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263 U.S. 255
HECHT, U. S. Marshal.
Argued Oct. 17, 1923.
Decided Nov. 19, 1923.
Messrs. E. L. Mooney and John P. O'Brien, both of New York City, for petitioner.
[263 U.S. 255, 262] Mr. Solicitor General Beck, of Washington, D. C., for respondent.
Mr. Justice McREYNOLDS delivered the opinion of the Court.
The opinions below are reported in United States v. Craig (D. C.) 266 Fed. 230; Ex parte Craig (D. C.) 274 Fed. 177; United States v. Craig (D. C.) 279 Fed. 900; Ex parte Craig %(c. c. a.) 282 f/ed. 138.
In October, 1919, petitioner Craig, Comptroller of New York City, wrote and published a letter to Public Service Commissioner Nixon, wherein he assailed United States District Judge Mayer because of certain action taken in receivership proceedings then pending. The United States district attorney filed an information charging him with criminal contempt under section 268, Judicial Code (Comp. St. 1245). [263 U.S. 255, 269] Having heard the evidence, given the matter prolonged consideration and offered the accused opportunity to retract, on February 24, 1921-some fifteen months after the offense-Judge Mayer, holding the District Court, sentenced petitioner to jail for 60 days and committed him to the custody of the United States marshal. Immediately, without making any effort to appeal, Craig presented his verified petition, addressed 'To the Honrable Martin T. Manton, Circuit Judge of the United States,' asking for a writ of habeas corpus and final discharge. The record of all evidence and proceedings before the District Court was annexed to, or by reference made part of, the petition. The judge promptly signed and issued the following writing, which bore neither seal of court nor clerk's attestation:
The marshal made return, and set up the contempt proceedings in the District Court along with the order of commitment. This was traversed, and Judge Manton heard the cause. He said and ruled: [263 U.S. 255, 270] 'Was there a cause pending within the rule of contempt concerning libelous publications? A cause is pending when it is still open to modifications, appeal or rehearing, and until the final judgment is rendered. Did the letter concern a cause pending? If it did not, it could not obstruct the administration of justice. The application before the court, which is the subject-matter of the letter, was the matter of a coreceiver. As to this the court had definitely decided adverse to the comptroller. The court's action was complete in respect to this matter. ... The District Judge pointed out, as did the information, that the whole railroad situation was before the court, since it was an equity proceeding; but it is not of this that the defendant wrote. This is fully corroborated by the testimony of the defendant. He also testified that he had no intention of obstructing the delivery of justice or misbehaving himself so as to obstruct the administration of justice. He stands convicted upon his letter alone, and such inferences as may be drawn therefrom. His conviction rests upon an issue between the court and the defendant, and it is one of terminology or interpretation. There is no criminal intent discoverable from this record to support the interpretation placed upon it by the court, nor was there pending sub judice a proceeding before the court at the time the letter was written. The conclusion is irresistible that the court exceeded its jurisdiction by an excess of power in adjudging the defendant guilty. The petition for discharge is granted.' 274 Fed. 187.
Circuit Judge Hough allowed an appeal. Being of opinion that Circuit Judges, as such, are without power [263 U.S. 255, 271] to grant writs of habeas corpus, the Circuit Court of Appeals treated the cause as determined by the District Court, to which Judge Manton had been assigned, and held:
It concluded that the District Court, Judge Mayer presiding, had jurisdiction of both offense and person, and reversed the order of discharge.
The court correctly held that United States Circuit Judges, as such, have no power to grant writs of habeas corpus.
Two sections of the Revised Statutes authorize the granting and issuing of such writs.
Comp. St. 1279, 1280
The Judiciary Act of 1789 (1 Stat. 73) provided for the organization of Circuit Courts. Until 1869 they were presided over by District Judges and Justices of the Supreme Court. The Act of April 10, 1869, 16 Stat. 44, created the office [263 U.S. 255, 272] of Circuit Judge:
This provision became part of section 607, Rev. Stats:
The Act of March 3, 1911 (Judicial Code, 289, 291, 297 [Comp. St . 1266, 1268, 1274]), abolished Circuit Courts, conferred their duties, and powers upon the District Courts, and specifically repealed section 607, Rev. Stats. It also repealed 'all acts and parts of acts authorizing the appointment of United States Circuit or District Judges ... enacted prior to February 1, 1911.' Section 118, Judicial Code (Comp. St. 1109), provides:
Sections 751 and 752, Rev. Stats. give authority to grant writs of habeas corpus only to judges and justices of the courts therein specified- Supreme, Circuit and District. The Judicial Code abolished the Circuit Courts. Only justices of the Supreme Court and judges of District Courts remain within the ambit of the statute. [263 U.S. 255, 273] Section 18, Judicial Code (Comp. St. 985):
A duly executed writing designated and appointed Judge Manton--
Petitioner's counsel took care to show this assignment, and, responding to the motion that the judge should proceed as a District Court in hearing the application for petitioner's discharge, he stated:
And in the brief here counsel maintains:
As Circuit Judges have no authority to issue writs of habeas corpus, Judge Manton acted unlawfully unless the proceeding was before him either as District Judge or as the District Court. The record shows he did not rely solely on his authority as Circuit Judge, and, considering his assignment and all the circumstances, we agree with the court below that he was exercising the [263 U.S. 255, 274] powers of the District Court. He was not a District Judge, but Circuit Judge assigned 'to hold a session of the District Court.'
