Brief for the United States — Nye v. United States

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Opinions below. ----------------------------------------- 1

SarintigheR. << codcaccciiccowcescccscsacccsccccouncepeceses 1

Questions presented - -.-.--------------------------------- 4 2

Statutes and rules involved.....--.---------- a aanieidiy idles 3

IE on ccccces weesteqcubbodeolebapesebenseeounee . 3

Summary FE sewn svnits eattomanaintimeniney ecnasse 11

Argument:

I. Unless the sakes proceeding was a civil nation, the

' _ writ-of certiorari should be dismissed or the judgment |

| ghould be reversed with direction to the Circuit

' Court of Appeals to dismiss the appeal--.----------- 16

II. The contempt adjudicated and charged was unmistak-

ably criminal and the proceeding was apgeepeinte

for the purpose......--- -.-----------+------- 24

be I iii. itis cite coracdoassiontn “ 24

2. The proceedings-----.----------- jo Cibidiin aki 27 |

ee cn itdrdeaneneceeonsnes 27

(b) The acts charged-_----....------------- 28

III. The findings support the adjudication of contempt - - -- 32

1. The petitioners’ conduct constituted “‘misbe-

: WO 06s oars htmatbibioonnadiagaans 33

2. The misbehavior was in . the presence of the

court or “‘so near thereto as to obstruct the

, administration of justice” .....---.------- 36

IV. The trial court was not deprived of jurisdiction by the

delay in filing a verification-of the motion for order

Cy fe Ee 40

V. The judgment of contempt did not fall with the settle- .

ment of Elmore’s action for wrongful death--- -- ---- 42°

Ceneletles... .. = oo secocaseb andes nannstiedradhtesteipned 43

Appendix... -..--.-------------------+-----------------< 44

ats . CITATIONS

Cases:

Aaron v. United States, 155 Fed. 833..------.------------ 41,42

‘Alaska Packers Assn. v. Pillsbury, 301 U.S. 174. ---------- 17

Bessette v. W. B. Conkey Co., 194 U. 8. 324.--------- 18, 19, 29, 30

- Bowles v. United States, 50 F. (2d) 848, certiorari denied, 284

UV. B, C68... cnccccccse ccesssdsebocncsedsccess selina 19

ee eee ‘ .

4 °

SR REN ENTS LF PONE oe anes an

Seer iewryr ° cee eer:

~ deat rh esr a peed nite te

Cases—Continued.

6 Butler v. Butler [1888] 13 L. R. P. D. 73.----.----------

Camarota v. United States, 111 F. (2d) 243, certiorari denied,

ET Fin cdi ednhbeowencdsane ai cotwedgecece

Christensen Engineering Co., Matter of, 194 U.S. ecxaepiien 24

, ; ul Call v. United States, 8 F. (2d) 20..-...-----+-+-------- 38

| Conley v. Unitd States, 59 F. (2d) 929. -...-------------- ~ 35

Y. Clark v. United States, 289 U. 8. 1-...----------------.- 36...

_. Cooke v. United States, 267 U.S. 517. ---.---+-------- eens ‘40

‘| Craig v. Hecht, 263 U. 8. 255--.---------------+----;-- 39

Creekmore v. United States, 237 Fed. 743, certiorari deni, ene

ee ONE RES SS eee eae CO ee |

: Cuddy, Petstioner, 131 U. 8. 280:-------------- whetan . 33, 35, 37

ms Doyle v. London Guarantee Co., 204 U. 8. 599__-- - -- RSE 29

Fox v. Capital Co., 299 U. 8. 105-----.------------------ 18, 26

sf Gompers v. Bucks Stove & Ranft Co., 221 U. 8. 418... ----- 19,

. 25, 27, 29, 30, 43

Goinpers v. United States, 233 U.S. 604_.-..----------- --- 19, 23

Grossman, Ex parte, 267 U. 8. 87. ----------------------- 19

_ @ussardi, In re, 74 F. (2d) 671.-.--.-------------------- 30

‘ bse Halsam, Ex parte, 2 Atk. A A ELE EE a 34

¢ % Hudgings, Ex parte, 249 U. 8. 378- - --------------------- 36

4 Kaplan Bros., In re, 213 Fed. 753, ceftiorsri denied, 234 ~

Li a) SRE ER epee cake eee a ee . ol

_ Kearny, Ex parte, 7 Wheat. 38.--.--------- Serial ante 19

Keeney v. United Detes, 47 9. Ch) 076. o.oo 25252222 - 40

‘ King v. Hall, 2 Black. W. 1110, 96 Eng. Rep. 655-- - - - - ---- 34

Kitcat v. Sharp, 48 L. T. 64....------------------------ 34

Kreplik v. Couch' Patents Co., 190 Fed. 565- - - -- - - a 31

Lamb v. Cramer, 285 U. 8. 217 ani eae hw Piiciencubs 26, 27, 28

~ Leman v. Krentler-Arnold Co., 284 U. 8. 448...-------:--- 18

Litler v. Thomsen, 2 Beav: 129. .-.---------------------- 34

Lord v. Veazie, 8 How. Moet hen So ba mmicne eawns 35

McCann v. New York Stock Exchange, 80 F. (2d) 211, certio;

i ’ ' pari denied, 299 U. 8. 603. -.--\. ----------+---------- 30, 38

McCrone v. United States, 307 U. &, 61---.-------- 12, 17, 18, 25

stn. ._, ‘Merchants’ Stock Co., Re, Petitioner, 223 U. 8. 639___-_-- 24, 25, 26

Michaelson v. United States, gE AE Raha ele eae gees Hepieaip ost 30, 33

aoe, Monroe Body Co. ¥! Herzog, 18 F. Or BOK. 2 ices

- . - “Morehouse v. Giant Powder Co., 2iifef'ed. 24. - - - - - - wewewa 41, 42

Tiss +S _ & Muloch, Re, 3 Sw. & Tr. 599, 1 ng. Rep. 140V.- ashitwa 34

; _. » Myers v. United States, 264 U. 8. 95-...------------------ 18,19 |

ss ‘National Popsicle Corp. v. Kroll, Me? (2d) 250.. Ea Ae wale 30 |:

ip Nevitt, In re, 117 Fed. 444._=...-----.------+------ sae Se

| _ New Orleans v. Steamship Co., 20 Wail. 887__...--------- 2

Sipe Oates v. United States, 233 Fed. 201, certiorari denied, 242 :

' ae 'U. 8. 633 <n eR Pew sannwonenre rene eas : 26, 40

sD Odum, In re, 138-N. C. 250 ( oh 41

: eo Sev Osborn v. United States, 50 F. (2d) 712...-2.2----------- : 17

Laer,

Cases—Continued. ' we, Ome, ~ \ Page

_ O'Shea v. O'Shea and Parnell (1890) 15 L. R. P. D. 59....-. 25, 34

_” People v. Severinghaus, 313 Ill. 456. .------------------- ge

Reconstruction Finance Corporation v. Prudence, Securities

_- Advisory Group, No. 69, present Term, decided Jan. 6,

1 ae "ite ss ssineis Canaan daiiin dies Adie dy ope 17

_ _ Rex v. Carroll, Wils., K. B: 74, 85 Eng. Rep. 500...-..---- 34

pres Robinson, Ex parte, 19 Wall. 505----------------------- 33, 37

- Savin, Petitioner, 181 U. 8. 267------------------ 32, 35, 37,42

- “Share v. United States, 50 F. (2d) 669.....----+--------- a oe

~ Sharland v. Sharland, 1°T- L. R. 492..... Jeecocdacnwutec 34

Sinclair v. United States, 279 U. 8. 749.-------------B-- 38

- Sixth & Wisconsin Tower [nc., In re, 108 F. (2d) 538-.--- 26

Smith v. Lakeman, 26 L. J. Ch. (N. 8.) 805.-.-\-------- 34

‘Snow v. Hawkes, 183 N. C. 365- -------------+--------- «84

Sona v. Aluminum Castings Co., 214 Fed 936. ..-.-- Ne

Star Spring Bed Co., In re, 203 Fed. Gib aaccccvcenspoange 31

- Toledo Newspaper Co. v. United States, 247 U. 8, 402--... - 15,

; | Ale . 19, 32,38 ©

Toledo Scale Co. v. Computing Scale Co., 261 U. S. 399... 18

Turk,and Wallen v. State, 123 Ark. 341--.----- hash piaiatalia 34

Wigion Tool Co. v. Wilson, 259 U. 8. 107. -----4.-------- 24, 25

United States v. Appel, 211 Fed. 495-- pe Re ae a Re 36

United States v. Bittner, 1) F. (2d) 93------------- ite ai

* . United States v. Goldman, 277 U. 8. 220...-------?----- “ee

United States v. Pendergast, 35 F. Supp. 593--. ----- aces 06, @

United States v. Shipp, 203 U. 8. 563, 214 U. 8. 386-----.- 34, 39

United States v. Tousey, 101 F. (2d) En cue manelte 18

Vaughan v. American Insurance, Co., 15 F. (2d) 58... ..00% 17

/ Vincennes Steel Corp. v. Miller {94 F. (2d) 347--------- =e 28

- Whittem v. | 08 Waid, 100. oo cncctanonsee eel aoa a. 34

Wi . Byrom Jackson Co., 93 F. (2d) 577.- 38, 19, 25, 26, 29, 31

Williams v. Lyons, 8 Mod. 189, 88 Eng, Rep. 138--.------ 34

‘Williams Thomas Shipping Co., In re The, [1930] 2 Ch. 368 - 34

Wingert v. Kieffer, 29 F. (2d) GO. we -endupsien- <9 Suehiiele , 31

Statutes: : ae be

Criminal Code, Sec. 135 (U.S. C., Title 18, Sec. 241)-...-- 37, 46

Judicial Code, Sec. 268 ¢U. S. C., Title 28, Sec. 385).... 2, 32, 44

Revised Statutes: *

Sec. 974 (U. 8. C., Title 28, Sec. 822)...------------ 26

Secs. 5399, 5404. .=-,/--~------------------------ 37, 46

Act of March 2, 1831%¢.'99, 4 Stat. 487/..-------- 83, 36, 37, 45

Act of Juns 10, 1872, ¢. 420,17 Stat. 378. -------------- 37

Clayton Act, ¢. 323, 38 Stat. 738-739, Bees. 21, 22 (U.S. C.,

Title 28, Secs. 386, 387) .---~- ---- 6 ea his wm einen one m 20, 31

Act of February 13, 1925, ¢. 229, 43 Stat. 936, Sec. 8 (c)

(U. 8. C., Title 28, Sec. 230)-.---.-------------- 2, 12, 17, 44

- _Aet of February 24, 1988, c. 119, 47 Stat. 904. --.------- 20

- Act of March 8, 1934, c. 49, 48 Stat. 5 ieee 13, 19, 20, 44 y

Statutés—Continued. - ehcd Page

Act of June 19, 1934, c. 651, 48 Stat. 1064, Sec. 1-------- 16

Act of June 29, 1940, ©. 445, 54 Stat. 688 (U. 8. C. A., «

: Title 28, Sec. 723b)....-------- Lewedpoonesercucesees 23

: ' U8. C., Title 28, Sec. Tee ee nedae ~eese 19

athe U. 8. C., Title 28, Sec. 654---------- Se a,

Miscellaneous: ;

Annual Practice, 1939, p 809. ..----.--------------2 25

23 A. L. R. 187.-.--- La canniavageabeopeoaberncepoccarn 34

Criminal Appeals Rules, promulgaged May 7, 1934: '

ee canenepeneasoodsocneqespeccceses 17

en nt eupucoesenoneesaccoesesecces 18

/ Fox, Contempt of Court, pp. 5-43... .--- eb sis oat be IB. 39

oP eee ere r 29

* pp. 202 et seq..---- Eoegeo ep enoaseguaresesepeeeos 33

Fox, The Practice in Contempt of Court Cases, 38 L. Q. R.

185, 188. ...-..----------------------------------- 25

' Frankfurter and Landis, Power of eas over -Procedure

in Criminal Contempts, in “Inferior” Federal Courts—A

‘ Study in Separation of Powers, 37 Harv. L. Rev. 1010,

ea ee ccescaweseoqegesanesoseescece 33, 3%

: Halsbury’ s The Complete Statutes. of England, Tit. Con-

\ * —* tempt of Court...-..---- oe te cet pesiapors 25.

“. Laski, Constructive Contempt’ in England, 41 Harv. L. Rev.

pag ECE SURO a ARIS OR 39

ma H. Rept. 858, 73d Co Did to leamerecdesabece 21, 22

| H. Rep}. 2047, 72d Cong 2d Sess.-....---------------- ie

_. _ ,, H. Rept,-2492,76th Cong., 3d Sess., p. 3---------------- 23

Robertson and Kirkham, Jurisdiction of the Supreme

Court of the United States, Secs. 381, 386 and p. 777,

Ge ceananasanagaupedaqecoeseqececoqoooscse 18

° Rules of Civil Procedure:

Rule 1...--..-..-.---------------+--- tO dF Seb eps 16

i, a ‘Rule 78......----------------------------------- 17

. 8. Rept. 257, 73d Cong., 2d Sess_-------- abaiened Saunas 21, 22

S. Rept. 1934, 76th Cong., 3d Sess. p. 1----.-;---------- (238

Peat eon ee

pp. 13-17...-----------------------------+------ 35

pp. 21-27........-----------------------+------- 37

pp. 68-74... ...---..--------+----------------- 33, 35, 37

i ar

ute Sgreme on the ited States

* Oorosts Tana, “ . Ey oeih

No. 558 | ) Gay

ix a C. MAYERS, PEITITONERS

ae :

Tue UNITED States OF AMERICA AND w. B.

Gut

ON WRIT OF CERTIORARI TO THE UNITED STATES OIROUIT

COURT<OF APPEALS FOR THE yueEss CIRCUIT

BRIEF FOR _ UNITED STATES

OPINIONS BELOW

The ‘District Court rendered no opinion. . th

findings of fact and judgment apptar at R. 153-.

158. The opinion of the Circuit Court of Appeals

(R. 167-173) is reported i in 113 F. (24) 1006.

