dissenting:
I am unable to concur in affirming the decree appealed from for reasons which I shall state as briefly as I can.
1. As regards the conclusion that this proceeding must be regarded as criminal solely, and, in consequence, that the evidence upon which the conviction rests cannot be considered, because not presented in a bill of exceptions reserved on the hearing, I will content myself with saying that I am not clearly convinced that it must be so regarded. The complaint was made by the complainant, on whose behalf the injunction had been granted, and for its own redress. No fine was imposed on behalf of the United States. The relief sought in the original bill was not pecuniary. The punishment by imprisonment for disobedience of the writ was the only way in which the relief sought could be secured. For these reasons, the proceeding might well be regarded as ancillary to the main suit, the order as one entered in execution of the decree made therein, and therefore, the evidence might not only be taken, but considered also in accordance with the practice in equity cases, notwithstanding the fact that the language contained in the opinion of the trial justice and the unusual severity of his sentence indicated that he regarded the proceeding as punitory, and not remedial.
2. Assuming that the proceeding'is criminal in its nature, *580there being no bill of exceptions, the presumption follows that the allegations of the complaint found to be true were supported by satisfactory evidence. Whether the record of complaint and decree upon which the case has been considered may be supplemented by the opinion of the court, filed in the cause and made a part of the record, is a question that will be considered later.
The complaint consists of twenty-six paragraphs. It has been ordered to be printed in the report of the case, and need not be repeated or summarized. An examination of it will show that the first fifteen paragraphs charge conduct and language used by respondents in public meetings, long antedating the commencement of the original suit; some occurring in the year 1897, and long before any controversy had arisen. The sixteenth paragraph is the first that charges any act subsequent to the order for the injunction, and in disobedience thereof. The 'order was announced December 17th, 1907, and entered on December 18th, directing the injunction to issue upon the execution of a bond in the usual form by the complainant. The order was to the effect that the injunction “shall be in full force, obligatory and binding upon the defendants,” etc., provided the complainant shall first execute the necessary bond. This order was in compliance with equity rule 42, of the supreme court of the District of Columbia, which makes the execution and approval of the bond a “precedent condition.”
This bond was not given until December 23. The specific charge is that, after the granting of the order, and before the giving of the bond, the respondents Grompers and Morrison hastened to deposit in the mails the already-printed January number of the American Federationist, which contained the publication of complainant’s name in the “Unfair” list. It is not charged that any subsequent issue of the journal contained a similar publication. Some general allegations respecting the circulation of the January number of the Journal are too vague to form the foundation of a criminal charge and conviction. The gist of the charge is this “rushing” of the journal in the mails between December 17th and 23d. The decree con*581victing the respondents cannot be supported on this charge, because the order for the injunction did not become operative and effective before compliance with the precedent condition.
In the earlier equity practice an injunction was issued without bond, and was, therefore, effective from the moment of granting the order. In such case, if an injunction was improvidently granted, the defendant had no redress for the injuries he might sustain thereby. To remedy the great mischief resulting from this practice, courts of equity began to require bonds when, in their discretion, it seemed just to do so. But modern statutes, and rules of court authorized by statute, have, in general, gone much farther and required bonds as conditions precedent to the taking effect of the order. Equity rule 42 is one of these. Adopted by express authority of Congress, it has all the force of a statute. Until the bond be given, the order for the injunction is clearly inoperative, without effect or obligation. This has been held by the court which promulgated the rule. Lamon v. McKee, 7 Mackey, 446.
This question was reconsidered by this court in a recent case and the same conclusion reached. Drew v. Hogan, 26 App. D. C. 55—62, 6 A. & E. Ann. Cas. 589. Similar statutes and rules have received the same construction throughout the country. Clarke v. Hoomes, 2 Hen. & M. 23; Winslow v. Nayson, 113 Mass. 411-421; Diehl v. Friester, 37 Ohio St. 473; Elliott v. Osborne, 1 Cal. 396; State ex rel. Bradford v. Rush County, 35 Kan. 150—155, 10 Pac. 535; State ex rel. Wilson v. Kearny County, 42 Kan. 739—748, 22 Pac. 735; Van Fleet v. Stout, 44 Kan. 523, 525, 24 Pac. 960; Pell v. Lander, 8 B. Mon. 554, 556; Davis v. Dixon, 1 How. (Miss.) 64-67, 26 Am. Dec. 695 ; State ex rel. Downing v. Greene, 48 Neb. 327-332, 67 N. W. 162; Marlatt v. Perrine, 17 N. J. Eq. 49—51; Lawton v. Richardson, 115 Mich. 12, 72 N. W. 988; Carpenter v. Keating, 10 Abb. Pr. N. S. 223.
