PROCEDURE IN CONTEMPT CASES.

APRIL 26 (calendar day, APRIL 27), 1912.-Referred to the House Calendar and ordered to be printed.

Mr. CLAYTON, from the Committee on the Judiciary, submitted the

following

REPORT.

[To accompany H. R. 22591.]

The Committee on the Judiciary, having had under consideration H. R. 22591, to amend an act entitled "An act to codify, revise, and amend the laws relating to the judiciary," approved March 3, 1911, report the same back with the recommendation that the bill do pass.

The bill leaves section 268 of the judicial code, formerly section 725 of the Revised Statutes, in full force and inserts five new sections, none of whose provisions conflict with said section 268.

ANALYSIS OF BILL.

By section 268a, in such cases of contempt specified in section 268 as constitute a criminal offense under any statute of the United States or at common law, the proceedings against the accused party shall be "as hereinafter provided "; that is, in the subsequent section

of the bill.

Most of the important provisions of the bill are contained in section 268b. Before action by the court, except in the cases excepted from the operation of the bill, there must be presented a formal charge showing reasonable ground; and before the party is put upon trial he must be afforded an opportunity to purge himself of any actual or technical contempt which he may have committed. He can not be arrested until he has opportunity to either purge himself or make answer and has refused to do either. If arrested, or in case the matter can not be disposed of on the return day, he may be required to give bail.

The trial is by the court (1) in case no jury be demanded by the accused, (2) if the contempt be in the presence of the court or so near thereto as to obstruct the administration of justice, or (3) if

the contempt be charged to be in disobedience of any lawful writ, process, order, rule, decree, or command entered in any suit or action brought or prosecuted in the name or on behalf of the United States. In other cases the trial is to be by jury.

Section 268c provides for the preservation of bills of exception, for review upon writ of error, for stay of execution pending proceeding, for review, and for bail in case the accused shall have been sentenced to imprisonment.

Section 268d excepts from the operation of the act contempts in the presence of the court, or so near thereto as to obstruct the administration of justice, and contempts committed in disobedience of any lawful writ, process, order, rule, decree, or command entered in any suit or action brought or prosecuted in the name of or on behalf of the United States, and provides that in the excepted cases as well as in all other cases not specifically embraced within section. 268a, the punishment shall be in conformity to the usages at law and in equity now prevailing.

Section 268e bars proceedings for contempt unless begun within one year from the date of the act complained of, and preserves the right of criminal prosecution, notwithstanding any proceeding and punishment for the contempts covered by the bill. It also excepts from the provisions of the bill any proceedings for contempt pending at the time of its passage.

Thus it is seen that the bill applies and gives a jury trial, with the exception noted, in all proceedings for contempt wherein the acts alleged to have been committed constitute a criminal offense, either under any Federal statute or at common law. The trial where a jury is had, is governed (sec. 268b), as near as is practicable, by the practice in criminal cases prosecuted by indictment or upon information.

Before calling further attention to the provisions of the bill now reported it is appropriate to review some of the contentions of those who have opposed every form of legislation whatever on this subject.

OBJECTIONS ANSWERED.

All the grounds of objection are reducible to two heads:

First. That any legislation whatever materially limiting or curtailing the power of the courts in the trial of contempts is unconstitutional.

Second. That any interference with the full and complete dominion or discretion of the judge in contempt cases tends to disorganization and a weakening of judicial efficiency.

Let us consider first the constitutional objections.

It is said that although the courts inferior to the Supreme Court owe their existence and jurisdiction to congressional action, yet a distinction should be made between the jurisdiction and judicial power, for instance, in the citation, trial, and punishment of a party charged with contempt of court.

The controversy goes back over 60 years. In 1831 Congress passed an act limiting the power of the courts subjectively; that is to say, it lopped off some of the jurisdiction which the court had assumed and exercised-a jurisdiction, or power, if the latter term be pre

ferred, which Congress believed, and by its legislation asserted, was a usurpation. Never, until within a very recent period, was the authority of Congress to do that questioned, either by the courts or by any respectable authority. The particular circumstance or event, instigating the act of 1831, was the punishment by Judge Peck in Missouri, as for a contempt of court, of a party who had criticized one of his decisions in the columns of a newspaper.

