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"Mr. Clay Cooke: Is your honor asking me? Then Mr. McCormick, for the court, inter

"Judge Wilson: I am stating the question, posed an objection that there ought not to and does that under the law constitute con

be an accentuation of the contempt in the tempt? If you have any defense, you have not letter by a repetition of innuendoes and resuggested any.

This court would be glad to give flections on the court or by including them you ample time to file any pleadings pertinent and secure any evidence that might support or

in the record. tend to support it, but unless you desire now

Mr. Clay Cooke said he had dictated and to state that you have some defense you care sent the letter after advising with reputable to file and present, and indicate what that de- counsel, who had read it and believed it fense is to this charge, then I shall direct that proper. this proceeding go forward, and you are fully

“The letter itself was not carefully read by protected, since the higher courts are open to you to correct any error, even to the Supreme

myself.” Court, that the judge of this court might com

"Judge Wilson: I would like to know who mit here. Now if you have any defense that is said reputable counsel are." pertinent to this order, state what it is."

Mr. Clay Cooke said it was his partner,

Mr. Dedmon. He said the letter was dictatMr. Cooke began to dictate a statement to ed, and was not read by his client, J. L. be filed by him, to the effect that he and Walker; that he had not made the contents Walker believed that they had a good de- public, and intended it only for the judge's fense, and that the matters of fact stated in eye, to relieve him from embarrassment; that the letter as to the bias and prejudice of the peating a desire for counsel and the investi

the purpose was most friendly. After rejudge were true.

gation as to the law of contempt in its ap“The Court: That does not constitute any plication to this case, Mr. Cooke referred to defense.

the statement he had been attempting to dic"Mr. Clay Cooke: I'll state, then, something tate, and asked that he might make it fuller, otherwise

because of certain interruptions, and to put "Judge Wilson: Repeating the insult does in anything relevant to his defense. not constitute any defense. "Mr. Clay Cooke: I am not trying to repeat

"You may add-I have not heard any defense the insult, if your honor please.

I am suggested here yet, but you may add any, hownow stating my good faith.

ever, if you think of any later. Read the order, "Judge Wilson: I mean this, that the court Mr. District Attorney." is not permitting it stated-you may, if you regard that as proper, you may state it in your for the arrest of the defendants set forth in

The district attorney then read the order bill of exceptions in concluding the record.

"Mr. Clay Cooke: That affiant had hereto- the record in said cause; the defendants fore been on friendly relations with said Judge were directed to stand up and the court adJames C. Wilson

dressed them as follows: "Judge Wilson: That is a matter that is wholly immaterial here; it don't make any dif- *""Judge Wilson: The findings of fact, all of ference how friendly.

which are within the personal knowledge of "Mr. Clay Cooke: I am stating my good this court, will be made in the order entered: faith in writing the letter. And affiant believed “Now, gentlemen, it is a matter almost of in writing said letter that he would relieve the common knowledge that the court may be lawsaid judge of the embarrassment of filing the fully criticized, the same as any other branch necessary statutory affidavits of disqualifica of the government, and that it is not unlawful tion, and if said letter

or a contempt of the court for any person, in"Judge Wilson: Now the court is not caring cluding newspapers, to pass criticisms upon the anything about your suggesting the disqualifi- judiciary, including the federal courts and the cation of the court; that is your right before judges, regardless of their truth or falsity, these important trials, but you did not avail when those criticisms are concerning past matyourself of that privilege. You understood as ters not at the time pending in the courts. a lawyer how to proceed in order to suggest tbe | This law is based upon sound principle. Every disqualification of the judge.

branch of the government needs constructive "Mr. Clay Cooke: I am going to state why criticism; when it is such, it is wholesome and I did not proceed

helpful; no judge, I think, welcomes it more "Judge Wilson: That does not constitute nor fears it less than the judge of this court. any defense to this contempt charge.

