Ex parte Stricker

• Decision Date: 16 May 1901
• Citation: 109 F. 145
• Parties: Ex parte STRICKER.
• Court: United States Circuit Court, District of Kentucky

109 F. 145

Ex parte STRICKER.

United States Circuit Court, D. Kentucky.

May 16, 1901

T. F Hallam, M. M. Durrett, and Nat. Wright, for petitioner.

EVANS District Judge.

The petitioner, being confined in the jail of Kenton county, Ky applied to this court for a writ of habeas corpus, alleging in his petition that he was thus confined in violation of the constitution and laws of the United States and praying to be released. The jailer has certified the cause of the detention, and the facts appear to be as follows: Sidney G. Stricker is an attorney at law, who practices his profession at his home in Cincinnati, Ohio, and also in Covington, Kenton county, Ky. In January, 1901, he was retained as counsel for the respondent in the proceeding then pending in the Kenton circuit court for the disbarment of Theodore F. Hallam, an attorney of that court. He visited the Kenton circuit court on January 7, 1901, and was then informed by the clerk that the Honorable James P. Tarvin, the regular judge of that court, was absent in Illinois, and that from Chicago, in that state, he had sent the following telegram:

'Chicago, Ill., Jan. 7, 1901.

'To Rankin R. Revill, Circuit Court Clerk's Office, Covington, Ky.: Adjourn motion docket and jurors and all business until Tuesday, January 8th, 10 o'clock.

James P. Tarvin.'

Pursuant to the demand of his client, however, the petitioner went to the clerk's office of the court, and requested the clerk to hold an election by the attorneys then present for the selection of a special judge, pursuant to the provisions of section 968 of the Kentucky Statutes, which section is in this language:

'When, from any cause, the judge of the circuit court fails to attend, or being in attendance, cannot properly preside in an action, proceeding or prosecution pending in said court, or if either party shall file with the clerk of the court his affidavit that the judge will not afford him a fair and impartial trial, or will not impartially decide an application for a change of venue, the parties, by agreement, may select one of the attorneys of the court to preside on the trial, or hear the application, or hold the court for the occasion; and on their failure to agree upon an attorney, the attorneys of the court who are present and not interested, nor employed in the cause, shall elect an attorney of the court then in attendance, having the qualifications of a circuit judge, to hold the court for the occasion, who shall preside accordingly, and the judge so selected shall preside in all cases called during the term in the absence of the regular judge, or in which he cannot preside, except in those cases in which the special judge cannot properly preside. The election shall be held by the clerk, and in case of a tie, he shall give the casting vote. The person elected shall, during the period that he acts, have all the powers and be subject to all the responsibilities of a circuit judge.'

The clerk, though advised by his own counsel that it was his duty to hold an election for a special judge, declined, and the petitioner, as counsel for Hallam, filed a suit for a mandamus to compel him to do so. On Monday, January 14, 1901, the regular judge, having returned to Kentucky, proceeded to hear the case for the disbarment of Hallam, for whom the petitioner was present as counsel. The situation being thus, the judge, acting of his own motion, and in the midst of the trial of the Hallam case, sent for the clerk, and inquired of him who the Cincinnati attorney was who had appeared in his office the previous Monday, while the judge was absent in Chicago, and demanded the holding of an election for a special judge. Hearing this inquiry made, the petitioner, in a respectful and decorous manner, stated that he was the man. He was at once ordered to 'sit down,' which he did, and the case against Hallam proceeded until the noon hour, when, previous to taking a recess, the judge, without further proceedings, announced that 'Sidney G. Stricker if fined $25 for contempt of court, and the sheriff will take said Stricker in custody until the fine is paid. Should said fine be not paid, the sheriff will place said Stricker in the custody of the jailer until the fine is paid.'

The facts constituting the alleged offense for which the petitioner was thus fined were those above stated in reference to the attempt to elect a special judge in the absence of the regular judge, on January 7, 1901. No rule to show cause had been issued. No notice or summons had been served upon Stricker. No hearing was had, although the inquiry had been made of the clerk as above indicated, and, when the order imposing the fine was announced, the petitioner attempted to obtain a hearing, which was peremptorily refused, and the court, in doing so, ordered an immediate imprisonment if the fine was not at once paid, and remarked that he would 'teach these Cincinnati attorneys that they cannot come over here and upset the orders of this court. ' The orders thus referred to were doubtless those which the judge had telegraphed from Chicago, Ill., directing the adjournment of the court and the continuance of all cases. In view of the positive rights conferred by the provisions of section 968 of the Kentucky Statutes, and of the case of Venhoff v. Morgan, 11 Ky.Law Rep. 276, there might have been a reasonable doubt of the right of the absent judge, unless there was entire acquiescence, to deprive litigants of the statutory privilege of having an election held for a special judge, especially if the attempt of the regular judge to prevent it was made by a telegram from outside of his territorial jurisdiction. It might be conceived that the clearly-bestowed statutory right of having a case tried by a special judge in the absence of the regular judge was superior to the power of the latter exercised from outside of the state of Kentucky, particularly where there had been an express demand for the statutory right. But we need not discuss these questions, in view of the grounds upon which it is conceived the decision of this case must rest.

Upon the admitted facts as stated above, it seems to the court that the petitioner should be discharged. If the learned judge who committed him to the jail had seen the acts done which he held to be a contempt of his court, and if those acts had been done in the presence and view of the court, his judgment upon them, however arbitrary or erroneous any other tribunal might have considered them to be, would have been final, and there would have been no ground for the interference of any other court, for the reason that in that event the practice and processes of the state of Kentucky in such proceedings would have been conformed to; it being the well-settled doctrine in the state, as elsewhere, that any court may punish summarily any contempt committed in its presence. But in the case before us an attorney, in due discharge of his obligations to a client, visited the Kenton circuit court while the regular judge thereof was in the city of Chicago, Ill., and in strict conformity to the laws of Kentucky, and in the absence of the regular judge, before the clerk of the court, insisted upon the selection, in the proper way, of a special judge to try the case in which the petitioner was interested as counsel. For this act, thus done, while the regular judge was in a distant city and in another state, the judge, after his return, some days later, without anything which in any sense could be called a hearing, and without...