If it be conceded that he acted as District Judge, and not as the District Court, nevertheless his action was subject to review. Webb et al. v. York (1896) 74 Fed. 753, 21 C. C. A. 65, holds that an appeal lies to the Circuit Court of Appeals from the final orders of a judge at chambers in habeas corpus proceedings. Notwithstanding Hoskins et al. v. Funk, 239 Fed. 278, 152 C. C. A. 266, to the contrary, we approve the conclusion reached in Webb v. York and think it is supported by sound argument. The court said:
See also United States, Petitioner, 194 U.S. 194 , 24 Sup. Ct. 629.
Carper v. Fitzgerald, 121 U.S. 87 , 7 Sup. Ct. 825, Ex parte Lennon, 150 U.S. 393 , 14 Sup. Ct. 123, McKnight v. James, 155 U.S. 685 , 15 Sup. Ct. 248, Lambert v. Barrett, 157 U.S. 697 , 15 Sup. Ct. 722, and Harkrader v. Wadley, 172 U.S. 148 , 19 Sup. Ct. 119, are cited by petitioner to show that no appeal lay from the order discharging petitioner. These cases relate to the jurisdiction of this court, not the Circuit Court of Appeals. The one first cited and most relied upon was decided in 1887. It recognizes the distinction between orders of a judge, as such, and decrees by the court. It denied the right to appeal here from a judge's order; it did not discuss the power of Circuit Courts to review such orders. The later cited cases go no further than to hold that appeals do not lie to this court from orders by judges at chambers.
Although in point, we cannot agree with Ex parte Jacobi (C. C.) 104 Fed. 681, where the opinion of the Circuit [263 U.S. 255, 277] Judge attempts to support denial of an appeal to the Circuit Court of Appeals from an order granted at chambers.
The court below had jurisdiction of the appeal,
On the merits, there is nothing unusual about the cause now before us. Unlike Ex parte Hudgings, 249 U.S. 378, 384 , 39 S. Sup. Ct. 337, 340 (63 L. Ed. 656, 11 A. L. R. 333), it cannot be regarded as 'an exception to the general rules of procedure.' Nor do we think it presents circumstances sufficiently extraordinary to bring it within any class of 'exceptional cases.' Henry v. Henkel, 235 U.S. 219, 228 , 35 S. Sup. Ct. 54, 56 (59 L. Ed. 203).
The matter heard by Judge Mayer was an ordinary contempt proceeding and Toledo Newspaper Co. v. United States, 247 U.S. 402 , 38 Sup. Ct. 560 is enough to show that the District Court had power to entertain it, decide whether the evidence established an offense within the statute and determine petitioner's guilt or innocence. When the latter found himself aggrieved by the decree his remedy by appeal was plain. Neglecting that course, he asked a single judge to review and upset the entire proceedings, and now claims there was no appeal from the favorable order. As tersely stated by Judge Hough:
The course taken indicates studied purpose to escape review of either proceeding by an appellate court. Petitioner may not complain of unfortunate consequences to himself.
The Circuit Court of Appeals correctly applied the well-established general rule that a writ of habeas corpus cannot be utilized for the purpose of proceedings in error. Harlan v. McGourin, 218 U.S. 442, 445 , 31 S. Sup. Ct. 44, 21 Ann. Cas. 849; Matter of Gregory, 219 U.S. 210, 213 , 217 S., 31 Sup. Ct. 143; Glasgow v. Moyer, 225 U.S. 420, 428 , 429 S., 32 Sup. Ct. 753. Its decree is affirmed, and the cause will be remanded to the District Court for the Southern District of New York, with directions to vacate the order [263 U.S. 255, 278] releasing petitioner; discharge the writ, and take such further proceedings as may be necessary to carry this opinion into effect.
Mr. Chief Justice TAFT, concurring.
I concur fully in the opinion of the Court.
It is of primary importance that the right freely to comment on and criticize the action, opinions and judgments of courts and judges should be preserved inviolate; but it is also essential that courts and judges should not be impeded in the conduct of judicial business by publications having the direct tendency and effect of obstructing the enforcement of their orders and judgments, or of impairing the justice and impartiality of verdicts.
If the publication criticizes the judge or court after the matter with which the criticism has to do has been finally adjudicated and the proceedings are ended so that the carrying of the court's judgment cannot be thereby obstructed, the publication is not contempt and cannot be summarily punished by the court however false, malicious or unjust it may be. The remedy of the judge as an individual is by action or prosecution for libel. If, however, the publication is intended and calculated to obstruct and embarrass the court in a pending proceeding in the matter of the rendition of an impartial verdict, or in the carrying out of its orders and judgment, the court may, and it is its duty to protect the administration of justice by punishment of the offender for contempt.