, JURISDICTION °

The judgment of the Circuit Court of ‘asia | |

was ‘entered August 30, 1940.(R. 173-174). The

. petition for a writ of certiorari was filed Novem-

ber 7, 1940. The jurisdiction of this Court is in-

. voked under Section 240 (a) of the Judicial Code,

as amended by the: Act of Febraary 13, 1925

° ' | . -

(U.S. C., Title 28, Section 347). In the Govern-

ment’ s view, neither this Court nor the Circuit

Court df Appeals has: jurisdiction to review the |

judgment of the District'Court, «9° = *

QUESTIONS, PRESENTED oF

4, Neither the appeal to the Circuit Court of

Appeals. nor. the petition for a writ of certiorari

was filed within the time prescribed by the Crim-

- inal Appeals Rules, promulgated May 7, 1934.

There was no petition for an allowance of an ap-

peal, as required in criminal cases. prior to the

Criminal Appeals Rules. by Section 8 (c) of the —

Act of February 13, 1925 (U. 8. C., Title 28, Sec.

230) and still required in cases which are not

governed either by these Rules or by the Federal

Rules of Civil Procedure. Both the time and

method of appeal were proper, if the Rules of . .

Civil Procedure govern.) The question is whether

the civil rules, the oie Be

tice applies to the present case. The’ answer

largely depends on whether the petitioners were

accuse® and adjudged guilty of civil or criminal

contempt.

Assuming that. this Court has jurisdiction, the

following questions arise: “eo

2, Whether the findings. of the District Court

sustain. the judgment holding petitioners guilty. of

_“misbehavior, *..* * so, near’’ the court “‘as

“to-ebstruct. the administration of justice,” under

rules or the ald prac- :

pee

Section 268 of ihe J udicial Code pi S. C., ieee

- 28, Section 385) ?

3. Whether the evidence is er to support

the findings ?

“* 4, Whether the District Court was without

jurisdiction because the motion for.a rule to show

cause was not verified, although a verification was

filed before the respondents answered or the

' objection was made ? f

_. §. Whether the judgment of ‘dutepk should

be set aside because of the settlement of the ac-

7 4

- tion at law in connection with which the contempt.

-. Was committed ? ?

STATUTES AND RULES INVOLVED”

The statutes and rules invotved are set forth in

the eee infra, pp. 43-45. 7

STATEMENT

On March 18, 1939, W. H. thiitiore: administr

‘tor of the estate of his son James Elmore, insti-

tuted an action, in forma pauperis, in the United

' States District. Court for the Middle District of.

- . North Carolina against T. C. Council and Germain

Bernard, partners, trading as B. C. Remedy Com-

st f

pany (R. 153-154). The complaint-alleged-that——

James Elmore died as a result of the use of a pro- —

prietary medicine known as BO, manufactured and

' gold by the defendants, and claimed $30,000.00

ddtnages for negligence'and deceit in the manufac-

°¢

inn + inl tiling SD .

“ture and Labeling « of this siateaiee: Jurisdiction

was, based upon diversity of citizenship (R. 1-4).

The District Court appointed Willjam B. Guthrie

‘to represent Elmore in the prosecution of the ac-

tin (R. 153-154). - The defendants filed an answer

- on April 29, 1939, and asked for a jury trial (R.

6, 154).:

Qn April 19, 1939, shanily before the answer was

filed, Elmore mailed a letter addressed to District

Judge yes at Greensboro, North Carolina, ask-

ing that. action for wrongful death be dismissed. .

He enclosed a eopy of a letter of the same date to

W. B. Guthrie, his attorney, notifying him of his

‘desire to terminate the action. At the request of

Guthrie, the court delayed action, pending an in-

| eat vestigation (R. 154). On July 20, the petitioner,

Nye, appeared with his counsel before the District

Court in Greensboro and was examined under oath

with respect to his knowledge of Elmore’s letters to

Judge Hayes and to Guthrie. Nye admitted that -

he had. retained counsel to put a stop to Elmore’s

action, that Elmore’s letters were dictated by this

attorney and-written by his‘secretary, that he took

Elmore to the post office-to mail the letters, retain-

ing the registry receipt himself, and that he also

had his attorney prepare Elmore’s final account

as administrator and took Elmore to the’Probate

Court to file the acteunt_and have himself dis- ;

charged. But Nye alleged and testified that h¢ sans 3

these things at Elmore’ 8 request (R. 155).

, ee

| "Se ee

On August 29, 1939, the defendants moved to dis-

miss Elmore’s action on the ground that he had ~

~~ been discharged as administrator by the Clerk of

Che Court of Robeson County, North Carolina, and : {

the estate had been fully administered (R. 155). a.

me g was held on this motion on September 29,

1939, and W. H. Elmore testified upon oath re-

garding the circumstances under which he had been

discharged as administrator, as follows (R. 7-8):

That on the day before April 19th, 1939,

L, C. Mayers came to the place where I was

at work near Conway, South Carolina, and

gave me some liquor. I was - ditching.

After talking to me amdgiviz§ me liquor,

he said Mr. R. H. Nye wanted nie to come

to Lumberton to see him and that Mayers

had come After me; that Nye wanted to see

me about the case I had in Federal Court

against B. C. Remedy Co He got

me intoxicdted and Bia, > Fa to go

with him to Lamberton right then. He did

not want to wait for me to put.on clean

clothes or notify my daughter, with whom

I then lived and promised to bring me

* ba¢ks that afternoon. He took me about

sixty miles to R. H. Nye’s office in Lum-.--

berton aitd there Nye talked to me and told ©

me there was nothing in the case, that law-

yer Carlyle was a good lawyer and he said

there was nothing to it; that Nye’s daughter

had married a son.of defendant Council and

R. H. Nye was anxious to get the same

299054—41—2-2

.. stopped. He then sent; me: to his: Home

_ where I .was accompanied constantly by

L, C. Mayers, and spent the night, staying

with Mayers who continued to supply liquor

during the night, and the next morning

Mayers turned me over to Nye, who then

‘took me to a lawyer’s: -office where he had

me to sign up some~papers that I did not

understand because,of my condition; that

Nye took me to the Court House where some

other papers were ‘signed but I did not know

what they were. He then took mg to the

Post Office mailed some papers; that

Nye did not pay or promise to pay me any- *

thing. And Nye furnished the lawyer, paid

for everything and -the postage. and then

sent,me home by Mayers; that during all

this time I was intoxicated and did not

know what I was doing. I did not, know

_ that I had sworn that I had fully adminis-

tered my son James‘Elmore’s estate, and

did not know that I had’been discharged as

ing him to:dismiss my case

sete rayne) C. Remedy Company. I did -

not have.a chance to communicaté with my

lawyer and all this was done while I was

‘ intoxicated.

- administrator, nor that I had signed a letter «.

py mailed it to the J udge of the Federal

I have no education and my occupation ?

was a eotton mill hand.

I do not want the case stopped but I want |

it tried.

° 4 : os.

On the following day, September 30, 1939, Guth-

rie, through.an attorney named Brooks, filed a doc-

tment entitled ‘‘Motiori for Order to Show Cause”

(R. 9-12) in whick he set forth among other things

- the substance of Elmore’s laid and moved -

(R. 12): :

(1) for an order requiring Nye to.show

cause why he should not be attaclied and —-

held for contempt of court; 3

(2) that the court request the United

States Attorney to investigate ‘whether or

not a conspiracy was entered into b

between R. H. Nye, W. E. Timberlake and -

L, C. Mayers, all of Robeson Coynty, North

Carolina, to defeat the administration of

justice and the orderly process of this Court

and further as to whether or not they have

been guilty of subornation of perjury and

further whethgr they conspired to practice

a fraud and did practice a fraud upon this .

~. Court ;’’ :

(3) ‘that ‘this matter’’ be submitted a

and inquired into by the Grand Jury; and-

(4) “For such other and further pro-

cedure as to this Court may seem proper.” |

On the same day the District J udge issued an or-

der directing Nye and Mayers to show cause why |

they should not be adjudged in contempt of court,

“it appearing to the Court that W. H. Elmore, on

oath testified to facts that, the said R. H. Nye and

L. C. Meyers (Mayers) have been guilty of be- ~“.~

havior contemptuous of this Court.’ (R. 8-9).

’ Guthrie’s motion of September 30 was unveri- ~

fied, but on October 7, 1939, he a verification

? and prayed that it be attached to made a part

off the petition (R. 13). On October 30th, the —

respondents appeared specially and moved to

strike out service of the rule to show cause on the _

ground that the contemptuous conduct, if any, took

Rlace outside the jurisdiction of the court (R. 13-

14). The Court apparently treated this objection

as a general motion to dismiss the rule and denied

it, “The Court being of the opinion that the ques-

tion to be determined is whether thé respondents,

or either of them, is guilty of misbehavior in the

presence of *the Court, or 80 near thereto to

obstruct the administration of justice in this Court,

and that is a matter of fact to be determined by the

evidence and not on motion.”’ (R. 16). On the

same day, the petitioners filed answers giving their

own version of ‘the occurrence and denying any

wrongful conduct in connection with Elmore’s dis-

charge as administrator or any intentional dis-

respect to the court on intent to interfere with the

administration of justice (R. 17-25).

Evidence was thereupon introduced by Guthrie

and by the pan Som at the conclusion of

the prosecution’s testimony and at the end of the

ease, motions were made to dismiss (R. 16, 153).

_ The court set November 17 for argument of these .

motions, | On that date, petitioners amended their

motion to dismiss and for the first time presented

°o

| a,

: e .. wee

tne contention that the court was without juris-

“diction to issue the rule to show cause or to pro-

ceed because the motion. to issue the rule was

Tunverified (R. 15-16). | 7

On February 8, 1940, the District Court filed its

findings of facts and judgment (B. 153-158). The

court found that Mayers (also referred to as

Meares) and Nye, whosé daughter was married to

the son of C. T, Council, acted in concert to put a

stop to Elmore’s action against Council and Ber-

ffard (R. 156-157). Mayers was Nye’ s tenant and

knew Elmore (R. 156). Nye sent Mayers to bring

Elmore to Lumberton from his home in South

Carolina (R. 156.) Elmore is illiterate and feeble,

both .physically and mentally (R. 157). Mayers

found him working in a ditch (R. 15%), gave him

liquor (R. 158) and, without giving him time to

change his clothes, took him away with the prom-

ise to return him that night (R.-157). As soon

as Nye talked to him, he called Timberlake, his

attorney, by long distance telephone and arranged

to meet him at his office early the next morning.

Nye and Mayers arranged to keep Elmore in their

presence over night. Although he had a son liv-

ing in Lumberton, he and Mayers slept at Nye’s

house. In the morning Nye took Elmore to Tim-

‘berlake’s office, told Timberlake that Elmore:

wanted te drop his action in the District Court,

and that he, Nye, wanted it fixed up so as to end

the action once and for.all. Nye directed Timber-

ae Bea 10

: lake to ‘prepare the letters to Guthrie: indie. the ~ —

| District Judge, and to have Elmore discharged as -

| administrator (R. 157). Elmore did not -

ae remain intoxicated until he signed the letterrend—

ae final account, he was completely umer the domina:

| tion’ of Mayers and Nye, neither of whom paid or,

pro 1 itn anything to discontinue the action

(%. 196). Nye acted with the express purpose = -.

f obstructing the trial of the action on its merits. \,

His‘and Mayer’s conduct caused a long delay, sev-

eral hearings and enornious expense (R. 157-158)...

On ithese facts, the Court adjudged ‘Nye and

_ Mayers guilty of contempt of court, holding ss

their conduct constituted ‘‘misbehavior so near t97,

the presence of the court as to obstruct the admiin-

istration’ of justicé,’’ Nye was ordered to pay a

fine of $500 and costsf the contempt proceedings,

= @ ineluding $500 to Guthrie, who “through * * *

ii : untiring efforts and at great expense discovered

\ ‘and brought’ to the attention of the court the con-

tempt for its authority.’’ Mayers was fined $250.

; They were ordered to stand committed until they —

eomplied with the judgment (R. 158). Exceptions’

‘to. the findings and judyment were allowed by the

| District Court (R. 158-159).

| On March 13, 1940, Elmore, with fhe assent

| ' Guthrie; took a voluntary non-suit in fis action for

ie wrongful death (R: 25) upon payr ent of a ‘‘sub- .

| oe - stantial sum” (R; 173)/ On March/43, 1940, the

1 petitioners filed a notice of appeal Poni the judg-

% Ree : re,

: rH A eae

| 11

-~ ment of contempt (R. 165) and statement of i

to be relied upon (R. 159-164). When the case, was

docketed in the Circuit Court of Appeals, the

* Uni tes was made a-party. Appearances.

were entered. on its behalf by the United States

| Attorney and an Assistant‘ United States Attorney,

but they took no further part in: the proceedings

(RB. 167 ¥

- . The Circuit Court of Appeals held that the find-

ings were “amply supported. by the evidence” —

(R.° 168); that the ‘conduct of the petitioners

“interfered. with the court in the performance of

its functions” and constituted misbehavior-‘‘so

near thereto as: to obstruct #fe inistration of

justice,’”’ under Section 268 of/the J udicial Code

(U. S. ©., Title 28, Sec. ; that it was not

essential that the motion for a rule to show cause

be verified and, if it was essential, the verification, |

filed before the petitioners responded to the rule,

sufficed to-remedy thé defect; and, finally, that

the settlement of Elmore’s action did not affect’

the preceedings for contempt (R. 170-173). The

judgment was unanimously affirmed en August

30, 1940: (R. 173-174). |

\, SUMMARY OF ARGUMENT

BERS

it the contempt proceeding was not a civil ac-

tion at law to which the Rules of Cfvil Procedure ,

apply, there are fatal objections both to the juris-

fdiction of this Court and to that of the Circuit

; 12 ‘

Court of ne ~The appeal to the Circuit

Court. of Appeals ‘was neither petitioned for nor

allowed; it was taken by notice of appeal. Hence,

if the practice is governed by Section 8 (c) of the

Act of February 13, 1925 (U_S. C., Title 28, Sec.