But it is altogether a different proposition, "Mr. Clay Cooke: Can I put that in about and is unlawful and clearly constitutes a conwriting the letter? Can I put that in later? tempt of court, for any litigant or attorney to "Judge Wilson: You may.

pass such in the presence of the court, not in

a respectful, but in a contemptuous and slan*"Mr. Clay Cooke: That affiant wrote said derous manner, concerning matters then pendletter without any intention on his part of in- ing and later to be disposed of by the court. curring contempt proceedings, and without any "It is obvious upon a reading of this letter thought of contempt, and believed that said let that you deliberately designed to improperly inter would not be so construed; that affiant has fuence the court in these pending matters the highest regard for this court as a judge; wherein no disqualification is suggested, and that affiant believed in good faith the court you were very careful to suggest that the court had heard things concerning—"

was not disqualified in certain matters, and it is

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(45 S.Ct.) the view of the court that it was your thought I “Mr. McCormick: An appeal does not lie in and aim to destroy the independence and the such a case. The evidence, gentlemen, if at very impartiality of the court as to those mat- all, must be reviewed by writ of error, if reters.

viewed at all. “And I have some more things I should like "Mr. Clay Cooke: The statement of the to remind you gentlemen of, your conduct and court is he will consider a writ of error or apcourse as litigant and as an attorney of this peal. In this case we will have 60 dayscourt, in many respects, has been reprehensi- “Judge Wilson: Take these respondents to ble. You have filled your pleadings with scan- jail, Mr. Marshal. dalous charges against trusted officials of this "Mr. McCormick: If they are going to take court. You have charged that the referee in the full 60 days on the matterbankruptcy, the attorneys for the petitioning "Judge Wilson: No; there is not going to be creditors, and the trustee in bankruptcy en- any 60 days; the higher court is going to pass * 526

upon this matter at once. tered into a corrupt conspiracy to do *many un- "Mr. Dedmon: Did

your honor fix the lawful things, all to deprive you, J. L. Walker, amount of the bond? of your rights in this court. And not only that,

"Judge Wilson: One thousand dollars. I but while the jury were deliberating in cause

am not allowing them bond, not releasing the No. 984, and though in charge of the marshal defendants. It is a writ of error bond. of this court, you, both of you being a party “Mr. Dedmon: You mean you are not going to it, employed a private detective to follow to let them appeal from the order adjudging and shadow them, with a view of reporting them to spend 30 days in jail ? to you any corrupt conduct on their part; and

"Judge Wilson: If they perfect this appeal, you, J. L. Walker, after the jury had rendered I might release them from jail-show that they its verdict of $56,000 against you, you em- are going to appeal it, and do it in a hurry." ployed this same detective, whose sworn statement I hold in my hand, to follow the foreman

*528 of the jury, Mr. E. G. Thomas, an honorable

*Mr. Edwin C. Brandenburg, of Washingand respected citizen of Tarrant county, stat-ton, D, C., for petitioner.

*530 ing that you expected him to meet some one and

*Mr. Merrill E. Otis, of St. Joseph, Mo., be paid off—in other words, to receive bribe money for his verdict in said cause. And not for the United States. only that, but you gave this same private de

*532 tective to understand that another one of the *Mr. Chief Justice TAFT, after stating the jurors, an honorable citizen of Parker county, case as above, delivered the opinion of the had been improperly approached and influenced Court. as a juror in this case“Mr. J. L. Walker: Your honor, pardon me, court, made on behalf of the petitioner, is

The first objection to the sentence of the but I would like to state that J. L. Walker did that the letter written to the judge is not a but what he is in position to prove and I have

contempt of the court. Section 21 of the it in my pocket"Mr. Marshal, cause this man to desist.