The law before the act of 1831 read thus:

The said courts shall have power to impose and administer all necessary oaths, and to punish, by fine or imprisonment, at the discretion of the court, contempts of their authority.

The act of 1831 consisted in the addition of a proviso, reading as follows:

Provided, That such power to punish contempt shall not be construed to extend to any cases except the misbehavior of any person in their presence, or so near thereto as to obstruct the administration of justice, the misbehavior of any of the officers of said court in their official transactions, and the disobedience or resistance by any officer, or by any party, juror, witness, or other person, to any lawful writ, process, order, rule, decree, or command of the said court.

The extensive scope of this amendatory statute has been generally overlooked. The Federal courts were assuming and exercising the unlimited and unchecked powers resorted to by common-law courts, of deciding for themselves, not only the mode of procedure and degree and amount of punishment, but of selecting for themselves particular acts of alleged misconduct which should be placed in the category of contempts. Congress treated the term "power" synonymous with "jurisdiction," circumscribed the field of jurisdiction, specified the acts which should constitute contempts, and said that such power or jurisdiction shall not extend beyond these specified acts.

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It has been suggested that Congress might have refused to create the inferior courts, or even the Supreme Court, and have thus caused the failure of the Government.

But it is said that when Congress has acted and established a Federal court the common-law and equity powers of the courts immediately flow into these judicial receptacles out of the Constitution. It is only necessary to examine this new doctrine to know to what absurdities it would lead. The common-law courts of England, with the King's bench at their head, in addition to administering statutory law and the common law proper, exercised certain parliamentary powers. In the English system the legislative and judicial departments were, and are, entirely independent of each other. It is true that the courts were bound by acts of Parliament as construed by them, but outside the statutes their powers were as free from limitation as those of Parliament itself. They were the exponents and final arbiters of public policy for the Kingdom.

Though it is often said that the three departments of our Government are separate and independent, which is true in the sense that they must not invade each other's constitutional domain, and thus destroy each other, yet it is also true that arbitrary unchecked power does not abide with either of them. As the Supreme Court has well expressed it, in Yick Wo v. Hopkins (118 U. S. Rep., 369):

When we consider the nature and the theory of our institutions of government, the principles upon which they are supposed to rest, and review the history H R-62-2-vol 3-43

of their development, we are constrained to conclude that they do not mean to leave room for the play and action of purely personal and arbitrary power.

To concede that the courts might, even with the limits fixed in the act of 1831, exclusively decide when a contempt has been committed, and the amount or degree of punishment, with no power in Congress to set a limit thereto, would be to concede to the courts the power to annul every act of Congress, to paralyze the Executive arm, to confiscate all property, and destroy all liberty. Of course, few, if any, believe that the courts would ever proceed to such extremes, but it is sufficient to say that, according to our interpretation, the framers of the Constitution took care to safeguard the people against the possibilities of all such calamitous tendencies.

Referring to this bill, and comparing its provisions with the proviso added in 1831, it is seen that the bill only changes the procedure in contempt cases, while, as before stated, that proviso limited the jurisdiction subjectively.

The opposition was represented before the committee by able counsel and many authorities were cited, few of which, however, in our opinion, had any direct bearing on the question from a constitutional point of view. In fact, the power of Congress, as exhibited in the act of 1831, was so generally and uniformly conceded that not a single case has been found which ever questioned or doubted it. A few cases which, though not directly bearing upon the point of constitutionality, yet shed more or less light upon it will now be

noticed.

It is argued that Congress can not require a court of equity to try issues of fact by jury. That is unquestionably sound doctrine, and the case of Brown v. Kalamazoo, Circuit Judge (87 Mich., 274), is sound law. But it is wholly inapplicable here. No one has thus far ever insisted that contempt is of equitable cognizance, or other than what the textbooks designated, namely, a special proceeding, criminal in its nature, not necessarily connected with any particular suit or action pending in the court.