.230) the appeal. was improperly perfected and the _

Cireuit Court of Appeals was without jurisdic-

_ tion (McCrone v. United States, 307 U. S. 61). -

If the Criminal Appeals Rules promulgated May

7, 1984, are applicable, the notice of appeal was

effective. But in that event both the appeal to

the Circuit Court of Appeals and the petition for

a writ of certiorari were filed too late. ©

Thé Government concedes that the Rules of Civil

Procedure apply if the contempt was civil and ar-

gues that if the contempt was criminal, the Criminal

Rules apply. This result accords with the tradi-

tional view of contempts as civil or criminal pro-

ceedings for most of the purposes which make the

distinction important. It also accords with the

intention of Congress ¢n authorizing the promul- |

gation of the Civil Rules, the Criminal Appeals

Rules and, recently, rules: governingproceedings

in criminal cases prior to and including verdict or

finding. If criminal contempts are not included

in the Criminal Appeals rules, they are beyond the

' yule-making power under the recent statute. In

consequence, an unfortunate and unanticipated

hiatus would exist in -the power of the Supreme

Court to regulate procedure in the District C

« , 7

wy,

_ 13°

The language of the enabling Act of March 8, 1934 .

<(C. 49, 48 Sat. 399) does not require this. result. | a

| : I be Fiueps ee,

The contempt adjudicated and char |

mistakably criminal andthe p1

propriate for the purpose. For

the nature of the judgmen

nal or civil character of the contenipt. The judg-'

ment in the present case was clearly criminal; it

imposed, unconditional fines payable to the United.

States. Apart from.the nature of the sentence, the

judgment specifically found the petitioners ‘guilty

of misbehavior so near the presence of the court

as to obstruct the administration of justice. This

was unequivoéal evidence that the purpose of the

‘fines and of the adjudication of contempt was to

vindicate the authority of the court, not to perfect ~

the remedies of a ‘private suitor. ,

‘If the proceedings anterior to the judgment are

also examined, they sapport the same conclusion.

The prayer of the motion for a rule to show cause

was not for remedial punishment in aid of the

. main suit. It speaks the language of public jus-

‘tice not of private litigation.” The acts charged

were unmistakably criminal contempt, if contempt

at all. They did not violate a court order; they

obstructed the work of the court and attempted to.

deceive-the judge. Moreover, the respondents to

the rule to show cause were not parties to a pend-

299054—41——_8

is decisive of the crimi- —

° . e | -14

ing action ;, they were strangers. And the movant

for the rule was not the plaintiff in the action, but

his attorney. While the proceedings were entitled

- in the original action and the United States was

not a party until the appeal, neither circumstance

is decisive of the nature of the contempt. e

defendants could not have been uncertain tha

punishment rather than relief was the 2 Bk in

vale a ee | :

_ ___ Sinee the contempt was criminal the jurisdic- re

tional objection must prevail. In any event, the

proceedings were adequate to support the impo-

sition of a criminal penalty. es f

Tit

, The findings .of fact support the conclusion that

the petitioners were guilty of misbehavior so near

the presence of the court as to obstruct the ad-

_» ministration of justice, ‘within ‘the meaning of

~ Section 268 of the Judicial Code.

The petitiqners’ conduct ‘was contumgcioas. It

was,a deliberate attempt to\thwart the prosecution —

of an action by undue influence exercised on the _

litigant and misrepresentation made to the court. —

~ There is ample authority that such an attempt is

a contempt ‘when the means consists of force or

‘threats directed against a. suitor. The type of

influence exerted. in the present ‘ease is indistin-

_guishable. Moreover, the conduct of the petition-

‘ers amounted to a misrepresentation. It. is recog-

1“

. nized.that falsehood may have obstructive qualities

which warrant a ‘finding of contempt.

-—fhe closer question is whether the misbehavior

was in the presence of the court or “‘so near thereto

6 obstruct the administration of justice.”?” We

contend that it was. The early view that the power

‘of § ry punishment.in cases of misbehavior

nfined by.the statute to assuring order and de-

-eorum in court has been abandoned. It is also clear

that the language is not to be ‘‘spatially construed. ee

It is unnecessary to rely upon the majority opin-

ion in Toledo Newspaper Co. v. United States, 247

U. S. 402; the present case falls fairly within the

dissenting opinion of Mr. Justice Holmes. A court

without plaintiffs cannot do business as a court.

While the petitioners’ effort to eliminate Elmore as —

a plaintiff ultimately failed, .there was an actual”

obstruction of the administration of justice. More-

over, the letter which the petitioners had Elmore

~ write to the.judge was itself contumacious. They

- were therefore guilty of misbehavior in the actual

presence of the court.

; There i is no merit in the contention that the Dis-

trict Court was without jurisdiction because the

verification was filed a week after the motion for

an order to show cause. The petitioners were: not

attached on the basis of the motion and raised no

objection on this score until after they. had an- ~

swered and the evidence had been taken. Accord-

ingly, if there was a technical defect, it was waived.

Moreover, the principal allegations of the motion

‘had been sworn to in open court before the motion —

. was made. Under these circurgstances, the court

_ might have issued the rule sua sponte, The re-

spondents - to he rule were entitled to be advised

> of the nature e charge against them and to be

‘ = a fair opportunity to defend. They do not

: tend that these rights were denied.

Beas: i: ss c

Petitioners argue that the settlement of Elmore’s

action for wrongful death, pending this appeal,

requires the judgment of contempt to be set aside.

The contention rests upon the premise that the con-

tempt was civil and the premise is unsound.

ARGUMENT é

I Pe ee

UNLESS THE CONTEMPT PROCEEDING WAS A CIVIL

,ACTICN, THE WRIT OF CERTIORARI SHOULD BE DIS- |

" MISSED OR THE JUDGMENT SHOULD BE’ REVERSED

‘If the con

tion at law to wHich the Rales of Civil Procedure

apply (see Act of Juné 19,1934, c. 651, See. 1, 48

Stat. 1064; Rules of Civil Procedure, Rule 1) there

are fatal objections both to the jurisdiction of this

Court and to that of the Circuit Court of Appeals.

. 4‘

1. The appeal to the Circuit Court of Appeals

was gees petitioned for. nor (allo ed; it was

taken by notice of- appeal. The 6tice would be

effective under the Rules of Civil Rrocedure (Rule

73) or under the Criminal Appeals

gated May 7, 1934 (Rule III). . Bu¥if neither set

of rules'is applicable, the notice was insufficient. —

For in that event, the practice is governed by

Section 8 (c) of the Act of February 13, 1925,

(U. 8. C., Title 28, Sec. 230) which requires an

application to be made. A notice o ppeal is in-

effective to meet this requirement dnd the require-

ment is apparently jurisdictional (McCrone v.

United States, 307 U. S. 61; Alaska Packers Assn.

v. Pillsbury, 301 U. 8. 174: ‘Osborn v. United

States, 50 F. (2d) 712 (C. C. A. 4th); Share v.

. United States, 50 F. (2d) 669 (C. ©. A. 8th) ; .

Vaughan v. American Insurance “Co., 15 F. (2d)

526 (C. C. A. 5th). The decision in Reconstruc-

tion Finance Corporation v. Prudence Securities.

Advisory Group, No. 69, present Term, decided -

January 6, 1941, was not, presumably; intended to

affect this rule in cases governed vd Section 8 (¢)

. of the Act of 1925. -

‘ , If the Criminal Appeals Rules are sea hy

the notice was effective under Rule ITT but both the

appeal to the Circuit Court, of Appeals and the

petition for a writ of carticaari were filed-too late:

Rule III requires that an appeal be taken within .

five days after entry of judgment of convistion

or of an order denying, a motion for a few trial. .

Rule XI requires that petitions for writ of cer-

tiorari to review a judgment of the appellate court.

shall be made within thirty days.after the entry of |

judgment of that court. In the present case, the

notice of appeal was filed more than a month after

* the judgment and sentence of the District Court

and ,the petition for a writ of certiorari was filed.

fifty-eight days, excluding Sundays and holidays,

after the judgment of the Cireuit Court of Ap-

peals. Timeliness of appeal and petitiow are jur-

isdictional requirements (Toledo Scale Co. v.Com- -

‘puting Scale Co., 261 U. 8. 399, 417-418 ; Robertson

and Kirkham, Jurisdiction af the Supreme Court

of the United States, Secs. 381, 386, and p. 777, note.

40; Wilson v. Byron Jackson Co., 93 F. (2d) 577 ©

. 9th); United States v. Tousey, 101 F.

(C. C.“A. 7th). Bie.

3. ‘Wigile contempt proceedings are inescapably _

hybrid (see Myers v. United States, 264 U. S. 95, .

- 103; Bessette v. W. B. Conkey Co., 194 U. 8. 324; base

& 326), we think the new procedural rules are appli- “

cable and that‘the distinction between civil and —

_ eriminal éontempt determines which of the rules

apply. A | i bs

& McCrone v. United States, 307 U.S. 61, 65, sug-

. ~ gests though it does not hold that the Rules of Civil

' Procedure are applicable to civil contempt. ‘The

- pemedial function of. such proceedings ‘and the

' °° tradition to regard them as an aspect of the-etyi}

~ ease in which the contempt occurs (Fox v. Capital

Co., 299 U. 8. 105, 107-108; Leman v. Krentler-~ —

—

:. yF iy

Arnold Co., 284 U. 8. 448, 452-454), hardly permit

any other result. | |

‘A comparable tradition views criminal con-

tempts as criminal cases for most * though not

all,? of the purposes for-which the classification is —

important. In accordance with this tradition and

‘the punitive the ON of criminal contempt, we

‘should expect the inal Rules to apply. The

decision in Wilson v: Byron, Jackson Co., 93 F.

(2d) 577 (CO. C. A. 9th) holds that they do. An ;

argument to the contrary may, however, be

founded on the language of the enabling Act of

March 8, 1934, c. 49,48 Stat. 399, and of the Order

promulgating the Rules. The Act refers to “‘any

/1 Cf, United States v. Goldman, 277 U. S. 229, 235 (direct

appeal by the Government under the Criminal Appeals

Act); Bessette v. W. B. Conkey Co., 194-U. S. 324, 336

(included in statute conferring appellate. jurisdiction. in

“criminal cases”); Ea parte Kearny, 7-Wheat. 38; Toledo

Newspaper Co. v. United States, 247 U. 8. 402, 410 (criminal . _

convictions not reviewable by Supreme—Court on writ of

error); Ex parte Grossman, 267 U. 8. 87 (within the power

of the President to pardon “offences against the United

” States”) ; Gompers v. United States, 233 U. S. 604 (included

'* jn statute of limitations applicable to “any offense not

capital”) ; see also Gompers v., Bucks Stove & Range Co.,

991 U. S. 418, 444, 446, 448 (self-incrimination, right to be

informed and presumption of innocence), preg ld

2Cf. Gompers v. United States, 233 U. S. 604, 610; Za _

parte’ Grossman, 267 U. S, 8% 116 (constitutional right ‘to

jury trial) ; Ayers v. United" States, 264 U. S. 95 (venue).

See also Bowles v. United States, 50 F. (2d) 848 (C. C. A. ©

4th), certiorari denied, 284 U, S. 648 (affidavit of prejudice

¢ under U. S. C., Title 28, Sec. 25). . :

ba]

—

s poe

| 20

or all proceedings after verdict, or finding of guilt

by the court if a jury has been waived, or plea of

guilty, in criminal cases.” The Order speaks of

‘all proceedings after plea of _guilty, verdict of

guilt by a jury or finding of guilt by the trial court

where a jury is waived.”” See 292 U. S. 660, 661.

Both are applicable in terms to cases in, which the

contemnor pleads guilty or in which there is a right

to a jury trial under Sections 21 and 22 of the Clay-

ton Act, ¢. 323, 38 Stat.730,738-739-(U. 8. C., Title

28, Secs. 386-387). ‘But neither the Act nor the

er specifically refers to proceedings after find-

ing of guilt hy a trial court where there is no right

to a; jury and a jury has, therefore, not been

waived—a typical situafion in cases of criminal

contempt. We tontend that the Rules are applica--

ble, nevertheless ; that, under the language quoted, |

they apply ‘tin criminal cases’; and that the re-

maining words are ‘simply descriptive of the ord-

inary situations in which there has been a finding

of guilt. In our view, the questionable language -

serves to designate the finding as the stage of the

proceedings ‘‘in criminal cases” at which the rule-

making power was to attach and the rules to begin

to operate, not the ‘kinds of cases in which the rules

were to apply. ae

This. contention is mesial by the history of

the enabling Act of 1934. The dominant purpose .

of the statute like that of the earlier Act of Feb-

ruary 24, 1933 (¢>119, 47 Stat. 904) was to‘expedite—

—~

21°

the disposition of criminal appeals’ The precise

language of the amended statute was the product

of of a doubt that the earlier Act*empowering the

“court to prescribe rules “after verdict in criminal -

éases”? would apply to cases in which the finding —

of guilt was by the court. The problem was noted

by the Chief Justice in a letter to the Attorney,

General, dated January 11, 1934, with reference

to the draft of proposed rules submitted by the

Department of J watiogn The Chief Justice said:

. > draft, rules are pro-

posed with to proceedings after ‘‘a

verdict of guilty or finding of guilt by the

trial court.’’ The statement as ‘‘to finding

) of guilt”’ presumably has references to cases.

: hich trial by jury has-been waived. It

is not clear that a finding by the court in

such a case would be deemed to be a

‘‘verdict’’ within thé

et authority

that any doubt

-should be removed py an explicit tt

ment. It is manifestly not desirable that

there should be différent times and man-

_ ner of procedure in. cases of appeal where

’ there is a verdict of a jury as distinguished

from those in which there is a finding of —

guilt by the court on the waiver of a jury.

! 7 - * " eee

BS ie

"See H. Rept. 2047, 72 Cong. Jd Sess. 8. 257, 73d.