Judicial Code (Comp. St. $ 988) contains the "Mr. J. L. Walker: I beg your pardon; 1 following: thought I had the right to spe

"Whenever a party to any action or proceed“Judge Wilson: No; you haven't got a right. ing, civil or criminal, shall make and file an Your time to reply is passed.

affidavit that the judge before whom the action "In view of all this, it is not surprising that or proceeding is to be tried or heard has a you men would deliver this letter to the court personal bias or prejudice either against him with the utterly false statement in it that this or in favor of any opposite party to the suit, court bad permitted himself to be improperly such judge shall proceed no further therein, influenced and whispered to by interested par- bui apother judge shall be designated in the ties against a litigant in this court. It is a simple and easy matter to analyze the charac- manner prescribed in the section last *precedter of any man who is expecting every other ing, or chosen in the manner prescribed in sec. man to act dishonestly and corruptly.

tion twenty-three, to hear such matter. Er"Your whole course, as I say, has been con

ery such affidavit shall state the facts and the temptible, not only in this matter, and it is not reasons for the belief that such bias or prejsurprising that,you delivered this letter to the udice exists, and shall be filed not less than *527

ten days before the beginning of the term of court, and is surprising that *you did not state the court, or good cause shall be shown for the more in the letter, and of course you are in failure to file it within such time. No party contempt; if you are not, you have your rem- shall be entitled in any case to file more than edy; and you, J. L. Walker, I sentence to the one such affidavit; and no such affidavit shall Tarrant county jail for 30 days and the pay- be filed unless accompanied by a certificate of ment of a $500 fine

counsel of record that such affidavit and ap“Mr. McCormick: I doubt whether your plication are made in good faith.” honor has the authority to assess both fine and imprisonment. The statute says you may pun- [1] It is said that all that the petitioner ish by 'fine or imprisonment.' I believe I would intended to do by this letter was to advise suggest that you visit such fine as you see fit, the court of the desire of his client to have or such imprisonment, but not both.

"Judge Wilson: I assess a punishment of 30 another judge try the four cases yet to be days against each of these respondents."

heard, and of his own desire to avoid the

necessity of filing an affidavit of bias under Mr. Cooke asked that a bond be fixed pend- the above section in those cases by inducing ing appeal.

the regular judge voluntarily to withdraw.

now.

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Had the letter contained no more than this, I decision of this court in Ex parte Terry, 128 we agree with the Circuit Court of Appeals U. S. 289, 9 S. Ct. 77, 32 L. Ed. 405. It was that it would not have been improper.

there held that a court of the United States, But we also agree with that court that upon the commission of a contempt in open the letter as written did more than this. The

*535 letter was written the morning after the court, *might upon its own knowledge of the verdict, in the heat of the petitioner's evi- facts, without further proof, without issue or dent indignation at the judge's conduct of trial, and without hearing an explanation of the case and the verdict. At least two weeks the motives of the offender, immediately prowould ela pse before it was necessary to file ceed to determine whether the facts justified an affidavit of bias in the other cases. 1 The punishment and to inflict such punishment letter was written and delivered pending fur- as was fitting under the law. ther necessary proceedings in the very case

The important distinction between the which aroused the writer's anger.

While Terry Case and the one at bar is that this it was doubtless intended to notify the judge contempt was not in open court. This is that he would not be allowed to sit in the fully brought out in Savin, Petitioner, 131 other cases, its tenor shows that it was also U. S. 267, 9 S. Ct. 699, 33 L. Ed. 150. The written to gratify the writer's desire to char- contempt there was an effort to deter a wit

ness in attendance upon a court of the Unitacterize in severe language, per*sonally de- ed States in obedience to a subpæna, while rogatory to the judge, his conduct of the he was in a waiting room for witnesses near pending case. Though the writer addressed the courtroom, from testifying and the ofthe judge throughout as “your honor,” this fering him money in the hallway of the did not conceal, but emphasized, the per- courthouse as an inducement. This was held sonal reflection intended. The expression to be "misbehavior in the presence of the of disappointed hope that the judge was big court,” under section 725, R. S. (now secenough and broad enough to overcome his tion 268 of the Judicial Code [Comp. St. & personal prejudice against petitioner's cli- 1245]). The court, speaking by Mr. Justice ent, and that the client would have the Harlan, said (page 277 [9 S. Ct. 702]): privilege of rebutting the whispered slan

