Ex parte Craig, 308.

• Citation: 282 F. 138
• Decision Date: 22 May 1922
• Docket Number: 308.
• Parties: Ex parte CRAIG. [1]
• Court: United States Courts of Appeals. United States Court of Appeals (2nd Circuit)

282 F. 138

Ex parte CRAIG. ^[1]

No. 308.

United States Court of Appeals, Second Circuit.

May 22, 1922

[Copyrighted Material Omitted] of jurisdiction on defendant personally or by his voluntary appearance either in person or by attorney. Per Rogers Circuit Judge.

William Hayward, U.S. Atty., of New York City (David V. Cahill, Sp. Asst. U.S. atty., of New York City, of counsel), for appellant.

John P. O'Brien, Corp. Counsel, of New York City (Edmund L. Mooney, Charles T. B. Rowe, Russell Lord Tarbox, and Frank I. Tierney, all of New York City, of counsel), for appellee.

Before ROGERS and HOUGH, Circuit Judges, and LEARNED HAND, District judge.

ROGERS Circuit Judge.

The petitioner, Charles L. Craig, was during all the times herein involved, and still is, the comptroller of the city of New York, as well as a member of its board of estimate. It appears that on October 6, 1919, the petitioner Craig, as comptroller of the city of New York, addressed a letter to Hon. Lewis Nixon, in reply to a letter which Mr. Nixon had written to the comptroller inviting him to a conference in respect to the transportation situation in the city of New York. Mr. Craig's letter contained statements which criticized the conduct of the then District Judge Mayer, who had appointed a receiver of the Brooklyn Rapid Transit Company, the New York Municipal Railway Corporation, and the New York Consolidated Railroad Company. The receiver had taken possession of the assets of these roads and was operating the railways under the instruction and supervision of the court.

The New York State Public Service Commission for the First District moved the court for leave to intervene in the suit on behalf of the city of New York. At the same time the city of New York, through its corporation counsel, acting pursuant to a resolution of the board of estimate and apportionment, applied to the court for the appointment of Mr. Craig as coreceiver; he being, as comptroller, the chief financial officer of the city. The District Judge, Mayer, denied the motion for a coreceiver at that time without prejudice to its renewal at a subsequent time. Later certain other street railway corporations were also put in the hands of the receiver. The letter of Mr. Craig to Mr. Nixon, above referred to, among other things, said:

'Before any such conference can be seriously considered, and as an evidence of good faith on the part of those acting by and under the authority of the United States District Judge Mayer, there must be a reversal of the policy, for which Judge Mayer is responsible, of denying to myself and other members of the board of estimate and apportionment any access to original sources of information concerning the property and affairs of these various public utility corporations holding franchises to operate in the streets of New York.'

Again it stated:

'Judge Mayer refused to grant any of the relief sought by the city. He not only denied the relief, but he made orders which preclude any application being made by the municipal authorities to any other court or judge for any right of examination into the affairs or conditions of these corporations seeking municipal aid and favor. Truth is the mightiest weapon in every controversy. The orders of Judge Mayer deny to the municipal authorities the opportunity to ascertain the truth.'

It concluded as follows:

'It seems to me a monstrous thing that an order of a federal judge in a court of equity should stand between the public and the truth under such circumstances. Such an order is hostile to every interest of the city of New York in these controversies. Its operation and effect is to disarm the municipal authorities, to deny them the most effective instrument of redress, and to force them into a contest with corporate powers intrenched in darkness and concealment. The responsibility for the turmoil, delay, and dissatisfaction that has followed upon the orders of Judge Mayer, denying to the city of New York any representation in these receiverships, rests upon those who procure and are protected by such orders. As a first and preliminary evidence of good faith, those who desire such a conference and a reasonable solution of existing complications should procure the entry of orders by Judge Mayer putting the city of New York on an equal footing with the private interests active in the receiverships. A refusal to do this can but prolong and embitter the controversy, and it will not in the end procure any advantage whatever to the traction interests.'