3. Coming now to the remaining paragraphs, excepting that relating to the respondent John Mitchell, I find that they contain references to the effect of the injunction, in an “urgent appeal” to the friends of the labor organization to aid with *582funds in the prosecution of an appeal from the order, as well as declarations in speeches made in public meetings. In the view of my brethren, these show an express contempt of ;the court granting the injunction, as well as an attempt to incite others to disobey it. There is no allegation that any act enforcing the boycott which had been enjoined has been committed by the respondents or any of their adherents. So far as it was declared that the injunction did not compel anyone to purchase the goods of the complainant, the declaration was the statement of a fact. The language used was in bad taste, under all the circumstances, but seems to have been directed to the assertion of the right of free speech and free publication for which the respondents were then and are now contending. Had these publications and speeches been followed by acts renewing or continuing the boycott, as that had been defined by this court, I grant that they might have been considered as circumstances, among others, tending to show that they were intended to incite others to disobey the injunction. That they were not so regarded by those so completely under the influence of the respondents affords some inference that they were not so intended.
The last paragraph (26) is so general and vague that it cannot form a sufficient foundation for a judgment of conviction of crime. It seems to be the statement of a general conclusion from the facts previously charged, in the nature of a general conclusion of an ordinary common-law indictment.
4. In the opinion of the majority of the court it is substantially conceded that some of the charges in the complaint of which respondents were found guilty do not show anything done in disobedience of the writ. They say: “In addition to finding the defendants guilty of the foregoing offenses as charged, they were also found guilty of numerous other offenses charged in the petition. Since, however, the finding of guilt on the counts or charges above considered is sufficient to support the judgment of the court, and the penalty imposed is not greater than could have been inflicted had they constituted the only offenses charged, it will not be necessary to consider the other offenses charged in the petition of which the defendants were found *583guilty. In a criminal proceeding where the accused is found guilty as charged under an indictment containing numerous counts, the judgment will not be reversed; though some of the counts are bad, if the good ones are sufficient to support the judgment.”
Assuming the analogy between the two cases as stated, the general doctrine is in accordance with the law as laid down by the Supreme Court of the United States in Claassen v. United States, 142 U. S. 140-146, 35 L. ed. 966-968, 12 Sup. Ct. Rep. 169, and other cases. But the presumption of law that, in such a case, the sentence was on the good count solely, can only be indulged “in the absence of anything in the record to show the contrary.” It is very clear that the presumption cannot be indulged if we can be permitted to consider the opinion of the learned justice who awarded the sentence. That opinion has been made a part of the transcript in accordance with paragraph F, rule 5, of this court, and is found in the printed record, of which it fills fifty-four pages. It undertakes a recital of all the facts found, under two heads entitled as follows : “Conditions anteceding the injunction,” and “Since the injunction.” The statement of antecedent conditions covers thirty-one of the fifty-four pages. This opinion shows conclusively that the finding of guilt and the extreme severity of the punishment were based upon the antecedent conduct and declarations of the defendants, as well as upon those in the paragraphs or counts aforesaid. In my judgment, justice demands that this opinion be considered as what it is; namely, the special findings of fact on which the decree is founded and by which it must he tested.
5. The complaint states one specific charge of violation of the injunction by the respondent Mitchell alone; namely, his presiding over and participating in a meeting of the United Mine Workers of America in Indianapolis, on June 25th, 1908, and approving a resolution then and there adopted reciting the controversy between the complainant and “.Organized Labor,” and imposing a fine of $5 upon any member who shall thereafter purchase a stove of complainant’s manufacture. This was an *584act violating both the original and the. modified decree for injunction that was then in force. It appears, however, from the findings of fact in the opinion aforesaid, relating to the defendant Mitchell, that the court took into consideration certain other acts and declarations of said Mitchell. These comprise statements made in a book published by him in 1903, declarations in a speech made before the National Civic Federation, December 13, 1906, to the effect that, if a court should “enjoin him from doing something he had a legal, constitutional, and moral right to do, he would violate the injunction,” and his affixing his signature to the “urgent appeal” before mentioned.
