On Petition for Rehearing.
The Administrator has filed a petition for rehearing or for a clarification of our original opinion in which wc sought to announce three conclusions: (1) That in advance of a decree adjudging that a litigant should pay a specific sum to a specific person, such litigant could not be adjudged and sentenced in contempt for failing to pay such specific sum to a specific person, or to someone else in his behalf; (2) that the Administrator has no right under the Act to bring suit for the recovery of wages due employees; and (3) moreover, contempt proceedings by the Administrator could not, in the instant case, serve the function of a plenary suit for the ascertainment and recovery of wages due employees, and even if the contrary were true, such an adjudication could not operate retroactively so as to support the prior citation in contempt.
We did not pass on the other allegations of violation of the injunction alleged in the petition since the Court below had not ruled on them.
We regard wages due employees under the Fair Labor Standards Act, 29 U.S.C.A. § 201 et seq., as a debt or as compensation due from the employer.11 A conviction in contempt, whether it be civil or criminal, contemplates the imposition of a fine or imprisonment, but neither fine nor imprsonment should be inflicted as the means for the collection of a debt.12
So that, if the purpose of this proceeding was, as the lower Court held, the Administrator frankly admitted, and as its petition for rehearing now seems to concede, the collection of wages due employees through the expedient of a “compensatory fine,” the Court would be compelled to answer that neither imprisonment nor a fine in the amount of the debt, and in order to collect the debt, due for non-payment of wages could be sanctioned.
We do not mean that the Administrator in this case could not show as an act of contumacy the fact, if it be a fact, that Defendants have refused to comply with the injunction by failing to pay employees within the Act the wages called for by the Act. But even if he were authorized to sue for wages due employees, and in that capacity had secured a specific judgment for the amount of the wages due, he could not then maintain contempt proceedings for the avowed purpose of using the punitive powers of such a proceeding to collect the judgment through the device of “a compensatory fine in an amount equal to the underpayments,” which, stripped of its nomenclature and viewed in the light of reality, would show up simply as the imposition of punishment in an attempt to collect a debt.
Moreover, neither the Administrator nor this Court has the right or the power to prescribe before the trial the punishment that the trial Court should impose.
In the light of the foregoing, we are of the opinion that the petition for rehearing should be, and the same is hereby, denied.
In Overnight Motor Co. v. Missel, 316 U.S. 572, 62 S.Ct. 1216, 86 L.Ed. 1682, the Court held that even liquidated damages for failure to pay minimum wages were “compensation, not a penalty or punishment by the government.”
Everett v. Sparks, 107 Ga. 48, 32 S.E. 878, 73 Am.St.Rep. 107; Clements v. Tillman, 79 Ga. 451, 5 S.E. 194, 11 Am.St.Rep. 441.