In re Acker

• Decision Date: 30 August 1894
• Docket Number: 279.
• Citation: 66 F. 290
• Parties: In re ACKER.
• Court: U.S. District Court — District of Montana

66 F. 290

In re ACKER.

No. 279.

United States Circuit Court, D. Montana.

August 30, 1894

David B. Carpenter, for petitioner.

Preston H. Leslie, U.S. Dist. Atty., for respondent.

KNOWLES District Judge.

In this cause the petitioner, W. E. Acker, was arrested by a deputy United States marshal upon the charge of contempt of this court, committed in interfering with the receivers of the Northern Pacific Railroad Company in the management of the property of said company held by said receivers by virtue of an order of the above circuit court. By affidavits filed, the contempt was charged to have been committed by intimidating and seeking by means of certain statements to induce certain employes of the said receivers to desist from working therefor. Some time in the month of November, 1893, the above court appointed Thomas F. Oakes and others receivers of all the property of said the Northern Pacific Railroad in Montana, and authorized and required of them that they operate the railroad belonging to said company in this district. Upon the 30th day of June, 1894, the above court upon certain representations made to it by the said receivers, showing a necessity therefor, made the following order:

'Now therefore, in consideration of the premises, it is hereby ordered that the United States marshal within and for the district of Montana take into his service a sufficient number of deputies for that purpose, and he is hereby directed and required to furnish and afford all necessary protection to the receivers appointed by this court in the above-entitled action to enable them to manage and operate the said Northern Pacific Railroad; and the said marshal is hereby directed and required to take from the possession of all persons now unlawfully holding the same such portion of the train equipment of the said road, such telegraph offices or other portions of the property of the said Northern Pacific Company, to which the receivers are entitled to the possession, and to restore the possession thereof to the said receivers; and he is further directed and required to attach and bring before this court any and all persons who shall wrongfully and unlawfully or in any manner interfere with the possession, management, control, or operation of said railroad and its equipment by the said receivers, to show cause, if any they have, why they should not be punished as for contempt of this court for wrongfully interfering therewith.'

Through said receivers, the above court was in the possession, or entitled to the possession, of all the railroad property of said company in Montana. The marshal is the executive officer of the court and, when an emergency is presented requiring such action the court can call upon said officer to preserve in the hands of the receivers, appointed by the court, the property intrusted to them, and to insure to them its management and operation. Out of necessity, the court must have this right to call upon its chief executive officer. Many federal courts within the last few months have exercised this right throughout different portions of the United States. Said railroad, by its charter, is required to transport the military stores and mails of the national government, and it seemed from facts presented to the court that all effort the court was capable of making should be made to the end that the charter of the company should not become void, and that it should be operated to the end that it might be so used. The above order, so far as it directed the marshal to arrest all persons who might be guilty of contempt in interfering with the said receivers in the possession and management of said property, was not considered as a warrant of arrest. If it could be so classed, it would be void in not naming the person to be arrested. It will be noticed that this order was not to arrest persons who previous thereto had committed any offense, but was intended for future guidance. It was then thought that said officer might have this authority to arrest any one who should interfere with the said rights of the said receivers, and which rights he was ordered to maintain without any such order, and that this order only pointed out the legal duty of the officer that existed in the absence of any such order. About the only power provided by law for enforcing the other parts of the order to preserve the possession and rights of said receivers in said railroad property was this right to arrest for contempt. He could not arrest under the present state of the law for a breach of the peace or an assault and battery. Without authority to act in some way, if necessity required, the first part of the order would be useless.

In the case of New Orleans v. Steamship Co., 20 Wall. 387, the supreme court said: 'Contempt of court is a specific criminal offense. The imposition of a fine was a judgment in a criminal case. ' This was said in a case when the mayor of New Orleans, Clark, was under a rule ordered to show cause why he should not be punished for contempt, and was punished by a fine. The same language is used in Re Swan, 150 U.S. 637, 652, 14 Sup.Ct. 225. What class of criminal offenses contempt belongs to is nowhere, I think, defined. It may be punished by fine or imprisonment at the discretion of the court. And there is no limit placed to the extent of either. It is proper to say, however, that courts have not been disposed to be arbitrary and unreasonable in inflicting punishment in such cases. In some cases it would seem that contempt should not be classed as a criminal offense. In cases where a person is imprisoned in order to compel the submission of a party to a decree in equity, it would seem that the power to punish for contempt was assimilated to a civil remedy. The case under consideration, however, would come under the class denominated as a 'criminal offense.' The right of an officer to arrest in criminal cases varies with the nature of the offense. In case of felony the officer may arrest after the commission of the offense, as well as at the time thereof, without a warrant; but in cases of a misdemeanor, except in certain cases, and where the statute authorizes it, he cannot arrest without a warrant after the offense has been committed, while he has full power at the time of the commission thereof to arrest without warrant. This appears to have been the common-law rule. It was contended in this case that the fourth amendment to the constitution of the United States prohibited a federal officer from arresting any one without a warrant. The inspection of the language of that amendment will show that such should not be its interpretation. It reads as follows:

'The right of the people to be secure in their persons, homes, papers and effects against unreasonable searches and seizure shall not be violated, and no warrant shall issue but upon probable cause supported by oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.'

To fully understand the meaning of this clause, quite an extensive consideration of the provisions of the common law pertaining to individual rights would have to be examined. In the main, this provision makes a part of our national constitution well-known provisions of the common law. But these common-law provisions never established the rule that no one could be arrested for a criminal offense without a warrant. Such was not the case. It is plain from this provision that, when a warrant is issued to arrest a person, it must be upon probable cause, and the person to be arrested thereunder described therein.

That the force of this provision contended for was held not be correct in the case of Rohan v. Sawin, 5 Cush. 281. Archb. Cr. Prac. & Pl. 97.

In considering the character of the criminal offense to which contempt belongs, as to whether a misdemeanor or a felony, we have no guide at common law. But it is an established rule under federal criminal procedure that no offense against the laws of the United States is a felony, unless especially declared to be such by statute. The offense in this case, then cannot be declared a felony, and, if it is to be classified at all, must be designated as a misdemeanor.

It was also urged that the practice that pertained to the Code of Criminal Practice of the state of Montana in regard to the arrest of offenders should prevail. Except where there is some special statute, the criminal practice of the state should not prevail, but the practice in the federal courts where there is no federal statute should be assimilated to the practice at common law. U.S. v. Block, 4 Sawy. 211, Fed. Cas. No. 14,609.

It was suggested in the hearing that section 1014 of the Revised Statutes adopted the practice of the state courts in this matter of arrest. The part of said section pertaining to the question in hand is as follows:

'For any crime or offense against the United States, the offender may by any justice or judge of the United States, or by any commissioner of a circuit court to take bail, or by any chancellor, judge of a supreme or superior court, chief or first judge of common pleas, mayor of a city, justice of the peace, or other magistrate

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