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Peo., Scott v. Barbers & Beauty Clt'rsts. Assn.

JANUARY 22, 1973.

THE PEOPLE EX REL. WILLIAM J. SCOTT, ATTORNEY GENERAL, PLAINTIFF-APPELLEE,

v.

MASTER BARBERS & BEAUTY CULTURISTS ASSOCIATION ET AL., DEFENDANTS-APPELLANTS.



APPEAL from the Circuit Court of Cook County; the Hon. DONALD O'BRIEN, Judge, presiding.

MR. JUSTICE GOLDBERG DELIVERED THE OPINION OF THE COURT:

On July 11, 1969, in litigation between People of the State of Illinois, by William J. Scott, Attorney General of Illinois, (plaintiff) and Master Barbers and Beauty Culturists Association of Chicago, Inc. (Association), and certain of its officials including Philip Meli, (defendants), a consent decree for injunction was entered. This decree enjoined and restrained the Association and all of the defendants, their successors, etc., and agents from participating in any undertaking for the purpose of controlling, maintaining or making uniform prices at which barbering services were offered to the public.

On December 30, 1970, plaintiff filed a petition for a rule to show cause against the Association, the said Philip Meli, Al Parello, a vice-president of the Association, and also against Anthony Mastronardi (respondent) asking that all of them be held in contempt for violation of the injunction. After full hearing, the court entered an order finding the respondent in contempt for violation of the decree and requiring him to pay a fine of $500. In the same order, the court adjudged the Association, Philip Meli and Al Parello not guilty of contempt. Respondent appealed from this order directly to the Supreme Court of Illinois, which transferred the cause to this court.

In his brief, respondent urges that because he was tried on criminal charges and acquitted for the same alleged offense involved in the contempt charge, constitutional principles preventing double jeopardy forbid further punishment; since he was not named in the injunction and he did not aid or abet any other person in violation thereof, his independent conduct does not constitute contempt; and, finally, that the proceedings denied him due process of law. Plaintiff responds with the arguments that principles against double jeopardy do not bar punishment of respondent for contempt; respondent is bound by the injunctional order because he had actual knowledge thereof and acted in concert with the parties to the cause in its violation; respondent is in contempt because he violated the injunction while acting as an agent for the named parties; and, finally, that the contempt proceedings did not deny respondent due process of law.

The evidence showed that Mastronardi, a barber shop owner and also secretary of the Journeymen Barbers Union, Local 576, visited John Giovingo's barber shop in Calumet City in December of 1969 to persuade him to raise his prices. Giovingo was a member of the Association. He testified that Mastronardi returned the following day and told him that if he did not raise his prices his barber employees, members of Local 576, would be pulled out of the shop. Giovingo raised his prices.

Larry Adams, a barber shop owner, testified that in April of 1970 he reduced his prices for children and senior citizens. His only barber employee had agreed to this plan. The next day Mastronardi called him and threatened him about the price reduction. The following day, May 1, 1970, Mastronardi, with two officials of the Association, Parello and Meli, drove to Adams' shop in one car. Meli and Mastronardi tried to convince Adams not to reduce his prices. Mastronardi threatened to "mess him up." Mastronardi also told Adams that he owed 17 months dues to the Association. Adams reinstated his original prices.

In November of 1970, Adams and his new partner, Nick Reda, again decided to reduce prices. Mastronardi telephoned Adams' shop and spoke to Reda on the phone about these reductions. Reda did not come to work the next day, but two cars drove to Adams' shop and four persons got out, including Mastronardi and Meli. Mastronardi pointed at the sign in Adams' window advertising the price reduction and again threatened Adams who kept the door locked. Adams filed a criminal complaint based on this incident, but Mastronardi was acquitted.

Mastronardi admitted having knowledge of the injunction on May 1, 1970 and that he possibly knew of it in December of 1969. Mastronardi testified that the reason for his visit to Adams' shop in May of 1970 was to talk with Joel Carson. He had, however, heard a rumor that Adams had reduced his prices and considered this a violation of his contract with Local 576, since barbers' salaries are, in part, based upon a percentage of haircut prices. He claimed to have called a meeting with Parello and Meli to discuss this grievance pursuant to the terms of the contract between Local 576 and the Association. He testified that Meli and Parello attempted to reinstate Adams and that he did not participate in this, nor discuss the price increase until they had left the shop. At this time, Adams said he would reinstate the original prices.

Mastronardi testified that, in November, he again called the Association and arranged a meeting over the last price reduction. He and his business representative arrived with representatives of the Association, but Adams locked the door and would not admit them.

The first point raised by respondent involves the question of double jeopardy. (See Ill. Const. 1970, art. I, sec. 10. Also U.S. Const. amend. V.) In the answer filed by respondent to plaintiff's petition for a rule to show cause, respondent alleged that he had been acquitted in the Criminal Division of the circuit court of Cook County on charges of assault and intimidation initiated by Larry Adams; and, consequently, that the proceedings seeking to hold him in contempt constituted double jeopardy. This contention was overruled by the trial court. Defendant's argument here is that the criminal proceedings as well as the within contempt proceedings could both have resulted in depriving him of his liberty; and, therefore, there was double jeopardy.

• 1 We find this contention unavailing. In the criminal proceedings, respondent was charged with assault and also with intimidation. An assault is committed when a person "* * * engages in conduct which places another in reasonable apprehension of receiving a battery." (Ill. Rev. Stat. 1971, ch. 38, par. 12-1(a).) In the intimidation charge, the act in question was communication of a threat. (See Ill. Rev. Stat. 1971, ch. 38, par. 12-6.) In the proceedings at bar, all counsel agree that respondent was charged with criminal contempt, which is directed to preservation of the dignity and authority of the court. (See People ex rel. Kazubowski v. Ray, 48 Ill.2d 413, 416, 272 N.E.2d 225.) It is apparent from this statement that widely distinct elements were involved in the two proceedings. The component legal elements of assault or intimidation are not present in this contempt proceeding and have no materiality here. Thus, even though both proceedings may have related to the same general transaction between respondent and Adams, the conviction or acquittal of one constitutes no bar to prosecution for the other. (See People v. Flaherty, 396 Ill. 304, 309.) Furthermore, the courts of Illinois have frequently stated and "* * * have repeatedly held that contempt is not a crime." (People ex rel. Chicago Bar Association v. Barasch, 21 Ill.2d 407, 410, 173 N.E.2d 417.) Both constitutional provisions above cited used the words "for the same offense" as the basic element of double jeopardy. As shown, these proceedings do not involve the same offense as did the former criminal case. The attempted defense of double jeopardy is inapplicable here.

Respondent next urges that he was not a party to the original proceedings which resulted in the injunction; did not aid or abet any other person in violation thereof; and, therefore, he has been wrongfully punished for contempt. Many cases are cited in respondent's brief decided by the courts of Illinois as well as by the Federal courts in this and other circuits. We need not consider or analyze each of these cases. The correct and proper principle of law to be applied in this case is set forth in the Illinois Statute on Injunctions as amended in 1967. (Ill. Rev. Stat. 1971, ch. 69, par. 3-1.) The statute provides that orders granting injunctions and restraining orders are:

"* * * binding only upon the parties to the action, their officers, agents, servants, employees, and attorneys, and upon those persons in active concert or participation with them who receive actual notice of the order by personal service or otherwise."

The language of this statute closely parallels and in some respects is identical with the wording of the Federal Rules of Civil ...


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