Cong. 24 Seen. H. Rept. 858; 73a Cong, Sees. ’

- 299058—41—4

_. understanding ef ‘‘finding of guilt’’ to refer to ‘the

the articulate purpose of the amendment Was to

‘Tight to jury trial which might be wait

_ practice, and dateages with respect a4

After consultation with the other mem-

bers of the Supreme Court, and in order’

to remove all questions as to the authorized

scope of the rules to be promulgated, I sug-

gest that it would be well to propose an

amendment to the statute so as expressly,

to cover cases in which there has been a

_ finding of guilt by the trial court and cases

- of pleas of guilty" * * la

Be seems clear that the amendatory Act of 1934

* pumpiicted to exsbody ‘this suggestion. And while

the precise language’ may have its roots in the

ustial case in which trial by jury has been waived,

br the statute to avoid the limiting connota- |

tions the word ‘‘yerdict.’”” It was deemed tobe

undesirable to ha | different appellate procedures :

for ¢ vietio jury verdict and conviction by p

xt on waiver of jury (See S. Rept. 257, 73d :

Oong., 2d Seds. ; ; H. Rept. eye Cine, 2d Séss.) ;

there is even less reason to differentiate between

cases where\the court’s . finding ‘of guilt is made

after waiver of jury and. cases where there was no 7

Tf the enalihing d the Order en line ii

cable to —— “ mpts tried, without a jury, -

thére is an unfortunate aid, ‘so far as we know, yi

unanticipated hiatus in thé power of. the Supreme

Court to regulate procedure in the Distfict Courts.

The Court is now authorized to preseribe “roles of.

ee a

| | 2

any or all proceedings prior to and including ver-

dict, or finding of guilty or not guilty by the court

if a jury has been waived, or plea of guilty, in

criminal cases” (Act of June 29, 1940, c. 445, 54 .

Stat. 688 (28 U. S/O. A. Sec. '723b)). The lan- -

guage thus parallels and complements that of the -

Act authorizing the Criminal Appeals Rules. The

framers of the Act of 1940 certainly believed that

it filled the last gap in the rule-making power of

this Court ; * ;* such was the understanding of the

Congress. * But if the Act of 1934 and the Criminal

‘Appeals Rules are inapplicable to criminal cases

in which there is a finding of guilt by the court but

no waiver of jury, the Act of 1940 must similarly

be inapplicable to'such proceedings before finding.

The language of the feaeus certainly Goes not

require this result.

Gompers v. United States, 233 U. S. 604, 611;

affords a persuasive analogy. The statute of lim-

itations for criminal offenses outlawed prosecu-

tion, trial or punishment ‘‘unless the indictment.

; is found, or the information is instituted” within

three years after r fhe offense was committed. This

4 See the letter of Attorne ey Genegal Murphy to Speaker

Bankhead, ‘Quoted in-H. Rept, 2492, 76th Cong., 3d Sess.,

p. 3.

®Of. S. Répt. 1934, 76tkr Cong., 3d Sess., p. 1: “This Bill

gives t»the Supreme Court the rnle-making power in crimi-

nal, cases.it-has now over proceedings of a civil character;

extending its power to make rules in criminal cases both

- before verdict or guilty finding or plea, as well as after.”

See also H. Rept. 2492, 76th Cong., 3d Sess., p. 2.

fae r

- ce:

Court held the statute applicable to proceed- .

ings for criminal contempt not prosecuted by in- — —}

dictment or information. The quoted words were

regarded as descriptive of the usual modes of in-

stituting prosecution which occurred to the drafts-

man, not as determinative of the prosecutions

barred. ~

Bei ats 3: 4

THE CONTEMPT ADJUDICATED AND CHARGED WAS UN-

‘“MISTAKABLY CRIMINAL AND THE PROCEEDING. WAS,

APPROPRIATE FOR PURPOSE . ae a ‘

Judgment a

sie may be true of their anterior ‘stages,

proceedings which culminate in a judgment of

contempt are not iguous for purposes of ap- |

peal. If the Gaseatr Pisess unconditional fine °

or imprisonment,.it is of criminal contempt. If ‘Sy

it imposes a compensatory fine payable to the in-

jured party or a fine or imprisonment conditional,

upon disobedience to an order of the court made

for the benefit of a party, if the contemnors ‘carry

the keep of their prison in their own pockets” (In

. Re Nevitt, 117 Fed. 444, 461 (C. C. A: 8th)), it is

for civil contempt. And where the judgment em-

bodies both sanctions, its character for this pur-_

pose is determined by its criminal aspect (New ~~

Orleans v. Steamship Co., 20 Wall. 387; Matter of -

Christensen Engineering Co., 194 U. S. 458; Re

Merchamis’ Stock Co., Petitioner, 223 U. 8S. 639;

orn v., Wilson, 259 U. 8.107, 110;

. re

, a

_McCronex. United States, 307-U.S.61; Ws

Byron Jackson Co., 93 F. (2d) 577(C. ©.

See also O’Shea v. O’Shea and Parnell [1890] 15

L. R. P. D. 59, 62-63). These rules govern the

procedure to be followed in invoking appellate re-

view; and they have the simplicity ¢tesirable in

rujJes serving this procedural end. If review is

properly invoked, the appropriateness of the pro-

ceedings to support the judgment is, of course, an

open question (See Gompers V. Bucks Stove &

Range’ Co., 221 U.S. 418, 449; Re Merchants’ Stock

Co., Petitioner, supra).

Measured by this test, it is clear that the jadg-

ment in the present. case was criminal, not civil.

_ It awards no relief to a private litigant. Instead,

it imposes unconditional fines payable to the United

States. While Nye was ordered to pay the costs

of the contempt proceeding, including $500 to .

Guthrie;who brought the contempt to the atten-

tion of the court and conducted the prosecution,

an order to pay the expenses of prosecution, in-

cluding an attorney’s fee, is a common incident of

judgments imposing fines for criminal contempt.

*. Re Merchants’ Stock Co., Petitioner, supra; Union

, LA ~

‘—*Compare the English terminology which usually distin’

_ guishes, between criminal. contempt and contempt in ved

ure. Sés Fox, The Practice in Coitempt of Court Cases,

L: Q. R. 185, 188; 7 Halsbury’s The Complete Statutes of

land, Tit. Contenipt of Court. Annual Practice, 1939, .

_ p.) 809, distinguishes between “special” and “ordinary”

Hs,

rat -

Tool Co. v. Wilson, supra; ae v. United States,

233 Fed. 201 (C. C. A4th) ; Wilson'v. Byron Jack-

son Co., supra. In Gaanire v. Bucks Stove &

= _- Range Co., 221 U. S. 418, 447 there4€vas a sentence

Pile of imprisonment. which, under the statute, pre-

ug cluded. a fine. However, Rev. Stat. Sec. 974°

Neer QC., Title 28, Sec. 822) authorizes assess-—-/.

ment of costs against convicted defendants in non-

dapital cases (See Oates v. United States, 233 Fed.

(_ 201,207 (0. C. A. 4th), certiorari denied, 242 U

633). Even were.the award of costs to be reviewed

as compensatory relief, ‘‘the unitive feature of the |

order is dominant and fixes its character for pur-

poses of review”’ (He igen Stock Co., Peti- |

tioner, 223 U. S. 639 at p. 642

-__-. Apart from the nature of he sentence, the judg-

x ment specifically found the petitioners guilty of

. { “t .-. Inisbehavior so near the presence of the court as to .

: obstruct the administration of justice. This was.

unequivocal evidence that the purpose of the fines

and of the adjudication of contempt Was to vindi-

oC OG 5 cate the a Babes of the court not to perfect the’

ae yi : remedies. of a suitor (ef. Fox v. Capital Co., 299

fa 3 U. 8. 105, 108). In none of the. cases in which the

character of a contempt has bheen-in issue, was the

judgment based upon this ground (cf. In. Re

Siath & Wisconsin Tower Inc., 108 F. (2d) 538,

540 (C. C. A. 7th) rather than the violation of an

r | order of the court or interference with its execu-

tion (cf. Lamb v. Cramer, 285 U: 8. 217)).

‘We submit, therefore, that the nature of the

us °F .

judgment alone ahi the contempt as criminal

' for purposes of appellate review. In that ey

as we have previously urged, this Court is without

jurisdiction. | :

2. The Proceedings : : Ss a

(ay The Prayer. ane

The sarhe conclusion is required, if we mee

hind the judgment to thé anterior proceedings.

The prayer ofthe motion. for a rule to show cause

_ has been said to be ‘‘determinative,’’ at least when

the petition is dismissed (Lainb v. Cramer, 285 —

U.S. 21%, 220) and is highly significant in any 3

- event*(see Gompers v. Bucks Stove & Range Co.,

221 U. §.-: -418, 448-449). The* prayer here

was not for remedial punishment’ in aid of: the _

main suit.. It. was’ (1) for an order ‘to show

cause why Nye should not be attached and held as_ >

for contempt of court; (2) for a direction to the .

United States Attorney. to investigate whether ,

Nye, Timberlake and Mayers conspired to defeat 3

the administration of justice and ‘to practice a

fraud on the court, and whether they were guilty

of subofhation of perjury; (3) fora a grand jury in- |

“quiry; dnd (4) for ‘such other and further, pro- +

cedure as to this Court may seem proper” (R.:12). --

Nothing was asked for Guthrie, who made the mo- .

tioh ; nothing for Elmore, the plaintiff 1 in the orig-

inal action. There is not even'a request for addi-

" tional “‘relief’”’ of any kind (cf. Gompers v. Bucks

Stove & RangeXo., 221 U.S. 418, 448-449). What

is sought is an adjudication of contempt and, in-

CD te of | ae is

ee ee ane 3

" addition, an investigetion, by\tlié ordinary methods —

"of the-criminal law, of the ¢ontumacious -acts al-

~~ leged.~'This is the language pial paiva Mion

: Aion but of public justice. It is hard to believe that _

tie 4 _ had the “Petitioners: been acquitted, it would have’

v. Kieffer, 29, F. (2d) 59 (0. C. A. 4th) ; United

States v. ‘Bittner, 11, F: sid 93 yO. C. A. 7th) ;

- Lamb v. “Cramer, supra). - ae bal eee

(b) The Acts Charged. ae

oe ‘What has been said “ to the Ps naw Tene 3

Ss pp. 24-26) is true of the acts charged; if they con-..

, stituted contempt at all, the contempt was unmig- =

- ‘takably- criminal. The aralogous cases of obstruc-

tion of justice by interfering with witnesses, ju-

' rors and litigants, as weH as with the court itself

~ (See Point III, infra, pp. 33-35) have all been

viewed as: criminal not ciyil contempt. While

neither the motion nor the order to show cause

used the word “criminal” or referred to misbe-

havior so ne&r the presence of the*court as to ob- .

ly. * struct the administration of . justice, the court

E:. ‘stated at an early stage of the proceedings that this

’ was the issue to be tried (R. 16). Subpoenas ad

' testificadwm,.were issued to W. H. Elmore and

rs residing outside the Middle District ro

North Carolina and more than a husgired miles _

from, the place where the court was held (R. 165).

_ This could only:have been authorized i in a criminal

ease (U. S. C. Title 28,-Sec. 654; see Vincennes

, Steel Corp. v. Miller, 94 F. ys 347 (C. C. A.

5th)). , ,

Je Prank eg ca ae

ae Deere eae ”. 29. 2-5:

_ ©) The P Parties and Te Title.

Nyé and Mayers were not parties to eer 's

action. They were not in a position, eta”

to that of a party (ef. amb v. Cramer, 285 U. 8.

This soi has been held to stamp ‘an, adjudication

of contempt as criminal ( ssette v. W. B. Conkey

, °Co.,#194 UV. S, 324, 329: 8e9 also Doyle v.

a London Guarantee Co., 204 U. §. 599, 605 ; Wilson

v. Byron Jackson Co., 93 F. (2d) 577, ois (C. C. A.

9th) ; Fox, Contempt of Court, p. 44), Moreover,

>. movant. in the contempt proceeding was not ,

—-. Elmore but Guthrie, an attgrney ‘and officer of

the court. In the preliminary investigation which

« led to the issuance of the rule, Guthrie subpoenaed

Elmore and examined him as an hostile witness

(R. 54-55). .

It 18 true that the svisediiated in the District

Court were entitled in Elmore’s action and that the

‘United States was not a party until the appeal ; and

- that both citcumstances have been regarded as im-

portant indicia of nature of a contempt pro-

éceeding (Gompers v. Bucks Stove &: Range Co.,

921 U.S. 418, 445-446). The Second Circuit has,

indeed, adopted the rule that a contempt proceed- .

, ing lookix#®to the imposition of criminal penalties

must be prosecuted by the court sua sponte, by the

United States Attorney, or by an attorney for the

private party specially ordered to prosecute erim-.

inally on behalf of the court (See McCann v.

New York Stock Exchange, 80 F. Ga) 211, cer-

a ee

« a . .

$ ‘ ‘

30 : } .

~ tiorari. denied, 299 U..&% 603), , “ thougti4 ‘ne order

"need not be entered at the eutset (National Pop- :

sicle- Carp. v. Kroll, 104 F. (24) 259).

| We re ognize the value’ of the practice thus de-

vised. bu deny its necessity if cases such as the-

id ‘one at-bar. For-unlike the es in the Second

- Circuit, this prosecution was not for. iolating. an

order of the Court—the situation in which’ am-

eally- present (see -Gompers . Bucks Stove &

ange Co., 221 U. S. 4

~ biguity : s to the fast the\proveeding is fypi-

F. (24) 671, 672 (0. C.

beliavior so near the presen age of the court as to

obstruct the Sidtmninistration of justice. The basis

_ for the rule of the Second Circuit, the inherent

- Bessette x. W. B.C

ambiguity of the proceeding McCann v. New

York Stock Exchange, supra, a + 214) is, thepefore,

missing in the present-case. The petitioners ought

not to have been uncertain ‘whether relief or pun-

~ishment: ‘was the lee in viéw’’ (Gompers v

‘Bucks Stove & Range Co., 221 U. 8. 418, 446;

_ Moreover, however the Second Circuit would view

the problem in the present case, it is abundyntly

clear that in other circuits, including the Fourth,

neitherthe fact that the papers dre entitled in the 7

pera action nor the fact that the prosecution |

ducted by an attorney for the private party

; aa ive of the nature of the proceeding or of its

? ey ee xa andi v

y dg , F 4 . es” ° f ~

ps = } : a

ae < ‘ , .

key Co., 194 U.S. 324, 329).

