concurring.
But for the decision in United States v. United Mine Workers, 330 U. S. 258, I should have no difficulty in concluding with the Court that this contempt proceeding was exclusively civil in character and that, consequently, no criminal penalty could be imposed, coercive relief alone being allowable in such a case. Gompers v. Bucks Stove & Range Co., 221 U. S. 418.1 That decision held that the imposition of criminal punishment in a civil contempt proceeding “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.
By every test applied in the Gompers case this proceeding was civil, not criminal in character. Here as there the proceeding was entitled, instituted and conducted as collateral to civil litigation. It sought only remedial relief, namely, the production of specified books and records.2 *596And issuance of the citation was grounded upon disobedience of the court’s lawful order for their production.3
This act, like the act of disobedience in the Gompers case, constituted conduct which would have sustained either civil or criminal penalty in appropriate proceedings. But the unequivocal ruling of that case was that criminal penalties cannot be applied in civil contempt proceedings. 221 U. S. at 444, 449, 451-452. Not only the result, but the whole tenor of the opinion was to the effect that the character of the proceeding as a whole, whether as civil or criminal, must be correlated with the character of the penalty imposed, and that the two cannot be scrambled, regardless of the fact that the conduct constituting the contempt would support the imposition of either type of relief in a proceeding appropriate to the kind of relief given.4 Not simply the remedy sought but the character of the proceeding in which it is pursued, it was held, determines the validity of the relief afforded.5
*597This ruling, as I have previously maintained, was one not only of historical grounding but of constitutional compulsion.6 Moreover, it recently has been reinforced by Rule 42 (b) of the Federal Rules of Criminal Procedure, requiring that the notice prescribed for instituting the proceeding “shall state the essential facts constituting the criminal contempt charged and describe it as such.”7 (Emphasis added.)
Hence, under the rule of the Gompers case and others following it, it is clear that the district judge had no power in this case to impose the criminal penalty of a flat $50 fine and it is equally clear, on the record,8 that he ex*598ceeded his power in denying the Commission civil coercive relief altogether.9
Moreover, I think it is clear that both of these problems are presented for our determination on the state of the record here. It is true that Young did not appeal from the District Court’s judgment to the Circuit Court of Appeals, and that he paid the fine. But the Commission appealed from that judgment in its entirety, as it had a right to do,10 unless the payment of the fine exhausted all judicial power to deal further with the proceeding. This indeed is a basis upon which Young maintains that the Circuit Court of Appeals had no power to reverse the District Court’s judgment.11
*599But clearly, as the Court holds, such power could not be wanting, if the litigation was exclusively civil in character. On the contrary the action of the Circuit Court of Appeals was exactly in accordance with the ruling in the Gompers case and was required by it. In both cases the proceedings were wholly civil in character. In both a criminal penalty was imposed. And in both the judgment laying it was reversed and the cause was remanded to the trial court for further proceedings looking only to the giving of civil relief.
The only difference is that in the Gompers case the contemnors had not entered upon the service of the void criminal sentence of imprisonment but appealed from it, while here Young paid the fine and did not appeal. That action on his part, however, cannot oust the Commission of its statutory right of appeal and review or of its right to civil relief.12 If the contempt proceeding were criminal in character, a different question might be presented.13 But compliance with a void criminal penalty, void because imposed in a wholly civil proceeding, cannot *600make it valid or oust either the courts of their civil jurisdiction in matters of relief or opposing parties of their rights in that respect.
In short, the Commission was forced to appeal from the judgment rendered, if it was not to acquiesce in what the court had done and thereby suffer unauthorized thwarting of its statutory investigating power. That judgment was rightfully taken in its entirety to the Circuit Court of Appeals, was reviewed by that court, and was reversed not partially but completely.14 Our action in granting certiorari brought here for review the entire judgment of the Circuit Court of Appeals, including its reversal of the criminal judgment rendered by the District Court as well *601as its mandate for civil relief.15 Hence in my opinion we are forced to take action upon the judgment as a whole, in both civil and criminal phases.
Since I am in agreement with the Court’s view that the Gompers ruling and others in accord with it are controlling in this case, I think the judgment of the Circuit Court of Appeals should be affirmed, though with modification in one respect.16 I find it difficult, however, to reconcile the action taken here with what was done in the Mine Workers decision. A majority there held, as I thought contrary to the Gompers ruling, that civil and criminal contempt could be prosecuted in a single contempt proceeding conducted according to the rules of procedure applicable in equity causes,17 and that both types of relief, civil and criminal, could be imposed in such a mixed proceeding. It was also held that on review the appellate court is free to substitute its own judgment concerning the nature and extent of both types of relief for that of the trial court, and therefore that in remanding the cause for further proceedings there was no necessity to leave room for the further exercise of the trial court’s discretion in relation to either type of relief.