"When we consider the severity of the sentence of Mitchell, I think it impossible to say that it was not founded in part upon the foregoing declarations, which long antedated the controversy with the complainant.
Upon the ■ assumption that each and all of the defendants committed some acts in violation of the injunction, both as originally issued and as modified on appeal, I am of the opinion that the decree should be reversed and the case remanded for trial upon evidence confined to the real question involved.
6. There is another and stronger reason for my dissent so far as the respondents Gompers and Morrison are involved. The specific acts charged against them relate wholly to declarations and publications which violated the preliminary injunction as issued. I have heretofore' expressed the opinion that so much of the injunction order was null and void because opposed to the constitutional prohibition of any abridgment of the freedom of speech or of the press. (33 App. D. O. p. 129.) Subsequent reflection has confirmed the views then expressed. I concede that the court had jurisdiction of the subject-matter of the controversy and of the parties, but I cannot agree that a decree rendered in excess of the power of the court — a power limited by express provision of the Constitution — is merely erroneous, and not absolutely void. That proposition is met and conclusively disposed of by Mr. Justice Miller in Ex parte Lange, 18 Wall. 163-175, 21 L. ed. 872-878. I quote therefrom as follows: “But it has been said that, conceding all this, *585the judgment under which the prisoner is now held is erroneous, but not void; and, as this court cannot review that judgment for error, it can discharge the prisoner only when it is void. But we do not concede the major premise in this argument. A judgment may be erroneous, and not void, and it may be erroneous because it is void. The distinctions between void and merely voidable judgments are very nice, and they fall under the one class or the other as they are regarded for different purposes. * * * It is no answer to this to say that the court had jurisdiction of the person of the prisoner, and of the offense under the statute. It by no means follows that these two facts make valid, however, erroneous it may be, any judgment the court may render in such case.”
In a later case, the same justice said: “When, however, a court of the United States undertakes, by its process of contempt, to punish a man for refusing to comply with an order which that court had no authority to make, the order itself, being without jurisdiction, is void, and the order punishing for the contempt is equally void.” Ex parte Fisk, 113 U. S. 713-718, 28 L. ed. 1117—1119, 5 Sup. Ct. Rep. 724. To the same effect are In Re Snow, 120 U. S. 274-285, 30 L. ed. 658-662, 7 Sup. Ct. Rep: 556; Re Ayers, 123 U. S. 443-485, 31 L. ed. 216-223, Sup. Ct. Rep. 164; Re Nielsen, 131 U.S. 176-183, 33 L. ed. 118-120, 9 Sup. Ct. Bep. 672; Windsor v. McVeigh, 93 U. S. 274, 283, 23 L. ed. 914, 917.
In Nielsen's Case, Mr. Justice Bradley stated the rule here contended for as follows: “It is difficult to see why a conviction and punishment under an unconstitutional law is more violative of a person’s constitutional rights than an unconstitutional conviction and punishment under a valid law. In the first case, it is true, the court has no authority to take cognizance of the case; but, in the other, it has no authority to render judgment against the defendant. This was the case of Ex parte Lange, where the court had authority to hear and determine the ease, but we held that it had no authority to give the judgment ‘ it did. It was the same in the case of Snow; the court had authority over the case, but we held that it had no authority to *586give judgment against tbe prisoner. He was protected by a constitutional provision, securing to him a fundamental right. It was not a case of mere error in law, but a case of denying to a person a constitutional right.” See also Re Frederick, 149 U. S. 70-76, 37 L. ed. 653-656, 13 Sup. Ct. Rep. 793; Re Bonner, 151 U. S. 242-256, 38 L. ed. 149-151, 14 Sup. Ct. Rep. 323.
Convinced that the court was without authority to make the only order which the defendants Gompers and Morrison can be said to have disobeyed, I can have no other opinion than othat the decree should be reversed.
A petition by the appellants to the Supreme Court of the United States for the issuance to this court of the writ of certiorari removing the cause to that court for review, was granted December 9, 1909.