F . %

, o

- ra -

> . — =

icant ens

» .

2 .-

\ . t

;

a a,

. sufficiency to. support criminal penalties’ If may.

‘also be noted t¥at-when Congress in the Clayton

fo ightened \he procedural requirements ina

class of contem cases, which this Court held to , ©

be ‘criminal’? in nature (Michaelson v: United

peli 266, U. oA2, 65), it provided for the. insti-)

- tution. of proceet gs ‘upon th davit of some

credible person’’ as well as u prmation filed -

_ by the Distxict Attorney or the return of a proper:

. officer’ on law rocess P. 8. oye 28, Sec. .

887). ee

Finally, we thik the procedure in the present

cate would satisf even the strict rule of the Sec-

ond Circuit. -contempt prosccution,. at ‘least

“as agains Mayers, appears to have been instituted

“by the J udge sua-sponte, for Guthrie’s motion asks °

for an order to, show cause: directed only to Nye .

" (R: 12) although the order which, was issued re-

cites that the motion was dirécted against both

* (R. 8). There is ‘also some indication in the re-

citals of the order to show cause that the judge

based his order upon the sworn testimony of El- ,

io more, which had been given on the preceding ‘day

in connection, with the motion to dismiss, rather s:

' Kreplik v. Couch Patents @o., 190 Fed. 565 (C. C. A.

1st) ; In re Star Spring Bed Co., 203 Fed. 640 (C. C. A. 3d) ;

In Re Kaplan Bros., 213 Fed. 753 (C. C. A. 3d), certiorari.

denied, 234 U. S. 765; Wingert v. Kieffer, 29 F. (2d) 59

\ . (C.C. A. 4th) ; Monroe BodyCo. v. Herzog, 18 F. (2d) 578 °

~ (C. C. A. 6th) ; Wilson v. Byron Jackson Co., 93 F. (2d)

‘ 577 (C. C. A. 9th). See also Gompers v. Bucks Stéve-&*

: — Co., oer U. S. 418, 446.

: >

. .

bd > o

than upon the averments of. Guthrie’s “petition,

"which indeed did little xaove than transcribe El- _

‘ emore’s testimony (R. 7, 10-11). ‘Approximately — |

- the‘same procedure was followed in Savin, Peti-

tioner, 131 U. S. 267, ‘where. the trial court, upon

oral ‘statements of the United States Attorney that

Savin“hag endeavored to corrupt a witness in a

pending criminal*case, heard the testimony of the |

witness alleged to have been approached and there- |

upon issued an order to show cause. _

We submit, therefore, that not only the judg-.

ment and sentence but also the charge and pro-

cecdings indicate that this was a criminal con-

_tempt; and that, if the issue can be examined, the

. proceedings were not inappropriate as a a basif for

such an adjudication. ‘ ) »

_@ : “d ‘, Til

: HE FINDINGS SUPPORT THE ADJUDICATION OF

rx oa ‘ £: ‘

CONTEMPT :

Petitioners argue that the facts found by the —

Piatries Coyrt do not gonstitute “misbehavior

‘* * *..somear” the présence of the court “as

to shark the administration of justice,”’ within-

the meaning of Section 268 of the Judicial. Code

(U.S. C., Title 28, Sec. 385). We submit that the .

contention is unsound,

In spite of the statement in oledo N. ewspaper

wee Co. v. United States, 247 U. 8; 402, 418, that Sec-

ta tion 268 ‘“‘conferred no gba not already ings

sien. ehh .

) SARS

Fe Ae ee

: and immposed no limitations not ‘alniedy existing,’’

we are content to measure the power of the Dis-

trict Court by the statute alone. That such was .

- the purpose pf the Act of March 2, 1931 (¢..99, 4

Stat. 487) from which Section 268 derives has an

--taade abundantly clear’ (See Frankfurter and

| _ Landis, Power. of Congress over Procedure in

Criminal . Contempts © qn “Inferior” Federgi -

Courts—A Study in. Separation of Powers, 37

tempt of Court, pp: 53-74). . alert pei

as, to the powers of this Court (E¢ pa imnson,

19 } Wall, 505, 510), the powers of the District Courts

are within the control of Congress (cf. Michaelson

v. United States, 266 U. S. 425 see Cuddy, Peti-

__. tioner, 131 U. 8. 280, 285). The question therefore,

is wheth¢r, within the meaning of the statute, the

_ conduct of the petitioners constituted: “‘misbe-

havior” and, if so, whether it was ‘“‘so near’’ the

presence of court ‘fas to obstruct the admin-.

istration of justice.’’

1, The Petitioners’ Conduct Constituted “Misbehavior”

The word “mishehavior”? must presumably be

Harv. I. Rev. 1010, "1024-1038; Fox, Contempt of ie

Court,.p. 202 et seq: Thomas, Problems of Con- -

read as a general designation of contumacious con- .

duct; the limiting words of the statute are those

which require that it be ‘‘in the presence of the -

court or so near thereto as to obstruct the ad-

ministration of justice”. That the petitioners’

behavior, on the facts found, was contumacious we

- tempt to thwart the - . a

undue influence, exercised on the litigant and mis- _

S a. f

_ see nb reason to doubt. It was a deliberate at-

Laiuiiasthens of an action by

representation made to*the court. Authority is —

not wanting, either in England’’ or in this coun- ~

try,’ that such-an attempt is a édhtempt when the

means Consists of force or threats-directed dgainst

a suitor. The type of influence exerted in the

present case is indistinguishable, as the Circuit

. Court of’ Appeals held (R. 173). What is signifi-

cant is that the will of the litigant is controlled by

improper means. The closest case in this Court

tis perhaps United States v. Shipp, 203 U. 8. 563,

214 U. 8.386, in which the lynchirig of a prisoner

sentenced to death, after a ,stay of execution

granted, by the Supreme Court, was held to be a

contempt. The opinion by Mr. Justice Holmes

disregards. the contention that the stay was not

addressed to the mob and rests upon the ground

® See Williams v. Lyons, 8 Mod. 189, 88 Eng. Rep. 38,5

Rexv. Carroll, Wils., K. B. 74, 95 Eng. Rep. 500; King v.

ae Yi

Lee I SOE Ri ae e para

‘ °

‘

Hall, 2 Black. W. 1110, 96 Eng. Rep. 655; Re Mujech, 3 Qw.

& Tr. 599, 164 Eng: Rep. 1407; Smith v. Lakeman, 26 L. J.

Ch. (N-S.) 805; Sharland v. § ,1 T. Li. Ri492; Kitcat

v. Sharp, 48 L. T. 64; Of. Ew parte Halsam, 2 49. For

- cases of mab lostions abusive of a litigant, sg¢ Jn re The

Williams Thomas Shipping Oo. [1980] 2 368; O'Shea

v. O'Shet and Parell [1890] 15 L. R. P. D.\99; Busler v.

Butler [1888} 13 L. R. P. D. 73; ae v. 7 2 Beav.

129. fas ss fot oe ce Ti, 4

_* Turk and Wallen v. State, 123 Ark. 341; Snow v. Pawkes,

188-Ny C. 368; see Whittem v. State, 86 Ind. 196, 215; 98

A, L. R. 187, tit ef5i iy pat

Ties se

Bach

Yes

Sf. 3 ;

- that the purpose of the murder was to frustrate an

appeal.‘ The situation, which is in many respects -

weaker} of attempting to bribe or influence a juror

- or witness has also been held contumacious (Savin,@ ai

Petitioner, 131 U. S. 267; Cuddy, Petitioner, 131 eas

U. 8. 280). To ‘induce a‘ defendant to abscond

and default on his bond is a contempt (Conley v.

United ; States, 59°F. (2d) 929 (C. C. A. 8th)).:

. The Court of Appeals for the Second Circuit has

‘said that “a person might so interpose between

client and attorney as to obstruct justice; for in-

stance, he might kidnap the attorney on‘the eve

' of trial’’, although holding that leaflets which

— lave diverted “only a hypersensitive client

. from the defense of ‘his right” did not con- -

= stitute a contempt (McCann v. New York Stock

Exchange, 80 F. (2d): - 211, 213): In the present

ease the interposition . almost succeeded ;.and the.

obstruction of justice was not threatened but real.

. If the authorities cited. do not determine the in-

stant question, they ‘point unerringly to the result

_ (see? Thomas, - Problems of . Contempt of Court,

pp. 13-17, 53-74). Pi ce

, Moreover, the conduet of the | peilionaies a

amounted to a misrepresentation to the court, de- .

signed to pervert judicial action. Elmore’s letter

must, under the circumstances, be regarded as. the

act of Nye and Mayers, misrepresenting Elmore’s

desire, while using him as an innocent agent. Al- _

though perjury by a witness is not, as such, contu-

macious, the rule rests on the special dangers in-

herent in such summary control over, witnesses,

and the absence of need so long as the process _

of cross-examination is available (Haz parté Hudg-

i: ings, 249: U. S: 378). It is recognized that false-

- hood may have obstructive qualities which warrant

a finding of contempt (United States V. Appel, 211

‘Fed. 495 (S. D. N.Y.) approved in Ex parte Hudg-

ings, supra; see Clark v. Ungted States, 289 U- 8.1;

ef. Lord v. Veazie, 8 How. 250, 255). In United

States v. Pendergast, 35 F, Supp.593 (W. D. Mo.)

a court of three judges, in an opinion by Judge

Otis, did not hesitate to hold contumacious. the ©

bribery of a fiduciary litigant which resulted in

here > ;

2. The Misbehavior Was in the Presence/of the Court or “So Near

‘Thereto As to Obstruct the Admifistration of Justice”

Whether the petitioners’ misbehavior was in the

presence of the Court or ‘“‘so near thereto as to

obstruct the administration of justice” presénts |

a more sérious question, But we think that the -

- answer is the same. We do not doubt that the ~

original Act of March 2, 1831 (Alppendix, infra,

pp. 44-45), enacted following the failure of the im-

_ péachment of Judge Peck, intended the quoted

words as a genuine limitation on the power to pun-

__ ish contempts summarily. The second section of

. the statute, defining obstructive crimes punishable

- misrepresentations to the court culmimgfing in ap -.

- false decree. The same principle is applicable -

iO : !

37. =

upon indictment in the ordinary course, makes this

perfectly clear.* The point ef the distinction thus

drawn betweeri\ contempts punishable summarily

and contumacious offenses which are ordinary

crimes survives ‘in the present statutes. Section 1

of the Act of 1831 has, with a Térmal change (see- |

Savin, Petitioner, 131 U. S: 267, 276) come down as a

Section 268 of the Judicial Code. ‘Section 2 of the | )

Act has, with substantial changes, survived in Sec-

tion 135 of the Criminal Code (U.S. C., Title 18,

> Gee, 241) (Appendix, infra, p. 45), where it is con? ye

: bined with the Act, of June 10, 1872, c. 420 (17

Stat. 378).. See Rev. Stat. Secs. 5399, 5404. Un-

' der.the present statutes, as under the original Act, +

. the problem is to classify contumacious behavior

into that which may be dealt with summarily by

the Court and that which can only be prosecuted

in the ordinary ‘eourse. That the two categories —

are not mutually exclusive was settled in Savin,

_ Petitioner, 131 U. S. 267. ;

An early/dictum said. that in misbehavior cas@s 3

the power of summary punishment can on be

exercised to insure order. and decorum £ ee

_ (Ex parte Robinson, 19 Walk , 511). Se ee

was abandoned ini Savin, Petitioner, 1 1U. S. 267, | ieee

O77, and Cuddy, Petitioner, 131 U. 8. 280, in which -

the concept of judicial presence was expanded be- ,

10 Seg Frankfurter and Landis, Power of ‘Congress Over ,

Procedure in Criminal Contempts in “Inferior” Federal ~

Courts, 37. Harv. L. Rev. 1010, 1036-1038. cf. Thomas, Prob-

lems of Contempt of Court, pp. 91-27, 58-74.

"yond its eaning, although the significance

of the old criterion for cases outside the “‘pres-

In Toledo Newspaper Co. v. United States, 247

U.S. 402, the order and decorum test was surren-

_ dered ‘both by the majority of: the Court and by

the dissent. See also Sinclair v. United States, 279

U. 8.749, 764-765. It was also made clear that

the language is not to be “‘spatially construed”’

(L. Hand, J. in McCann v. New York Stock Ezx-

_ change, 80 F. (2dy 211, 213 (C. . A. (2d). But ef.

” Call v. United States, 8 F. a a (C. C. A. 1st)).

. In holding edntumacious a publication critical of a

judge in a pending case, the Court states the only

test to be ‘‘the character of the act done and its

direct, tendency to prevent and obstruct. the dis-

charge of judicial duty’”’ (247 U. S. at 419). The

dissent of Mr. Justice Holmes, in which Mr. Jus-

tice Brandeis concurred, advanced a narrower rule.

_ The words of the statute, they said,

Gourt from actual interference, and not to

postponed retribution for lack of respect

for its dignity * * *. Without invok-

ing the rule of strict construction think

point only to ea tr protection of the

| that ‘‘so near as to obstruct’’ means so near

as actually to obstruct—and not merely

vate enough to threaten a possible obstruc- _

tion. ‘‘So near as to’’ refers to an accom-

plished fact, and the word ‘‘misbehavior”’

ice Aaa

“ -<~ strengthens the construction I adopt. Mis-

-’ enee”’ was specifically reserved (131 U. S. at 278).

behavior means something more thay ad-

- verse comment or disrespec ’ (387 U. S. “

ges

+: In the present case, we need not rely upon the

broad scope of the majority opinion, which has

been said to obliterate the statutory distinction be-_

tween contempts to/be treated sumn sé

which can only be true cr}

cand Landis, op. ctt., 37 Harv. L. Rev. 1010 at 1037).

The historically vexatious problem of contempt by

publication (see Fox, Contempt of Court, 5-43 ;

* Laski, Constructive Contempt im England, 41

Harv. L. Rev. 1031) is not involved. The peti-

_tioners’ conduct can claim no privilege in tradi-

tional freedom, in ithe dangers of, summary pun

ishment for speech or in the values inherent in

. ¢riticism of the judicial as well ‘asthe. other

. branches of: the government (cf. Mr. Justice

Holmes dissenting in Toledo Newspaper Co. V.

