.S. § 5-8 "as for contempt". The difference was again pointed out in Rose's Stores, Inc. v. Tarrytown Center, Inc., 270 N.C. 206, 154 S.E.2d 313, where Branch, J., speaking for the Supreme Court, stated:

"The punishment as to matters punishable for contempt is limited to a fine not to exceed $250 or imprisonment not to exceed thirty days, or both, in the discretion of the court. G.S. § 5-4. However, punishment as for contempt is not limited by the terms of this statute. * * * * * * * Criminal contempt or punishment for contempt is applied where the judgment is in punishment of an act already accomplished, tending to interfere with the administration of justice. Civil contempt or punishment as for contempt is applied to a continuing act, and the proceeding is had `"to preserve and enforce the rights of private parties to suits and to compel obedience to orders and decrees made for the benefit of such parties."'Dyer v. Dyer, 213 N.C. 634, 197 S.E. 157. There are certain instances where contemnors may be punished for both criminal contempt, i.e., for contempt, and for civil contempt, i.e., as for contempt. * * *"

In the instant case we have punishment for criminal contempt, i.e., "for contempt", because the judgment imposed was for punishment of an already accomplished act which tended to interfere with the administration of justice. Since the maximum penalty under G.S. § 54 was "a fine not to exceed two hundred and fifty dollars, or imprisonment not to exceed thirty days, or both, in the discretion of the court", the punishment imposed by Judge Clark was well within the statutory limits. Rose's Stores, Inc. v. Tarrytown Center, Inc., supra.

In a North Carolina contempt proceeding, the contemnor is not entitled to a jury trial. Since the maximum punishment provides for imprisonment for less than six months and a fine for less than $500, our view is not contrary to the rule enunciated by the Supreme Court of the United States in Bloom v. Illinois, 391 U.S. 194, 88 S. Ct. 1477, 20 L. Ed. 2d 522, and it is in conformity with the view expressed in Dyke v. Taylor Implement Manufacturing Co., 391 U.S. 216, 88 S. Ct. 1472, 20 L. Ed. 2d 538.

In the instant case counsel for the defendant appellants makes the novel contention that they should be entitled to a jury trial because a finding that they are in contempt of court exposes them to a loss of certain benefits under the North Carolina Employment Security Law, G.S., Chap. 96, in addition to a possible fine of $250 or thirty days in jail, or both, in the discretion of the court, under G.S. § 5-4. Such a loss of benefits is not presented by the record in this case. It might be said that, in addition to punishment by way of a fine or imprisonment, or both, any law violator forfeits other rights, emoluments and opportunities for gainful employment which are open to those who do not violate the law. Such a contention, while novel, does not raise any constitutional question.

The order of Judge Clark is


BROCK and NORRIS, JJ., concur.