If in that case a single mixed proceeding could suffice without regard to the requirements of Rule 42 (b) and the *602Gompers line of decisions concerning procedures to be followed in instituting and conducting contempt proceedings, for the imposition of both civil and criminal penalties, I see no valid reason why the same thing could not be done in this cause or why both the criminal fine imposed by the District Court and the civil relief given by the Circuit Court of Appeals should not be allowed to stand.
It is true that if the proceeding is to be taken as having been both civil and criminal a serious question would be presented on the terms of § 268 of the Judicial Code whether imposition and payment of the fine here did not exhaust judicial power to deal further with the proceeding, more especially in its criminal phase.18 But that question too, I take it, necessarily would be settled if the Mine Workers ruling were to govern here.
It is also true that in this case the United States was not a party by that name, as it was in the Mine Workers case, to the civil litigation in which the contempt proceeding arose or to the contempt proceeding itself. But the Commission was the moving party in both, representative as such of the public interest as the trial court pointed out.19 And, in view of the vast liberality allowed by the Mine Workers decision concerning matters of procedure and relief in contempt proceedings, it hardly can be a solid ground for distinguishing the cases that in one the public interest was represented, as to the criminal phase, eo nomine United States, in the other under the name of the Securities and Exchange Commission. Cf. In re Bradley, *603318 U. S. 50. Indeed the record shows that in the present case the United States Attorney and the Assistant United States Attorney participated in the contempt proceeding in the District Court.
Notwithstanding these difficulties, since the Court rests the decision in this cause upon the Gompers rule, which in my opinion represents the settled law, I join in the affirmance of the judgment of the Circuit Court of Appeals, both insofar as it reversed the District Court’s judgment because of the denial of coercive relief and in relation to its reversal of the criminal penalty imposed by the District Court.
But, while there can be no question of the Court of Appeals’ power in proper cases to review and revise civil relief given in the District Court, in this case no such relief had been awarded. In my opinion the question of the character and scope of that relief was a matter, in the first instance, for the District Court’s judgment rather than for the Court of Appeals. Accordingly, I would modify the judgment of reversal in the civil phase so that the cause would be remanded to the District Court with directions to exercise its discretion in framing the relief adequate and appropriate to make effective the Commission’s right to disclosure.20
See In re Fox, 96 F. 2d 23; Norstrom v. Wahl, 41 F. 2d 910.
The application in contempt was made by affidavit setting forth the facts alleged to constitute the violation. The contempt proceeding was entered upon the civil docket, being cause “No. 2863, Ciyil, Securities and Exchange Commission v. Penfield Company of California." Young was first commanded to appear and show cause why a further order should not be made directing him “to show cause why *596an order should not be made holding said A. W. Young in contempt of this Court and to be dealt with accordingly.” The order of citation followed in the same terms. At the hearing counsel for the Commission maintained consistently and urgently that the proceeding was exclusively civil, not criminal in character. Not until pronouncement of judgment was any step taken indicating the proceeding to be criminal in nature.
The validity of the order for production was sustained on appeal. 143 F. 2d 746.
See the Court’s discussion in Gompers v. Bucks Stove & Range Co., 221 U. S. 418, particularly at pp. 444-449, 451 if.; see also discussion in United States v. United Mine Workers, 330 U. S. 258, dissenting opinion, p. 363, Part III.
The Gompers opinion, as I understand it, does not hold that the character of the relief sought is exclusively the criterion of the character of the proceeding. It was said to be a factor to be taken into account. But, in view of the Court’s stress upon other factors, including the private or public character of the complainant, whether or not the contempt proceeding arises in and as corollary to civil litigation, and *597the necessity for observing distinct procedural requirements in the course of trial, the case seems clearly to rule that the character of the proceeding determines the nature of the relief which can be given rather than the reverse.
See the references cited in note 4 supra; and see note 5.
“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. See United States v. United Mine Workers, 330 U. S. 258, dissenting opinion, p. 372, and note 45.
The rule did not become effective until March 21, 1946, hence was not applicable to the present proceeding which was instituted and concluded in the trial court prior to that date.
See text infra. The record does not show that the function of the subpoena had been exhausted at the time of the judgment in contempt, although this was Young’s contention accepted, apparently, by the District Court. The contrary, in fact, affirmatively appears. The subpoena did not purport to be issued exclusively in connection with and for the purposes of the criminal trial which transpired in the District Court between its issuance and the time of the judgment in con*598tempt. Counsel for the Commission expressly stated that the subpoena was not limited to that matter and the court said, after referring to the period of the criminal suit: “Whether that period of time is covered by what the Securities and Exchange Commission seeks or not, I don’t know.”