“We are of opinion that, within the meanders to which the judge had lent his ear, and ing of the statute, the court, at least when the declaration that his confidence in the in session, is present in every part of the place judge had been rudely shattered, were per- set apart for its own use, and for the use of sonally condemnatory and were calculated its officers, jurors and witnesses, and misbeto stir the judge's resentment and anger. havior anywhere in such place is misbehavior Considering the circumstances and the fact in the presence of the court. It is true that that the case was still before the judge, but the mode of proceeding for contempt is not the

in every

of such misbehavior. without intending to foreclose the right of the petitioner to be heard with witnesses der the eye or within the view of the court, it

Where the contempt is committed directly unand argument on this issue when given an

may proceed 'upon its own knowledge of the opportunity, agree with the Circuit

facts, and punish the offender, without furCourt of Appeals that the letter was con-ther proof, and without issue or trial in any temptuous.

form' (Ex parte Terry, 128 U. S. 289, 309); But, while we reach this conclusion, we whereas, in cases of misbehavior of which the are far from approving the course of the judge cannot have such personal knowledge, judge in the procedure or absence of it adopt- and is informed thereof only by the confession ed by him in sentencing the petitioner. He of the party, or by the testimony under oath of treated the case as if the objectionable words others, the proper practice is, by rule or other

process, to require the offender to appear and had been uttered against him in open court. show cause why he should not be punished. 4

[2, 3] To preserve order in the courtroom Bl. Com. 286." for the proper conduct of business, the court must act instantly to suppress disturbance or *This difference between the scope of the violence or physical obstruction or disrespect words of the statute “in the presence of the to the court, when occurring in open court. court,” on the one hand, and the meaning of There is no need of evidence or assistance the narrower phrase, “under the eye or withof counsel before punishment, because the in the view of the court," or "in open court," court has seen the offense.

Such summary or "in the face of the court,” or “in facie vindication of the court's dignity and au- curiæ," on the other, is thus clearly indithority is necessary. It has always been so cated, and is further elaborated in the opinin the courts of the common law, and the ion. punishment imposed is due process of law. We think the distinction finds its reason, Such a case had great consideration in the not any more in the ability of the judge to

see and hear what happens in the open court 1 The next term of the court at Fort Worth would than in the danger that, unless such an open have been the second Monday in March (Judicial threat to the orderly procedure of the court Code, § 108 [Comp. St. § 1095), so that the affidavit ) and such a flagrant defiance of the person required by section 21 for disqualification need not have been filed before March 20. The letter and presence of the judge before the public was written February 15th.

in the “very hallowed place of justice,” as

same

case

we

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(45 S.Ct.) Blackstone has it, is not instantly suppress-, show cause. The rule should have contained and punished, demoralization of the ed enough to inform tbe defendant of the court's authority will follow. Punishment nature of the contempt charged. See Holwithout issue or trial was so contrary to lingsworth v. Duane, 12 Fed. Cas. 367, 369. the usual and ordinarily indispensable hear. Without any ground shown for supposing ing before judgment constituting due pro- that a rule would not have brought in the cess that the assumption that the court saw alleged contemnors, it was harsh under the everything that went on in open court was circumstances to order the arrest. required to justify the exception; but the After the court elicited from the petitionneed for immediate penal vindication of the er the admission that he had written the dignity of the court created it.

letter, the court refused him time to secure When the contempt is not in open court, and consult counsel, prepare his defense, and however, there is no such right or reason in call witnesses, and this, although the court dispensing with the necessity of charges and the opportunity of the accused to present itself *had taken time to call in counsel as a

The presence of the his defense by witnesses and argumant. friend of the court. The exact form of the procedure in the prose- United States district attorney also was secution of such contempts is not important. cured by the court on the ground that it The court, in Randall v. Brigham, 7 Wall. was a criminal case. 523, 540 (19 L. Ed. 285), in speaking of