The federal statute concerning contempts as constructed by this court in prior cases vests in the trial judge the jurisdiction to decide whether a publication is obstructive [263 U.S. 255, 279] or defamatory only. The delicacy there is in the judge's deciding whether an attack upon his own judicial action is mere criticism or real obstruction, and the possibility that impulse may incline his view to personal vindication are manifest. But the law gives the person convicted of contempt in such a case the right to have the whole question on facts and law reviewed by three judges of the Circuit Court of Appeals who have had no part in the proceedings, and if not successful in that court, to apply to this Court for an opportunity for a similar review here.
The petitioner and his counsel have made such a review impossible. Instead of pursuing this plain remedy for injustice that may have been done by the trial judge and securing by an appellate court a review of this very serious question on the merits, they sought by applying to a single judge of only coordinate authority for a writ of habeas corpus to release the petitioner on the ground that the trial judge was without jurisdiction to make the decision he did. This raised the sole issue whether the trial judge had authority to decide the question, not whether he had rightly decided it.
Relying on a decision of this court made years ago when the statutory provisions were different from those which now apply, the petitioner and his counsel thought that if they could secure a decision from a single Circuit Judge releasing the petitioner, no appeal would lie from his decision and that thus resort to the appellate courts could be avoided. The single judge to whom they applied released the prisoner. They were, however, mistaken in supposing that no appeal lay to the judge's decision on the question of the trial court's jurisdiction. The government prosecuted its appeal, and the only issue presented in that review is the matter of the trial court's jurisdiction which the Circuit Court of Appeals and we uphold. In this way, the petitioner and his counsel threw [263 U.S. 255, 280] away opportunity for a review of the case on its merits in the Circuit Court of Appeals and in this court in their purpose to make a short cut and secure final release through the act of a single judge. This is the situation the petitioner finds himself in and we are without power to relieve him.
Mr. Justice HOLMES, dissenting.
I think that the petitioner's resort to habeas corpus in this case was right and was the only proper course. Very possibly some of the cases confuse the principles that govern jurisdiction with those that govern merits. See Fauntleroy v. Lum, 210 U.S. 230, 235 , 28 S. Sup. Ct. 641. But I think that this should be treated as a question of jurisdiction. The statute puts it as a matter of power:
I think that these words should be taken literally and that we do not need a better illustration of the need to treat them as jurisdictional and to confine the jurisdiction very narrowly than the present case. For we must not confound the power to punish this kind of contempts with the power to overcome and punish disobedience to or defiance of the orders of a court, although unfortunately both are called by the same name. That of course a court may and should use as fully as needed, but this, especially if it is to be extended by decisions to which I cannot agree, makes a man judge in matters in which he is likely to have keen personal interest and feeling although neither selfprotection nor the duty of going on with the work requires him to take such a part. It seems to me that the statute on its face plainly limits the jurisdiction of the judge in this class of cases to those [263 U.S. 255, 281] where his personal action is necessary in a strict sense in order to enable him to go on with his work. But wherever the line may be drawn it is a jurisdictional line. 'The jurisdiction attaches only when the suit presents a substantial claim under an act of Congress.' Blumenstock Brothers Advertising Agency v. Curtis Publishing Co., 252 U.S. 436, 441 , 40 S. Sup. Ct. 385, 387 (64 L. Ed. 649); Ex parte Hudgings, 249 U.S. 378 , 39 Sup. Ct. 337, 11 A. L. R. 333.
I think that the sentence from which the petitioner seeks relief was more than an abuse of power. I think it should be held wholly void. I think in the first place that there was no matter pending before the Court in the sense that it must be to make this kind of contempt possible. It is not enough that somebody may hereafter move to have something done. There was nothing then awaiting decision when the petitioner's letter was published. The English cases show that the law of England at least is in accord with my view. Metzler v. Gounod, 30 Law Times R. (N. S.) 164. But if there had been, and giving the most unfavorable interpretation to all that the letter says, I do not see how to misstate past matters of fact of the sort charged here could be said to obstruct the administration of justice. Suppose the petitioner falsely and unjustly charged the judge with having excluded him from knowledge of the facts, how can it be pretended that the charge obstructed the administration of justice when the judge seemingly was willing to condone it if the petitioner would retract? Unless a judge while sitting can lay hold of any one who ventures to publish anything that tends to make him unpopular or to belittle him I cannot see what power Judge Mayer had to touch Mr. Craig. Even if feeling was tense there is no such thing as what Keating, J., in Metzler v. Gounod calls contingent contempt. A man cannot be summarily laid by the heels because his words may make publich feeling more unfavorable in case the judge should be asked to act at some [263 U.S. 255, 282] later date, any more than he can for exciting public feeling against a judge for what he already has done.
Mr. Justice BRANDEIS concurs in this opinion.