This letter Mr. Craig sent, not only to Mr. Nixon, but he is alleged to have caused its publication by sending it to the Public Service Commission and to the various newspapers published in the district. The result was that the United States attorney filed an information charging Mr. Craig with criminal contempt under section 268 of the Judicial Code (Comp. St. Sec. 1245). The information set forth the statements in the letter which were alleged to be false, and that Craig had willfully, knowingly, unlawfully, and contemptuously made them. It alleged that the publication was calculated and intended by him to influence the court in the consideration of the suit in which the receiver was appointed and in proceedings then pending. It also alleged that the purpose was to intimidate the court, and to force and compel it to decide applications and questions in issue in accordance with Craig's wishes. It also alleged that the letter was written for the purpose of inciting public ridicule, scorn, and condemnation if the court's decisions were contrary to or at variance with the views and wishes of the defendant. It further alleged that it tended to obstruct and impede the administration of justice in said suits and proceedings.

A demurrer was interposed, which was overruled in an opinion which can be found in 266 F. 230, and the defendant was held to answer in contempt before Judge Mayer. The trial was commenced on May 10, 1920, and was concluded on June 10, 1920. Every consideration seems to have been given to counsel, and briefs were not submitted until October 30, 1920, and Judge Mayer reserved his decision until February 14, 1921. He appears to have given great consideration to the questions involved, filing a full and comprehensive opinion, which can be found in 279 F. 900. The opinion concluded as follows:

'The United States attorney is directed to submit to the court, on two days' notice to counsel for defendant, a proposed order in accordance herewith, which shall also provide that the defendant shall appear before the court in Court Room 331, of the Old Post Office Building on February 24, 1921, at 2 p.m., at which time such further proceedings will be had as may be proper.

The defendant is not only the incumbent of a high office but is also a member of the bar of this court. It is manifestly his duty to do all in his power to repair the wrong he has done. It is not a wrong with which the judge concerns himself in a personal sense and for that reason no personal apology is desired nor required. The wrong has been perpetrated against the administration of justice. The reparation which is within the power of the defendant is promptly to make and file in the office of the clerk of the court an unqualified retraction of the false statements respecting the court, referred to in paragraphs 1, 2, 3, and 4 of the information.'

It seems that Mr. Craig was given full opportunity to make retraction of what the District Judge found to be 'false charges,' the effect of which he also found tended to 'obstruct the administration of justice.' But Mr. Craig did not avail himself of the opportunity to make the retraction demanded and on February 24, 1921, the United States Attorney moved for sentence, and the court pronounced judgment and sentenced the defendant to be imprisoned for a term of 60 days, sentence to be executed at the Essex county jail, Newark, N.J.; The Attorney General of the United States having previously designated that as the place of confinement for defendants sentenced in the Southern district of New York for terms of less than 6 months.

On the same day that sentence was pronounced an application was made to one of the Circuit Judges in this circuit for a writ of habeas corpus, and the writ was signed and issued by him on the same day. It appears that the Circuit Judge who issued the writ had been duly designated by the Senior Circuit Judge of the circuit to hold a session of the District Court for the Southern District of New York for the hearing of such business as might come before him during the period between February 21, 1921, and ending March 5, 1921. Whether in awarding the writ he was acting in his capacity as a Circuit Judge, or in that of District Judge under the designation referred to, seems to be one of the controverted questions in the case.

The petition for the writ was addressed to the judge as 'Circuit Judge of the United States. ' The writ of habeas corpus required the production of the defendant before the United States Circuit Judge, and is signed by the judge, who placed under his signature the letters 'U.S.C.J.,' and nothing therein is said as to his sitting or acting as a District Judge. The first paragraph of his very comprehensive opinion, which can be found in 274 F. 177, and which was rendered on April 29, 1921, and in which he sustained the writ and directed the defendant's discharge, was as follows:

'The power of a Circuit Judge to issue a writ of habeas corpus is questioned by a motion to dismiss. I have held heretofore that a Circuit Judge has such power. In re David Lamar, 274 F. 160. Nothing has been submitted in this proceeding which causes me to change the views there expressed. Further, at the time of

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