[6] The court proceeded on the theory that what was necessary in proceedings against the admission that the petitioner had writ

ten the letter foreclosed evidence or arguan attorney at law for malpractice, said:

ment. In cases like this, where the intention "All that is requisite to their validity is that, with which acts of contempt have been comwhen not taken for matters occurring in open mitted must necessarily and properly have court, in the presence of the judges, notice

an important bearing on the degree of guilt should be given to the attorney of the charges and the penalty which should be imposed, made and opportunity afforded him for explanation and defence. The manner in which the court cannot exclude evidence in mitiga

tion. the proceeding shall be conducted, so that it be It is a proper part of the defense. without oppression or unfairness, is a matter There was a suggestion in one of the reof judicial regulation."

marks of the petitioner to the court that,

while he had dictated the letter, he had not *537

read it carefully, and that he had trusted *The court in Savin, Petitioner, 131 U. S. to the advice of his partner in sending it; 267, 9 S. Ct. 699, 33 L. Ed. 150, applied this but he was not given a chance to call witnessrule to proceedings for contempt.

es or to make a full statement on this point. [4] Due process of law, therefore, in the He was interrupted by the court, or the prosecution of contempt, except of that com-counsel of the court, in every attempted exmitted in open court, requires that the ac-planation. On the other hand, when the cused should be advised of the charges and court came to pronounce sentence, it comhave a reasonable opportunity to meet them mented on the conduct of both the petitioner by way of defense or explanation. We think and his client in making scandalous charges this includes the assistance of counsel, if re- in the pleadings against officials of the quested, and the right to call witnesses to court, and charges of a corrupt conspiracy give testimony, relevant either to the issue against the trustee and referee in bankruptof complete exculpation or in extenuation of cy, and of employing a detective to shadow the offense and in mitigation of the penalty jurymen while in charge of the marshal, and to be imposed. See Hollingsworth v. Du

afterwards to detect bribery of them, in ane, 12 Fed. Cas. 359, 360; In re Stewart, proof of which the court referred to a sworn 118 La. 827, 43 So. 455; Ex parte Clark, statement of the detective in its hands, 208 Mo. 121, 106 S. W. 990, 15 L. R. A. (N. which had not been submitted to the petiS.) 389.

tioner or his client. When Walker question[5] The proceeding in this case was noted this, the court directed the marshal to conducted in accordance with the foregoing prevent further interruption. It was quite principles. We have set out at great length clear that the court considered the facts in the statement which precedes this opin- thus announced as in aggravation of the ion the substance of what took place before, contempt. Yet no opportunity had been givat, and after the sentence. The first step en to the contemnors even to hear these new by the court was an order of attachment and charges of the court, much less to meet or the arrest of the petitioner. It is not shown

explain them before the sentence. We that the writ of attachment contained a copy think the procedure pursued was unfair and of the order of the court, and we are not oppressive to the petitioner. advised that the petitioner had an exact idea of the purport of the charges until the or- [7] *Another feature of this case seems to der was read. In such a case, and after call for remark. The power of contempt 80 long a delay, it would seem to have been which a judge must have and exercise in proper practice, as laid down by Blackstone protecting the due and orderly administra(4 Commentaries, 286), to issue a rule to ] tion of justice, and in maintaining the au

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thority and dignity of the court, is most im- , merce trade in territory of Alaska, since statportant and indispensable. But its exercise ute is not applicable to marine torts. is a delicate one, and care is needed to avoid arbitrary or oppressive conclusions. This

On Certificate from the United States Cirrule of caution is more mandatory where the cuit Court of Appeals for the Ninth Circuit. contempt charged has in it the element of Action by Bernard McHugh against the personal criticism or attack upon the judge. Alaska Steamship Company. On question The judge must banish the slightest personal certified by the Circuit Court of Appeals. impulse to reprisal, but he should not bend Question answered. backward, and injure the authority of the court by too great leniency. The substitution and R. E. Robertson, of Juneau, Alaska, for

Messrs. Wm. H. Bogle, of Seattle, Wash., of another judge would avoid either tend. Alaska S. S: Co. ency, but it is not always possible. Of course, where acts of contempt are palpably *Mr. James Wickersham, of Juneau, Alasaggravated by a personal attack upon the ka, for McHugh. judge, in order to drive the judge out of the case for ulterior reasons, the scheme should not be permitted to succeed. But

*Mr. Justice McREYNOLDS delivered the attempts of this kind are rare.