United States, 247 U: 8. 402, 422, and “Craig Ww .

Hecht, 263 U. S. 255, 280). There is no doubt that.

they were guilty of ‘‘misbehavior.’’ "When these

aspects of the dissenting opinion in the Toledo case. .

are put aside, we think the test which it lays down

applies. A courtywithout plaintiffs cannot do busi-

ness as a court (ef. United States v. Shipp, 203

U. 8. 563). And while the petitioners’ effort to

eliminate Elmbre as.a plaintiff ultimately failed, —

there was on actual obstruction of the administra-

tion of justice, necdssitating long delay and large —

expense until Elmore’s action in the District Court

Sore i or a POSRIARIRE ERS E>

pny

EOE BRIN TH IORI RISE i

bate 2 pt Za

| é ue.

ould. go on. Manian the ‘petitioners’ conduct :

— in the letter which they had Elmore

d to the judge and which was received by him.

If, as we contend (supra, pp. ) the letter was ©

2 false representation to the court hich was itself

eontumacious, it is undeniable that the misbehavior

occurred in the actual presence of the court (cf.

Cooke v. United States 267 U. S. 517; United

States v. Pendergast, 35 F. Supp. 598, 596-597

(W. D. Mo.) ; Keeney v. United States, 17 F. (2d)

— 916, 978 (C. C. A. Tth) ; Bowles v. United States,

50 F. (2d) 848 (C. C. A. 4th), certiorari denied,

284 U.S. 648. See —— v. United States,

279 U. S. 749, 764-765)

Petitioners also argue that the evidence was in-

sufficient to support the finding on the crucial

point that they exel undue influence. upon El-

_. more., We do not relate the ‘evidence in detail,

- sinee. the petitioners sta ment makes clear that

, conflict (cf. Bessette.v: onkey, 194 U.S. 324, 338 ;

Oates v. United Statesy233 Fed. 201, 206 (C. C. A.

4th), certiorari. di ied, 242 U. S. 633).

{. TV

THE TRIAL COURT WAS NOT DEPRIVED OF JURISDICTION

BY THE DELAY IN FILING A VERIFICATION OF THE

MOTION FOR ORDER TO SHOW CAUSE

‘There is clearly no merit i in petitioners’ eonten-

_ tion that the District Court was -without jurisdic-

. .

_ minum Castings Co., 214 Fed. 936, 938-941

. 41

tion because the verification was filed a week after

the motion for order to show cause. The peti- —

tioners were not attached on the basis of the mo-,

tion. It may be doubted, therefore, whether an

affidavit was necessary at all (cf. Creekmore Vv.

United States, 237 Fed. 743 (CO. C. A. 8th), certio-

rari denied, 242 U. S. 646). In any event, the

petitioners appeared and raised no objection on

this score until November 17, 1939, more than ‘two

weeks after the case had been tried and the evi-

- dence heard (R. 15-16). Under these circum-

stances the Circuit Court of Appeals properly

held that*the petitioners ‘“‘waived the defect by

their participation in the proceeding, even if it

be supposed that the filing of an affidavit on Oc-

tober 7 was too late.”” (R. 171.) Sona v. Alu-

(C. C. A. 6th), Aad authorities ae ae In re

Odum, 133 N.C. : People &. Severing-

haus, 313 Ill. 456 (1924); see Aaron v. United

States, 155 Fed. 833, 836 (CC. A..8th, 1907) ;

; Morehouse v. Giant Powder Co., 206 Fed. 24, 27

(C. C. A. 9th, 1913). |

It may be noted in addition that the principal

--allegations on which the rule to show cause was ~

issued had actually been sworn to by Elmore on

September 29, 1939, prior to the issuance of the

rule, in his testimony on the motion to dismiss his

suit against the BC Remedy Company. ‘Elmore’s

teatianany was, embodied HEAT -Y verhatin in

: pe: : : oa . |

yon peace 42 . eS

" 5 Quthrie’s aviation: (R. 10). ‘The motion also re- |

ferred to testimony previously given by Nye to

the effect that he had employed Timberlake, the

attorney who prepared the letter an@ final account

for Elmore. -The order to show cause itself shows .

that it was issued on the basis of sworn testimony

, (R. 8). To a considerable extent, also, the con-

trolling facts were wifhin the personal kn

of the judge, e. g ee ts tenase of Guthrie to

‘ .\" pepresent Elmore receipt of the letter which

the respgndents ceused Elmore to /write ‘to\the

judge and to Guthrie, the delays in the pringipal

suit which resulted rom, these letters. Under

Pas these circumstances, { t might have issued _ ee!

the rule to show ¢atse sua sponte, without any

petition or motion. e respondents fwere en-

titled to be advised of the nature of the charge

against them and to be given a fair opportunity

to defend. Savin, P itioner, 131 U. 8. 267;

Camarota v. United Stgtes, 111 243° NG

(©. ©. A. 8d, 1940), certiorari denied, 85 L:

60; see Aaron v: United ‘States, supra; Morehouse

v. Giant Powder Co., supra. They do not contend \

that these rights were denied.

THE JUDGMENT OF CONTEMPT DID NOT FALL WITH THE

_ SEPTLEMENT OF ELMORE’S ACTION FOR WRONGFUL

DEATH

“peébitioners | argue that the settlement of EI-

miore’ 8 action for ae saad death, pending this

>. - | |

: Pee :

_ appeal, requires the judgment of contempt to be

set aside. Their omens rests upon the premise _

that the contempt was-civil (see Gompers v. Bucks _

Stove & Range Co., 221 U. S. 418, 452) and, as

we have shown, the premise is unsound. =

$: CONCLUSION -

- We respectfully submit that nei

Court of Appeals nor this Court |

to review the judgment of the District Court ; and <

that the writ of certiorari should therefdre be dis-

missed or, in the alternative, the judgment should

be reversed with direcfion to the Circuit Court of

* Appeals to dismiss tHe appeal. In the event that =

there is jurisdiction,/the judgment of the Circuit

Court of Appeals shduld be affirmed. 9 .

‘ y, | ,

Sen

-/ Franots Bvie, —

2 / * Solicitor General.

WENDELL BERGE, :

am wrest Attorney General.

Special Assistants to the Attorney General.

Maro 1941. — L |

; \

ot ns

_APPENDIX ©

~The Act of Mach 8) 1934, ¢. 49, 48 Stat. 399

(U. 8. C., Tile 28, SeéN728a), insofar as material, _

_ provides: -

That the Supreme Court of the United

_ States shall. have the: power to prescribe, _

_.- from time to time, rules of practice and. pro-’

cedure with respect to any or all proceed:

ings

after verdict, or fin of guilt by the court

if a Jury has been waived, or plea of guilty,

United States. * Gis iar

Sec. 2. The right 6f appeal shall con-

tinue in those cases in which appeals are

in criminal cases ih district courts of the

_ pk o

tow authorized by law, but the rules made

as herein authorized ma prescribe. the

times far.and manner of taking ap and

applying for writs of certiorari an prepar-

ing records‘and bills of exceptions and the

conditions on which supersedeas or bail may

be allowed. :

_ Act of February 13, 1925, c. 229; 43 Stat. 936, as

‘se Judicial Code: ’

“fea. & (es No appeal intended to bring

any judgment or decree before a cireuit |

court of appeals for review shall be all

unless application therefor be duly made -

within three months after the entry of such

aan or decree (U. 8, C.,'Title 28, Sec.

Szo. 268, Administration of oaths + con

| tempts.—The said courts shall have: power

to impose and administer all necessary

ee | 7 Rah e

1 “ioe

~ oe | ks 45, 3

oaths, aiid 6) alton: ‘by fine or imprison-

ment, at the discretion of: the urt, con-

| tempts of their authority. ‘Such \power to _

punish contempts shall not be ed to

if oor to any a except. the havior

of any person in their presence, or so near

thereto..as to obstriret the ¢ any of the 3 of

justice, the misbehavior of of the offi-

cers of. said courts in their official official

” transactions, and the disobedience or resist-

‘ance by any such officer, or. - by any pa pore

juror, witness, or other person to any la

writ, process, order, rule, a or com--

mand of the said courts (U. 8.C » Title 28, .

Sec. 385).

et’ oF March 2, 1831, ce. 99, 4 Stat. 4st provides :

. * : That the power of the several courts pf.

‘the United States to issue attachments and

inflict summary punishments for contempts

of court, shall not be conse to Aten to

any cases except the misbe ur of any

person or persons in the presence of the

said courts, or-so néar thereto as ast obstruct

the administration of dustice, e misbe-

havior of any of the officers of the said courts

in their official’ transaction, and the dis-

obedience“or resistance by any officer of the

said courts, party, juror, witness, or any

_other person or persons, to any lawful writ

process, order, rule, decree, or command of

the said courts..:

Seo. 2. And be it further enacted, That

if any person or persons shall, corruptly, or

by threats or force, endeavour to int oe,

intimidate, or impede any jur . , witn

officer,-in any court of/ the United States,

“of ‘his duty, or shall, cor-

ruptly, or bide threats or force, obstruct, or

}

46 ; & | ;

impede, or endeavour to obstruct or impede, ,

the due administration of justice therein, ~ |

every person or persons, so offending, shall

be liable to prosecution therefor, by indict-

ment, and shall, on conviction thereof, be

punished, by fine not exceeding five hundred

dollars, or by imprisonment, not. exceeding

_ three months, or. both, according to the na-

io ture and aggravation of the offence. _

ay -'- Criminal Code, Section 135 he C., Title 18,

Whoever corruptly, or by threats or force,

or. by any threatening letter or egmmunica- -

tion, <a to influence, intimidate,

or im any witness, in any court of the

Unite or before any United States

& commissioner or officer acting as such com-

missioner, or any grand or petit juror, or ~°

officer in or of any court of the United 9°

States, or officer who may be serving at any

' “examination or other proceeding before any

United States commissioner or officer actin

as such commissioner, in the discharge o

' his duty, or who corruptly or by threats or

munication, shall influence, obstruct, or im- (

pede, or endeavor to influence, obstruct,-or ~

ramones the due administration of justice ~

_ therein, shall be fined not more than $1,000, ‘

... or imprisoned not more than one year, or

both eR. S. $§ 5399, 5404; Mar: 4, 1909, c.

$21, § 135, 35 Stat. 1113). 3 :

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SUPREME COURT OF THE UNITED STATES:

y Le , — e

No. 558.—OcTOBER Trem, 1940.

RH. i boll Mayers, | On Writ of Certiorari to

— the United States Circuit

‘The United States of America and Four 8 Pi for the .

W. B. Guthrie. urth Circuit.

[April 14, 1941]: te 4

Mr. Justice Doveias delivered the opinion of the Court. ’

Petitioners were adjudged guilty of*contempt under. § 268 of .

the Judicial Oode, (36 Stat. 1163; 28 U. S. C. § 385) for their efforts

to obtain a dismissal of a suit brought by one Elmore in the federal:

Pistriet Court for the Middle District of North Carolina. Elmore, |

administrator of the estate of his son, brought that action, in. forma

pauperis, against one Council and Bernard, partners, trading as

B. C. Remedy Co., and alleged that his son died as a result. of the use

of a medicine, known as B-C and manufactured and sold by them.

The court appointed William B. Guthrie to represent Elmore. De--

fendants filed an answer April ‘29, 1989. On April 19, 1939,

Elmore notified the District Judge and his lawyer by letters that

he desired to have the case dismissed. The substance of the episode

involving the improper conduct of petitioners was found as follows:

- ‘Elmore is illiterate, and feeble in mind and body. Petitioners,

through the use of liquor and persuasion; induced Elmore to-seek —

a termination of the action. Nye directed his own lawyer to

prepare the letters to the District Judge and to Guthrie. and to

prepare a final administration account é be filed in the local pro-

‘bate court. Nye took Elmore to the probate court, -had“him ‘dis-

charged as administrator, and paid the clerk a fee of $1:. He then

took Elmore to the postoffice, registered the letters and paid ‘the :

(postage. -Elmore, however, was’ not ‘promised or paid

1 Nye’s daughter was married to the son ‘of Council, one of the Stestonts

in the Elmore action. Mayers (Meares) was Nye’s tenant who was acquain

with Elmore,

2" * Nye et al. vs. United States etal. aT

These events took place more than 100 miles from Durham, North

Carolina, where the District Court was located.

\~ On September 30, 1939, Guthrie filed a motion? asking for an

order requiring Nye to show cause ‘‘ why he should not be attached

and held as for contempt of this Court’’.® The court issued a show ~

cause order to Nye and Mayers who filed their answers. There was

‘ a. hearing. Evidence was introduced and argument was heard on

* motions to dismiss. The court found that the writing of the letters

and the filing of the final account were procure@ by Nye ‘‘for the . |

‘express and definite purpose of preventing the prosecution of the —

civil action in the federal court and with intent to obstruct and to id

prevent the trial of the case on its\merits’”’; and that the conduct

of Nye and Mayers ‘‘did obstruct ahd impede the due administra- |

tion of justice in this cause; that the conduct has caused a long |

delay, several hearings and. enormous expense.’ It accordingly oo

“held that their conduct was ‘‘misbehavior so near to the pr

of the court as to obstruct the administration of justice’ and ‘a

judged each guilty of contempt. It’ordered Nye to pay thé ¢

of the contempt proceedings, including $500 to Guthrie, and a

‘ September 30, 1939. hae * y

8 The motion for an order to show cause also prayed:. ‘2. That the Court

_ > ‘the entire record in this cause’ with request to the said ee

. Attorney to investigate the question as to whether or not a conspiracy was

"procedure as to this Court may seem propey.’’ ;

_ 4 0On March 18, 1940, Elmore, with the assent of Gath, mbmittd to @ »

e judgment of voluntary non-suit in the action for death upon pay-

ment of a ‘‘ substantial sum’’, as

ge : ; ba + ‘ “hg

3 a

- Nye et al. vs. United States et ll Rae

’ ment.5 113 F. (2d) 1006. We granted the petition rae certiorari

because the interpretation of the power of the federal courts under

_ §268 of the Judicial Code to punish ey raised matters « .

grave importance.

