Toledo Newspaper Co. v. United States

• Decision Date: 15 December 1916
• Docket Number: 2786.
• Citation: 237 F. 986
• Parties: TOLEDO NEWSPAPER CO. et al. v. UNITED STATES.
• Court: U.S. Court of Appeals — Sixth Circuit

237 F. 986

TOLEDO NEWSPAPER CO. et al. v. UNITED STATES.

No. 2786.

United States Court of Appeals, Sixth Circuit.

December 15, 1916

Lawrence Maxwell, of Cincinnati, Ohio, for plaintiffs in error.

Wm. L Day and E. S. Wertz, U.S. Atty., both of Cleveland, Ohio, for the United States.

Before WARRINGTON, KNAPPEN, and DENISON, Circuit Judges.

DENISON Circuit Judge.

The chief franchises of the street railway system in the city of Toledo were by their terms to expire on March 27, 1914, and there had been long and bitter controversy between the street railway company and some elements in the city which opposed franchise renewals, unless on conditions which the railway company would not accept. The council passed an ordinance fixing three cents as the rate of fare after March 27th, and an application was made to the court below for a temporary injunction to forbid any attempt to enforce this ordinance. The Toledo Newspaper Company, a corporation, was the publisher of the Toledo News-Bee, and this paper contained editorial and news articles on the subject. Later, and upon the direction of the judge of the court, an information was filed against the publishing corporation and its managing editor, charging that certain of the publications constituted a contempt. A demurrer to this information was overruled, an answer was filed, and upon the issue so joined a trial was had. The respondents were found guilty and were condemned to pay fines-- a nominal one by the editor, but a very substantial one by the publishing company. 220 F. 458. Both respondents join in this writ of error. A more detailed statement of facts will be found in connection with the discussion of the questions involved.

1. One matter, more or less mentioned on the argument, should receive notice, although it cannot be important to our disposition of the case. At the trial the court was presided over and the findings were made and sentence pronounced by the same judge who was holding the court at the time of the publications complained of. His legal right to conduct the trial is not questioned; indeed, it is obvious that, in the typical case of direct contempt, to require a substitution of judges before the contempt could be punished would be to deprive the proceeding of its summary character and destroy its efficiency as a means of securing the unimpeded administration of the law. However, there are frequent cases where, even though mistakenly, a general belief may easily arise that there is a personal controversy between the contemner and the judge of the court. Even in cases of this class, if the necessity for summary action or if other reasons make impracticable the substitution of another judge to hear the contempt matter, the duty of the regular judge of the court to proceed with it is clear, no matter how embarrassing this duty may be to him; but, in these cases, if there is no immediate urgency, and if no other reason exists making it specially appropriate that the same judge act, we think it by far the better policy to call in another judge and the federal system provides special facility for so doing. We can well understand the reluctance with which a District Judge would put himself in a position which seemed to be a shifting to another of this sometimes very burdensome and very delicate duty; but it is of the greatest importance that contempt proceedings be put, as far as possible beyond the reach of even unjust adverse criticism, and, in such a situation as has been recited, the judges of this court upon whom the duty may fall will always be ready to assign a judge from another district.

2. This is an error proceeding, in a case at law. No specific findings of fact were requested or made. General and ultimate findings were embodied in the order. Under these conditions it is not necessary that every fact necessary to support the judgment should be particularly found. Even if we do not here apply the strictness of the rule that every fact necessary to support the judgment will be assumed so far as not contradicted by the record, we may at least assume those things which are naturally to be inferred, and which the opinion and the course of the proceedings below indicate every one took for granted.

3. It is undisputed that the newspaper publications had reference to the general subject-matter, some phases of which were then pending in the District Court, and had reference to the making and the effect of the injunctional order, the application for which was then pending. It is suggested, if not very directly urged, upon the oral argument, that the court had no jurisdiction whatever in the pending cause to make such an injunctional order as asked, or any order to that effect, and that, therefore, there could be no contempt with regard to such subject-matter. This question is not distinctly covered by any assignment of error nor is it mentioned in the very careful brief prepared by respondents' counsel; but it pertains to the jurisdiction and should be noticed even upon our own motion. It requires further details to be stated.

On January 26, 1914, judgment creditors, citizens of New York, filed in the court below a bill in the nature of a creditors' bill against the railway, citizen of Ohio, setting out, among other things, that the three-cent ordinance was confiscatory, and that compliance therewith would destroy the equity of redemption from existing mortgages, to which equity alone judgment creditors could resort, and that there had been in effect an extension of the franchises until October. It prayed a receivership, and that, if the judgment was not satisfied before the date set for going into effect of the ordinance, the city of Toledo then be made a party defendant, and that it then be enjoined from enforcing the ordinance. A motion for the appointment of a receiver was entered, but not brought on for hearing. March 24th, on petition that day filed, an order was entered permitting plaintiffs to make the city a defendant, and an amended bill was filed accordingly. On the same day the railway company filed its cross-bill against the city, asking the same relief; and motions for preliminary injunction were duly entered. These motions were brought to the attention of the court on March 26th. The court did not that day hear the motions formally, but indicated that, until there was time for decision, matters ought to remain in statu quo. On March 30th, and after formal hearing on the 28th, an opinion was filed holding that the ordinance was not self-executing; that it provided for its execution by the filing of a bill and the obtaining of a court order to put it in force; that all questions involved could be raised in defending such application; that plaintiffs had, in this way, an adequate remedy without themselves moving affirmatively in a court of equity; and, hence, that the court could not grant the injunction asked. No order denying the motions seems to have been entered. Later, the motions were renewed and arguments and hearings before the court were had from time to time in August and September. On September 12th the court filed an opinion holding that the situation had changed in that the city officials were interpreting the ordinance as self-executing and were attempting to enforce it without any court proceeding, and that, since it was practically conceded that the three-cent rate was confiscatory, plaintiffs were entitled to a temporary injunction.

There was ample jurisdiction to justify punishing any contempt committed at this stage of the case. Even if it might be said that the court is not entitled to full protection as a court while it is considering and deciding, either way, the question whether it has power to give the relief sought (U.S. v. Shipp, 203 U.S. 563, 27 Sup.Ct. 165, 51 L.Ed. 319, 8 Ann.Cas. 265; Fair v. Kohler, 228 U.S. 22, 33 Sup.Ct. 410, 57 L.Ed. 716), and even if it might be denied that the real dispute here was whether use of the streets by the company would be an acceptance of the ordinance, notwithstanding the declared purpose not to accept, and might be denied that this dispute presented a justiciable controversy giving power to make an order fixing the terms of use temporarily, yet it cannot be doubted that the bill as...