All of opinion of the Court. such cases, however, present difficult ques

The court below has certified two questions for the judge. All we can say up-tions of law concerning which it desires inon the whole matter is that, where condi-struction. Judicial Code, $ 239 (Comp. St. & tions do not make it impracticable, or where 1216). The first question follows.

Our anthe delay may not injure public or private swer to it renders a reply to the second one right, a judge, called upon to act in a case

unnecessary. of contempt by personal attack upon him, “(1) Is the owner of a ship, a common carrier may, without flinching from his duty, prop- engaged in coastwise commerce trade in the tererly ask that one of his fellow judges take ritory of Alaska, liable to one of its employés, his place. Cornish v. United States (C. C.

a stevedore, for damages which have resulted A.) 299 F. 283, 285; Toledo Co. v. United by reason of a defect or insufficiency due to

the owner's negligence in an appliance furnished States, 237 F. 986, 988, 150 C. C. A. 636.

to the employé as provided under sections and The case before us is one in which the 2 of the Act of June 11, 1906, c. 3073, 34 Stat. issue between the judge and the parties had 232, commonly known as the First Employers' come to involve marked personal feeling that Liability Act ?" did not make for an impartial and calm judicial consideration and conclusion, as the

The designated statute is entitled 'An act statement of the proceedings abundantly relating to liability of common carriers in shows. We think, therefore, that when this the District of Columbia and territories and case again reaches the District Court, to

common carriers engaged in commerce bewhich it must be remanded, the judge who tween the states and between the states and imposed the sentence herein should invite foreign nations, to their employees,” and the senior Circuit Judge of the circuit to

provides: assign another judge to sit in the second “Section 1. That every common carrier engaghearing of the charge against the petitioner. ed in trade or commerce in the District of Colum

bia, or in any territory of the United States, or *Judgment of the Circuit Court of Appeals between the several states, or between any teris reversed, and the case is remanded to the ritory and another, or between any territory or District Court for further proceedings in territories and any state or states, or the Dis

trict of Columbia, or with foreign nations, or conformity with this opinion.

between the District of Columbia and any state

or states or foreign nations, shall be liable to (268 U. S. 23)

any of its employees, or, in the case of his

death, to his personal representative for the ALASKA S. S. CO. V. McHUGH.

benefit of his widow and children, if any, if (Submitted March 10, 1925. Decided April 13, none, then for his parents, if none, then for 1925.)

his next of kin dependent upon him, for all dam

ages which may result from the negligence of No. 294.

any of its officers, agents, or employees, or by

reason of any defect or insufficiency due to its Admiralty Cw20—Employers' Liability Act inapplicable to marine torts.

negli*gence in its cars, engines, appliances, maFirst Employers' Liability Act June 11, chinery, track, roadbed, ways, or works. 1906, $S 1, 2, making common carrier in terri- "Sec. 2. That in all actions hereafter brought tories of United States liable for injuries to or against any common carriers to recover damagdeath of employee caused by "defect or insuf- es for personal injuries to an employee, or ficiency due to its negligence in its cars, en- where such injuries have resulted in his death, gines, appliances, machinery, track, roadbed, the fact that the employee may have been guilty ways or works," held inapplicable to injuries of contributory negligence shall not bar a resustained by stevedore employed by shipowner, covery where his contributory negligence was a common carrier engaged in coastwise com- | slight and that of the employer was gross in

For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes

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