The court made no finding that the subpoena’s function had been exhausted. The only reason assigned for refusing civil relief was that the court had sat in the criminal trial for six weeks during which it had “listened to books and records,” as well as witnesses produced “from all over the United States in connection with the Penfield matter.” Taking judicial notice of its own proceedings, the court said: “. . . in that trial the evidence was clear and definite . . . that during one period of time this defendant [Young] had nothing whatsoever to do with the Penfield Company.” These grounds, of course, were not the equivalent of finding that the records covered by the subpoena had been produced or that the Commission had no power or valid reason for pursuing its statutory investigation through the subpoena beyond the confines of the closed criminal trial.
See note 8. And see text infra preceding note 20.
28 U. S. C. § 225; see Clarke v. Federal Trade Commission, 128 F. 2d 542; Lamb v. Cramer, 285 U. S. 217, 220.
The principal contention in this respect is based on § 268 of the Judicial Code, 28 U. S. C. § 385, and the decision in In re Bradley, 318 U. S. 50. The Bradley case, however, was one in criminal contempt and the decision was that in such a case § 268 forbids imposition as penalty of both fine and imprisonment. The penalties being al*599ternative by the section’s terms, it was held that payment of the fine exhausted the court’s power.
The Bradley case therefore presented no question of the applicability of § 268 in civil contempt proceedings or of its effect if applicable. Compare the majority and concurring opinions in In re Sixth & Wisconsin Tower, Inc., 108 F. 2d 538. It cannot be taken as having ruled that the court’s invalid imposition of criminal punishment in civil contempt proceedings or satisfaction of such a void sentence exhausts either the trial court’s power or that of an appellate court on review to deal with the civil contempt by affording civil relief or to avoid the invalid criminal judgment.
Whether or not § 268, if applicable to a so-called mixed civil-criminal contempt proceeding, would forbid the imposition of relief both by way of fine and imprisonment, one punitive, the other coercive and remedial, need not be considered in view of the holding that this proceeding was exclusively civil in character.
See notes 10, 14.
See note 11 supra.
The opinion of the Circuit Court of Appeals states: “Young did not appeal from the order holding him in contempt. That decision is final and the only question before us is the extent of the remedy to which the Commission is entitled.” 157 F. 2d 65, 66. Ruling that the cause did not become moot by reason of Young’s payment of the fine, the court further held the District Court had abused its “discretion” in not granting the full relief sought by the Commission. The concluding paragraph of the opinion stated: “The order imposing the fine is reversed and the case remanded to the district court for an order requiring Young’s imprisonment to compel his obedience to the order to produce the documents in question.” The opinion concluded: “The order of the district court is reversed,” 157 F. 2d at 67, and the formal order for judgment entitled “decree” directed “that the order of the said District Court in this cause be, and hereby is, reversed, and that this cause be, and hereby is remanded to the said District Court for further proceedings in accordance with the opinion of this Court.”
The notice of appeal filed in the District Court is not set forth in the printed record here. But the “Statement of Points on Which the Appellant Intends to Rely,” filed in the Court of Appeals, specifies that “the District Court erred in ordering Young to pay a fine of $50.00 instead of imposing a remedial penalty calculated to coerce Young to produce or allow inspection of the books and records . . . .”
In this state of the record it cannot be taken that the appeal and the judgment of the Court of Appeals did not comprehend the criminal penalty.
This Court’s action in granting certiorari, 329 U. S. 706, was not limited to any question or phase of the Court of Appeals’ action, but brought up the judgment in its entirety. Since that court’s judgment comprehended the reversal of the criminal penalty imposed by the District Court, that phase of the Court of Appeals’ judgment is necessarily here for review and determination.
See text at note 20.
See United States v. United Mine Workers, 330 U. S. 258, dissenting opinion, p. 363, Part III. The rule to show cause issued in that case provided: “IT IS FURTHER ORDERED, that the accused, and each of them, shall, unless waived by them, be tried upon said charges of contempt by the court with an advisory jury to be empanelled by this court.” (Emphasis added.) The advisory jury was waived.
See note 11 supra and text.
The court inquired of Commission counsel, in response to argument that the proceeding was exclusively civil, since it arose in the course of civil litigation and sought only remedial relief for one of the parties, and not as an independent proceeding in the public interest to vindicate the court's power: “The Securities and Exchange Commission does not operate for itself, does it? I mean it operates in the public interest, doesn't it?”
E. Ingraham Co. v. Germanow, 4 F. 2d 1002, 1003.