Numerous State cases were cited in argument. They may all be answered as a class. The relation between Congress and Federal courts is not the same as that between State legislature and the State courts. The constitutions of the various States themselves provide for and establish the court, partition the powers of government between the legislative, executive, and judicial departments, prescribing safeguards, and defining their powers in detail; whereas the Federal Constitution has delegated full and complete control of the matter to Congress. Nor should the fact be overlooked that the State decisions on the subject are often based upon precedents of the common law, which is no part of the Federal system. Thus, in Ex parte McCowan (139 N. Car., 95), that being typical of many such cases relied upon, it was said:

We are satisfied that at common law the acts and conduct of the petitioner, as set out in the case, constitute a contempt of court, and if the statute does not embrace this case and in terms repeal the common law applicable to it, we would not hesitate to declare the statute in that respect unconstitutional and void for reasons which we will now state.

In Finck v. O'Neill (106 U. S. Rep., 272) it appeared that Congress has taken from the court all power to enforce its judgment,

and the act of Congress was upheld by the Supreme Court of the United States. In that case (p. 280) the court said:

The United States can not enforce the collection of a debt from an unwilling debtor, except by judicial process. They must bring a suit and obtain a judgment. To reap the fruit of that judgment they must cause an execution to issue. The courts have no inherent authority to take any one of these steps, except as it may have been conferred by the legislative department; for they can exercise no jurisdiction except as the law confers and limits it.

And in Cary v. Curtiss (3 How., 236, 254) the same court said:

The courts of the United States are all limited in their nature and constitutions, and have not the powers inherent in courts existing by prescription, or by the common law.

But in section 720, of the Revised Statutes, we have a statute of Congress prohibiting the Federal courts from issuing injunctions in certain cases, and the constitutional validity of that statute was declared in Sharon v. Terry (36 Fed. R., 365). Now, the writ of injunction is the arm of the Federal courts in the exercise of their equitable powers, which it has been urged enjoy complete immunity from congressional action. And here a Federal circuit court sustained an act of Congress which substracted an important part of equitable jurisdiction. Anyone taking the trouble to examine the judiciary act of 1789, with or without subsequent additions and amendments, will observe that it consists, in large part, of regulations of and limitations upon jurisdiction.

We close this head with the quotation from Ex parte Robinson (19 Wall., 505), cited with approval in the case of Bessette v. Conkey 194 U. S., 327), which is so clearly and obviously applicable and conclusive that no comment appears to be necessary:

The power to punish for contempts is inherent in all courts. The moment the courts of the United States were called into existence and invested with jurisdiction over any subject they became possessed of this power, but the power has been limited and defined by the act of Congress of March 3, 1831. The act, in terms, applies to all courts. Whether it can be held to limit the authority of the Supreme Court, which derives its existence and power from the Constitution, may, perhaps, be a matter of doubt; but that it applies to the circuit and district courts there can be no question. These courts were created by act of Congress. Their powers and duties depend upon the act calling them into existence, or subsequent acts extending or limiting their jurisdiction. The act of 1831 is, therefore, to them the law specifying the cases in which summary punishment for contempts may be inflicted. It limits the power of these courts in this respect to three classes of cases.

(1) Where there has been misbehavior of a person in the presence of the courts, or so near thereto as to obstruct the administration of justice.

(2) Where there has been misbehavior of any officer of the courts in his official transaction.

(3) Where there has been disobedience or resistance by an officer, party, juror, witness, or other person, to any lawful writ, process, order, rule, decree, or command of the courts. The law happily prescribes the punishment which the courts can impose for contempts. The seventeenth section of the judiciary act of 1789 (1 Stat. L., 73), declares that the court shall have power to punish of their authority in any cause or hearing before them by fine or imprisonment, at their discretion. The enactment is a limitation upon the manner in which the power shall be exercised, and must be held to be a negation of all other modes of punishment. The judgment of the court debarring the petitioner, treated as a punishment for contempt, was therefore unauthorized and void.