We-are met at the threshold with a silateas as to the juriddic-

tion of the Cireuit Court of Appeals over the appeal. The gévern-

ment concedes that if this was a case of civil contempt, the notice

of &ppeal was effective under Rule 73 of the Rules of Civil P

ure, It argués, however, that the contempt was criminal—in whi¢h

case the appeal was not timely if the Criminal Appeals Rules gov-

-ern,* and not made in the proper form if .§ 8(c) of the Act of Feb-

18, 1925 (43 Stat. 936, 940, 45 Stat. 54, 28 U. 8. C. §'230) is

applicable.”

‘We do not think this w was a case of civil contempt. We recently

_ stated in McCrone'v. United States, 307 U. S. 61, 1 ‘*While‘par- -

ticular acts do not always readily lend themselves to ification as

civil or criminal contempts, a contempt is considered civil when the

punishment is wholly remedial, serves only the purposes of the com-

lainant, and is not@htended as a deterrent to offenses against the

blic.’’? The facts of this case do not meet that standard. While

the\proceedings in the District Court were entitled in Elmore’s

actio and the United States was not a party until the appeal, those

ces though relevant (Gompers v. Bucks Stove & Range”

_Co., 221 U. 8. 418, 445-446) ae not conclusive as to the nature’ of

the contempt. The fact that Nye was ordered to pay the costs of |

the proceeding, nlding 0 to Guthrie, is also not decisive. .As

Mr. Justice Brandeis sfated in Union Tool Co, v. Wilson, 259 U. S.

_ 107, 110, ‘Where a fine is imposed partly as compensation to the

complainant and partly as punishment, the criminal. feature of the’

§The United States was made a party when the ease was docketed in the.

Circuit Court of Appeals. It entered its appearance but its attorneys ap-

pneeny took no further part in the proceedings in that court.

ulgated May 7, 1934. Rule’ III provides that an appeal shall be

wi five days after entry of judgment of conviction or of an order

denying a mption for new trial. In the present case, the notice of appeal was

filed more than a month after the judgment of the District Court. In case

the Criminal Appeals Rules govern, the government also points out that Rule

“XI requires that petitions for certiorari to review a judgment of the appellate

court shall he made within thirty days after the entry of judgment of that

court. In the present case the petition for a writ of certiorari- was filed about

two mont¥s after the judgment,of the Circuit Court of Appeals.

court sattals for review shall be allowed unless application therefor be duly

made within three months after the entry of such judgment or decree.’

meee” BEERS TEV Gs. Gyula

FR RETR RK Re A wey SEAS Peed Rapes rit

Si aN SE tc BENE Eels WRAL, SS PETS RVR ES VRIES NaS OG le LO

Red RSS) Eee as

ERT, DEAN AF

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_ verdict of guilt by a jury or finding of

where a jury is waived, in criminal cases.’’

‘ease there was no plea of guilty, tHére was/no verdict of guilt by

as SN. Nye et al. vs. United States, et al.

order is dominant and fixes its character for-purposes of review.’’

The order imposes unconditional fines payable to the United States.

It awards no relief to a priy4te suitor. The prayer for relief* and .

the. acts charged® carry the criminal hallmark. Cf.°Gompers v.°

; Bucks Stove & Range Co., supra, p. 449. They clearly do not re-

veal any purpose to punish for contempt ‘‘in aid of the adjudica-

tion sought in the principal suit’’. Lamb v. Cramer, 285 U. 8. 217,

220. Whery there is added the ‘‘significant’’ fact (Bessette v. W, B.

Conkey of, 194 U. S. 324, 329) that Nye and Mayers were

strangers, /not parties, to Elmore’s action, there can be no reasonable

doubt that the punitive character of the order was dominant,

_ . We come then to the question of the jurisdiction of the Circuit

Court of Appeals. We disagree with the government in its conten-

tion that the appeal in this case wag governed by the Criminal Ap-

peals Rules. Those rules were promulgated pursuant to the pro-

_ visions of the Act of .March 8, 1934 (48 Stat. 399; 28 U. S. C.

§ 723a). which provided, inter alia,*that this Court sho have

‘the power to prescribe, from time to, time, rules of practice and

procedure with respect to any or all proceedings after yerdict, or

finding of guilt by the court if a jury een waived, jor plea of —

. guilty, in criminal cases.’’ The rules were adopted ‘‘as the Rules

after plea of guilty,

t by the trial court

92 U.S. 661. In this

of Practice and Procedure in all p

a jury, and there was no finding of guilt’ by the court where a jury

was waived. To be‘sare, the rules and the\Act are applicable ‘‘in .

- eriminal cases’’. But we do not agree with the government that the

qualifying langhage of the rules designates merely the stage of the

proceedings ‘‘in criminal cases’’ when the rules become applicable.

It is our view that the rules describe the kinds of cases to which they ‘*

are to be applied. The Act of March 8, 1984 amended the Act of

~ ‘February 24, 1983 (47 Stat. 904) which gave this Court rule-making

power ‘‘with respect to any or all proceedings after verdict in crim-

inal cases.’’ The legislative history makes it abundantly clear

_ 8 Supra, note3.

9 On October 30, 1989, the District Court denied motions to dismiss the rule

to show cause saying that ‘‘the question to be determined is whether the ~-

. respondents, or either of them, is guilty of misbehavior in the presence of the

ee ee ene te administration of justice in this Court, ,

s act to be determined by the evidence and not on -

motion.’?’ ~ s fs

\ 2

_ ° 2 v

Nye et al. vs. United States et al. 5

What the amendment in 1934, so far as material omer ‘was made

because ‘‘it would not seem to be desirable that theré should be

different times and manner of procedure in cases. of appeal where

there is a verdict of ‘a jury as distinguished from cases in which

there is a finding of’ guilt by the court on the waiver of a

jury.’”’ H. Rep. No. 858, 73d Cong, 2d Sess. p. 1; 8. Rep.

No. 257, 78d Cong., 2d Sess. p. 1. In lighd of this history and

promulgating the rules we conclude: that

the categories of cases em aced in the rules cannot be expanded by

interpretation to %clude thix type of case.

That conclusion means that this appeal was governed by § 8(e) of

the Actgf February 13, 1925. The court: is equally divided in

opinion as to whether the Circuit Court of Appeals, in abgence of

an application for allowance of the appeal, had the power to\decide

the oase on the merits. Hence the action of that court in taking

jurisdiction ‘ove? the appeal is affirmed, .

We come then to the merits,

The question is whether the conduct of petitioners condstiited

‘misbehavior . . . so near’’ the presence of the court ‘‘as to

obstruct the administration of justice’’ within thé meaning of § 268

of the Judicial Code.!° That section derives from the Act of March

2, 1831 (4 Stat. 487). The Act of 1789 (1 Stat. 73, 83) provided

that courts of the Uni d States ‘‘shall have power ..-. . to pun-

ish by fine or imprisonment, at the discretion of said courts, all

contempts of authority in any cause or hearing before the same.’? -

Abuses arose,* culminating in impeachment proceedings against

James H. Peck, a federal district judge, who had imprisoned and

disbarred one Lawless for publishing a criticism of one of his

opinions in a case which was on appeal. Judge Peck was ac-

quitted.12 But the history of that episode makes abundantly clear _

that it served as the occasion for a drastic delimitation by Congress

10 This section provides: ‘‘The said courts shall have to Supats en

administer all necsenary oaths, and to punish, by fino or Uapeleemment, oh

discretion of the court, contempts of their authority: Provided, That ale

ee ekdeier ot it ecee tak et ee

the misbehavior of any person in their presence, or so near thereto as to

struct the administration of justice, the misbehavior of any of the officers

persone? oa meyssnanterengy ances voting vapor apes oo |

any such officer, or by any party, juror, witness, or other person to any lawful :

wvit, process, order, rule, decree, or command of the said dourts,’’

11 See Nelles & King, Contempt by Publication in the United States, 28

Col. L. Rev. 401, 409 et seq :

12 Stansbury, Report of ‘the Trial of James H. Peck (1838).

eas

a -

Be Nye et al. vs. United States et al.

of the broad undefined power of the inferior federal courts under

the Act of 1789. :

. The day after Judge Peck’s acquittal Go took steps to °.-

change the Act of 1789. The House directed its Committee on the

Judiciary ‘‘to inquire into the expediency of defjping by statute

all offences which may be punished as cOntempts"0f the courts of

the United Sthtes, and also to limit the punishment for the same.’’*

Nine days later James Buchanan brought in # bill which became the

Act of March 2, 1831. He had charge of the prosecution of Judge

Peck and during the trial had told the Senate:** ‘‘I will venture

to predict, that whatever may be the, decision of the Senate upo

this impeachment, Judge Peck has been the last man in the Uni

States to exercise this power, and Mr. Lawless has been its last vic}

tim.’’ The Act of March 2, 1831, ‘‘declaratory of the law concerzi- |

ing contempts of court,’’ contained two sections, the first of which —

provided : . —

‘‘That the power of the several courts of the United States to.

Sec. 2 of that Act, from whieh § 135 of the Criminal Code"® (35

Stat. 1113, 18'U. 8. C. § 241) derives, provided: — .

‘“That if any person or persons shall, corruptly, or by threats or

force, endeavour to influence, intimidate, or impede any juror, wit-

-18 7 Cong. Deb., 2ist Cong.» 24 Sess., Feb. 1, 1831, Cols. 560-561. And see

House Journal, 2ist Cong., 24 Sess., p. 245. :

)

cs Nye et al. vs. United States et al. ¥\-

ness, or officer, in any court of the United States, in the discharge ~ \

, of his duty, or shall, corruptly, or by threats or force, obstruct, or

impede, or endeavour to obstruct or impede, the due administration

of justice therein, every person or persons, so offending, shall be

liable to prosecution therefor, by indictment, and shall, on convic-

tion thereof, be punished, by fine not exceeding five h dol-

lars, or by imprisonment, not exceeding three months, o both, ac-

cording to the nature and aggravation of the offence.’’

In 1918 this Court in Toledo Newspaper Co. v. United States,

247 U. S. 402, 418, 419, stated that ‘‘there can be no doubt’’ that

the first section of the Act of “March 2, 1831 ‘‘conferred no power

not already granted and imposed no limitations not already exist- - :

ing’’; and that it was ‘‘intended to prevent the danger, by reniinis-

cence.of what had gone before, of attempts to exercise a power ndt

possessed which . . .. had been sometimes done in the exercise

of legislative p &% The inaccuracy of that historic observation

has been plaixliy demonstrated. Frankfurter & Landis, Power of

Congress Ober Procedure in Criminal Contempts in ‘‘Inferior’”’ -

Federal Courts—A Study in Separation of Powers, 37 Harv. L.

_Rev. 1010. Congress was responding to grievances arising out of

‘the exercise of judicial power as dramatized by the Peck impeach-

m roceedings. Congress was intent on curtailing that power.

The Gestion of the Act of March 2, 1831 when read together,

as they must be, clearly indicate that the category of criminal cases

- which could be tried without a jury was narrowly confined. That ~~

the previously undefined power of the courts was substantially cur-

tailed by that Act was early recognized by lower federal courts.

United States v. Holmes, Fed. Cas. No. 15,383, at p. 363; E — a

Poulson, Fed. Cas. No. 11,350; United States-v. New ‘Bedford

Bridge, Fed. Cas. No. 15,867, at p. 104; United States v. Seeley,

Fed. Cas. No. 16,248a; United States v. Smorsen; 4 Cranch (C. C.)

188; Kent’s Commentories (3rd ed. 1836) pp.-300-301. And ‘when

. the Act came before this Court in Ez parte Robinson, 19 Wall. 505,.

511, Mr. Justice Field, speaking for the Court, acknowledged that ie

it had limited the power of those courts. And see Ez parte Brad- — }

ley, 7 Wall. 364, 374, So far as the degisions of this Court gre-

concerned, that view ‘persisted to the time when Toledo Newspaper

Co. v. United States, supra, was decided. See Ex parte Wall, 107

U. 8. 265 ; Savin, Petitioner, 131 U. 8. 267, 276; Cuddy, Petitioner,

* 131 U. 8. 280, 285; Eilenpecker v. District Court, 134 U. 8. 81, 38.

pap aon

8 .. Nye et als. United States et al.

of the Judicial Co¥e in light‘of the specific facts of this case. ‘ The

question is whether the words ‘‘so near thereto’’ have a geograph-

"deal or a causal connotation. - Read in their context and in the light

of their ordinary ufeaning, we conclude that they are to be con- -

strued as geographical terms. In Ez parte Robinsof, supra, at p.

511, it was said that as a result of those provisions the power to

punish for contempts ‘‘can only be exercised to insure order -

and decorum’’ in court. ‘‘Misbehavior of any person in their

presence’’ plainly falls in that category. Ez parte Terry, 128

U. 8. 289. And in Savin, Petitioner, supra, it was also held ‘to

include attempted bribes, of a witness, one in the jury room and

within a few feet of the court room and one in the hallway im-

mediately adjoining the court room. See Cooke v. United States,

267 U.S. 517.. The phrase ¢‘so near thereto as to obstruct the

administration of justice’’ likewise connotes that the misbehavior

‘must'be in the vicinity of the court. Nelles & King, Contempt by

- Publication in the United States, 28 Col..L, Rev. 525, 530. It is

- not sufficient that the misbehavior charged has some direct re-

lation to the work of the court. ‘‘Near’’ in this context, ,juxta-

____ = posed to ‘‘presence’’, suggests physical proximity not relevancy.

In fact, if the words ‘‘so near th ”? are not read in the geo-

graphical sense, they come close, as the government admits, to

being surplusage. There may, of course, be many typea of “‘mis-

‘ behavior’? which will ‘‘obstruct the administration of justice?’

but which may not be ‘‘in’’ or ‘‘near’’ to the ‘‘presence’’ of the

a Broad categories of such acts, however, were expressly

Fecognized in § 2 of the Act of March 2, 1831 and subsequently in

§ 185 of the Criminal Code. It has been held that an act of mis-

behavior though covered by the latter provisions may also be 8

contempt if committed in the ‘‘presence’”’ of the Court. Savin, .

Petitioner, supra. And see Sinclair v. United States, 279 U. 8.

749, Yet in ‘ag oripeoet of those provisions, meticulous —

_ regard for those séparate ca ries of offenses must be had, 80

thet the instances where th no right to jury trial will be

_ parrowly restricted. If ‘‘so thereto’’ iven a causal mean-.

ing, then § 268 by the process of judicial will have re-

gained much of the gererality which Congress\in 1831 emphati-

of Contempt of

Minafal of that history, we come to the construction of § 268

See se

oe es

. Nye et al. vs. United States et al. A

Court (1934) ¢. VIP. If that phrase be not restricted to acts a

the vicinity of the court but be-:allowed to embrace acts which have

a ‘‘reasonable tendency’’ to ‘‘o ct the administration of jus-

tice’ (Toledo Newspaper Co. v. ed States, supra, p. 421) then

the conditions which Congress sought to alleviate in 1831 have

- largely been restored. Fox, The History of Contempt of Court

~ (1927) e IX. The re t will be that the offenses which Congress

designated as true cri es under §2 of the Act of March 2, 1831 aes os

will be absorbed as contempts wherever they may take place. We

cannot by the process of interpretation obliterate the distinctions

which Congress drew. ; | . ,

We are dealing here only with @ problem of statutory construe-

_. tion, not with a question as to the constitutionally permissible

“scope of the contempt power. But that is no reason why we should:

adhere to the construction adopted by Toledo Newspaper Co. V.

United States, supra, and leave to Congress the task of delimiting -

the statute as thus interpreted. Though the statute in question -

hes been on the books for over a century, it has not received during

its long life the broad interpretation which that decision gave

it; Rather, that broad construction is relatively recent. So

“Xtor as decisions of this Court are conterned, the statute did not -

Teceive any such expanded intérpretation until Toledo Newspaper

Co. v. United States, supra, was decided in 1918. The decisions of

this Court prior to 1918 plainly recognized, as we have noted,

that Congress through the Act of March 2, 1831 had imposed a limi-

_ tation on the power to punish for contempts—a view consistent with

the holdings of the low federal courts d the years imme-

diately following the enactment of the statute. e early view was

best“expressed in Ez parte Poulson, swpra, decided in 1835. In

- that case it was held that the, Act.of March 2, 1881 gave the court -

no power to punish a newspapér publisher for contempt for

publishing an ‘‘offensive’’ article relative to a pending case. I

-was held that the first section of the Act ‘‘alludes to that kind

misbehavior which is calculated to disturb the order of the court,

such as noise, tumultuous or disorderly behavior, either in or 80

near to it as to prevent: its proceeding in the orderly dispatch of its

business.’”? p, 1208. That was a plain recognition that the words

‘*so' near thereto’’ connoted -physical proximity. And prior to |

1918 the decisions of this Court did not depart from that theory,

eas Nye et al. vs, United States et al.

however they may have expanded the earlier notions of Nitin

havior’’.. To be sure, the lower federal courts in the intervening

years had éxpressed a contrariety of views on the meaning of the

statute’® and some were giving it an expanded: scope’? which was

later. approved in Toledo Newspaper Co. v. United States, supra.

But it is significant that not until after the turn of tlis century

_ did the first line of fracture appear suggesting that the statute

authorized summary punishment for publication:4* -Thus the legis-

lative history of this statute and its career demonstrate that this case

presents the question of correcting a plain misreading-of language

‘ and history so as to give full r to the meaning which Congress

- unmistakably intended the statute to have. Its legislative history, ~ ;

its interpretation prior to 1918, the character and nature of the can-

/ tempt proceedings admonish us not to-give renewed vitality to the

doctyjne of Toledo Newspaper Co. v. United States, supra, but to

recognize the substantial legislative limitations on the contempt

power which were occasioned by the Judge Peck episode. And they

necessitate an adherence to the original construction of the statute

ee ne

_ be dealt with as the law deals with the run of illegal acts. Cf. .

Mr, Justice Holmes dissénting in Toledo Newspaper Co. v.. United *

States, supra, pp. 422 et seq. ‘ »

? The conduet of petitioners (if the facts found are taken to be

true) was highly reprehensible. It is of a kind which corrupts

the judicial process and impedes the administration of justice.

But the fact that it is not reachable through the summary pro-

cedure of contempt does not mean that such conduct can proceed

with impunity. Sec. 135 of the Criminal Code, a descendant of § 2,

, of the Act of March 2, 1831, embraces a broad category of offenses.

” And certainly it cannot be denied that:the conduct here in question

16 That ‘‘so near thereto’? is a geographical term see Ex parte Schulenburg, o a:

25 Fed, 21 mee mad Hillmon v. Mutual Life Ins. Co., 79 Fed. 749 (1897) ;

' Morse v. 4). Fed. 337, 847 (1900); Cuyler v.

Atlantis’ & NG. B. Oo, 95. And see Nelles & , op. cit.,

a Pe of *‘ »? and ‘¢ ”

cases so near thereto

In re 71 Cae sae United States, 25 App.

404 ( 177. Fed. 536° (1910); Kirk v,

a alain wnat 228 Fed.

ames: aie a aint me ‘|

XS.

™ puinipinimsinieadellll

" Nye et al. ys. United States et al. ae

comes far closer to the family of offenses thére described than it

does to the moft limited classes of contempts described in § 268 of

-the Judicial Code. The acts complained of took place miles

was in no possible, sense in the ‘‘presence”’ of the court or ‘‘near

_. thereto’’. So far as the crime of contempt is concerned, the fact

that the judge received Bie letter is inconsequential,

"We may concede that there an obstruction in the administra-

tion of justice, as evidenced by the long delay and large expense

which the reprehensible conduct of petitioners entailed. And it

would follow that under the ‘‘reasonable tendenc; ”? rule of To-

ledo Newspaper Co. v. Unitgd States, supra, the courtsbelow did not

err in affirming the judgment of conviction. But. or the reasons

stated that decision must be overruled. The fact that in purpose

and effect there was an obstruction in the administration of justice

did not bring the condemned conduct withi:t the vicinity of the

court in any normal meaning of the term. It was not misbehavior -

in the vicinity of the court disrupting to quiet and order or actually

_ interrupting the court in the eonduct of its business. Cf. Savin,

Petitioner, supra, at p. 278. Hence, it was not embraced within

§ 268 of the Judicial Code. If petitioners can be punished for their .

misconduct, it must be under the Criminal Code where they will .

_ be afforded the normal safeguards surrounding criminal prosecu-

tions., Accordingly, the judgment below. is

"wilt . AN Reversed. ae

A true copy. ve eee

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ag . 4 SRS FINESSE

The United States of America, and

_ SUPREME COURT OF THE UNIT]

se 558, —Ocrosme TERM, 1940.

X °

S ae , —

Ke. Hi, Nye ane tC. Mayers, ) On Writ of Certiorari to

Petitioners, |) the United States Circuit

- r §Court of Appeals for the

Fourth Gircuit.

W. B. Guthrie.

_ [April 14, 1941. ]

Mr. J ustice STONE.

The suck below did not pass on the question, mooted: here,

whether it acquired jurisdiction under the appeal provisions of the

applicable section, 8(c) of the Jurisdictional Act of February 13,

1925. Only four members of this Court are of opinion that it did.

- Assuming for present purposes. that it had jurisdiction to decide

the merits, I think its decision was right. and that the itenest

below should be affirmed. |

We are concerned here only with the meaning and smaliiehled of

an act of Congress which has stood unamended on the statute books

for one hundred and ten years.., It gives statutory recognition to

the power of the federal courts to punish summarily for contempt

and provides that that power ‘‘shall not be construed to extend -

to any cases except the misbehavior of any person or persons in the

presence of the said courts or so near thereto as to obstruct the

administration of justice’’.

The issue is not whet this statute has sniaiiol. a an authority

which federal courts ex | before its enactment, Concededly it .

has. The only question before us is whether it has so limited that-

authority as to preclude summary punishment of the contemptuous. °

action of petitioner which it is not denied, is ‘‘misbehavior’’ al-

though not in the presence of the court, and which it is admitted

_ ing in‘the court, The. question is impo rtant, for if conduct such as_—

this record discloses may not be dealt with summarily the only

eotirse of a federal court for the protection of the integrity of p

ceedings Bebding before it, from acts of corruption and intimida>

® =

<3 ' Nye et al, vs. United States et al.

tion outside. the court room, is to await the indietment of the —.

offenders, with or without adjournment of the pending proceedings “i

as the exigencies of the case may require.

It is not denied that the distance of the present contemptuous ac-

tion from the-court in miles did not lessen its injurious effect, and

in that sense it was ‘‘near’’ ‘enough to obstruct the administration

, of justice. The opinion of the Court supports its: conclusion on the

ground that ‘‘near’’ means only geographical nearness arid so im-

plicitly holds that no contempt is sunimarily punishable unless it is

either in the presence of the court or is some kind of physical in-

terference with or disturbance of its good order, so the near-

. ness te the court of the contemptuous act has an effect in o eting

, justice which it ‘would not have if it took place at a@ more distant

. _. point. From. all this it seems to follow that: the surreptitious

tampering with witnesses, jurors or parties in the presence of the

Ve court, “although unknown to it, would be summarily punishable -

because in its presence, but that if it took place outside the court

room or while thé witness, juror or party was on his way to-attend

court it would. not be punishable because geographical nearness is

~ not an elemtnt in making the contemptuous action an obstruction ~~

to justice. »° ; :

These contentioris assume that ‘‘so near ther ”? can only refer

to geographical position and they ignore the entire history o

judicial interpretation of the statute. ‘‘Near’’ may connote prox- ~

imity in causal relationship as well as proximity in space, and under

| this statute as the opinion seems to recognize even the proximity to

ein

the court, in space, of the contemptuous action, is of significance only

in its causal relationship to the obstructions to justice which result

from disorder or public distufbances. This Court has hitherto, with-

outa dissenting voice, regarded the phrase ‘‘so near thereto’’ as con-

noting and including those contempts which are tWe proximate cause

of actual obstruction to the administration of justice, whétHer be-

cause of their physical nearness to the court gr because of a chain

of causation whose operation in producing the obstruction depends

on other than geographical relationship4 to the court. See Savin, -

Petitioner, 181 U. 8. 267; Cuddy, Petitioner, 181 0, S. 280; Toledo

Newspaper Company Vv. United States, 247 U. 8..402; Sinclair v.

« . Dnited States, 279 U. 8. 749, 764, 765; Craig v. Hecht, 263 U, 8.

255. Cf. McCann v. New York Stock Exchange, 80 F. (2d) 211, ;

218. Contempts which obstruct justice because of thei effect on

| , e ; .

vs }

Pde

oF ae

Nye et al. vs. United States et al. 3

the good order and tranquillity of the court must be i in the presence

of the court or geographically near enough to have that effect. Con-

tempts which are surreptitious obstructions to justice, through

tampering with. witnesses, jurors and the like, must be proximately

related to the condemned effect. We are pointed to no legislative

history which militates against such a construction of the statute.

In the Savin, the Craig, and the Sinclair cases, as as well as in the

Toledo case, the contempts were of this latter kind. The contempt

held summarily punishable by this Court in the Savin case, decided

sixty years ago; was the attempted bribery of a witness at a place

in the court house but outside the courtroom, without any disorder

- or disturbanée of the court. The contemptuous acts in the other

eases took place at points distant from the court in the city where

it sat. In all, the injurious effect on administration of justice

was unrelated to the distance from’the court. In holding that they

were contempts within the summary. jurisdiction of the court this

Court definitely decided that ‘‘so near thereto’’ is not confined to a

spatial application where the evil effect of the alleged contempt

does not depend upon its physical nearness to the court.

The Savin and Sinclair cases were decided by a unanimous court.

The dissenting judges in the Toledo and Craig cases, in which the

acts held to be contemptuous were the publication, at a di

from the court, of comments derogatory to the judge, mage no |

contention that the phrase, imposed a geographical limitation on

. the power of the court. ‘Their position was that the particular

contemptuous acts charged did not in fact have the effect of ob-

structing justice, a contention which cannot be. urged here. —

In the Toledo ease Justice Holmes said, page 423: ‘“‘I think that |

‘so near. as to obstruct’ means so near os actually to obstruct and

not merely near enough to threaten a possible obstruction’’. And

in the Craig case, after commenting on the fact that no cause was

pending before the court, he said, p. 281: “Suppose the petitiofier

falsely and unjustly changed the judge with having excluded him

from knowl@dge of the facts, how can it be pretended’ that the

charge obstructed the administration of justice. ... .” Com-

-plete agreement with the dissents jn these cases neither requires

the Court’s decision here nor lends it any. support.

I do not understand my bretliren to maintein that the secret

bribery or” intimidation-of ‘a witness in the court room may not be

summarily ~— Cf.: ae supra s Sinclair, supra. It « so it

2 Xs eases ; eT Ag.

; P

‘ os

4 _ » Nye et al. vs. United States et al.

. justice which is precisely the same if the bribery or intimidation

took place outside the court house. If it may be so ‘punished I

ean hardly believe that Congress, by use the. phrase ‘‘so near

- thereto’, iritended tolay down a different rule if the contemptuous

acts took place across the corridor, the street, in another block, or a -

mile away. *

“If the point were more doubtful than it seems to me, I should

till think that we should’ leave undisturbed a construction of the

statute so long applied and not hitherto doubted in this Court. We

recently declined to consider the contention that the Sherman Act

- ean never apply to a labor union, because of long standing deci-

_ gions of this Court to the contrary, a construction which Congress -

had not fit to change. Bee Apex Hosiery Co..v. Leader, 310

U. 8. 469, 987,488.

_ In view orle earlier decisions and of the serious consequences to

- the administration of justice if courts are powerless to stop sum-

marily, obstructions like the present, I think the responsibility of

departing from the long accepted construction of this statute should —

be left to the legislative branch of the Government ~ which it right-

| fally belongs. ;

ce)

The Curer Justice and Mr. Justice Roperts concur in this

opinion... °

, nner

}

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