In re Ellerbe

• Decision Date: 04 October 1882
• Citation: 13 F. 530
• Parties: In re ELLERBE. [1]
• Court: U.S. District Court — Eastern District of Missouri

13 F. 530

In re ELLERBE. ^[1]

United States Circuit Court, E.D. Missouri.

October 4, 1882

Chester H. Krum, for petitioner.

M Drummond, Asst. U.S. Atty., for the United States.

McCRARY C.J.

The record of this case shows that the petitioner was arrested in this district upon a warrant issued from the office of the clerk of the circuit court of the United States for the eastern district of Arkansas, which warrant was issued by the order of that court in a proceeding against petitioner for contempt. It appears that petitioner was duly subpoenaed in said eastern district of Arkansas, on the twenty-sixth day of April, 1882, to appear and testify on the twenty-seventh day of said month as a witness in a civil cause pending in said court.

When duly served with the subpoena he was temporarily within said district on professional business, but was a resident of St Louis, within the eastern district of Missouri, more than 100 miles from Little Rock, Arkansas, where the said cause stood for trial. His arrest was ordered by that court for contempt in neglecting to attend the aforesaid court as a witness after having been duly served with process of subpoena. The warrant for petitioner's arrest was presented to the judge of the district court of this district, who indorsed thereon his order to the marshal of this district to arrest the petitioner and deliver him to the marshal of the United States for the eastern district of Arkansas. This arrest having been made, petitioner applied to the district court for discharge upon habeas corpus, upon the ground that the proceedings within this district were without warrant of law, and that petitioner was unlawfully restrained of his liberty, without justification and proper authority.

Section 725 of the Revised Statutes of the United States provides that--

'The courts of the United States shall have power to impose and administer all necessary oaths, and to punish by fine or imprisonment, at the discretion of the court, contempts of their authority: provided, that such power to punish contempts shall not be construed to extend to any cases except the misbehavior of any persons in their presence, or so near thereto as to obstruct the administration of justice, the misbehavior of any of the officers of said courts in their official transactions, and the disobedience or resistance by any such officer, or by any party, juror, witness, or other person, to any lawful writ, process, order, rule, decree, or command of the said courts.'

Section 1014 of the Revised Statutes of the United States provides that 'for any crime or offense against the United States' the offender may, by any judge of the United States, be arrested and imprisoned, or bailed 'for trial before such court of the United States, as by law has cognizance of the offense. ' And it further provides that 'when any offender or witness is committed in any district other than that where the offense is to be tried, it shall be the duty of the district judge of the district where such offender or witness is imprisoned, seasonably to issue, and the marshal to execute, a warrant for his removal to the district where the trial is to be had.'

It is conceded by the counsel for the petitioner that the statute authorizes the arrest in one district of a party charged with the commission of an offense against the United States in another district. But it is contended that contempt is not such an offense. This position, however, is untenable. A refusal to obey the process of a court of the United States is an attempt to obstruct the administration of justice, and is plainly an offense against the federal government.

A proceeding in contempt, in a federal court, is a criminal case, to be prosecuted in the name of the United States. Riggs v. Supervisors, 1 Woolw. 377; Ex parte Kearney, 7 Wheat. 38; New Orleans v. Steam-ship Co. 20 Wall. 387.

By the express terms of section 725 of the Revised Statutes of the United States, the courts of the United States are authorized to punish contempt, and this necessarily implies that it is an offense against the United States. It has frequently been held to be an offense against the United States, within the terms of the provision of the constitution which authorizes the president to pardon such offenders. Dixon's Case, 3 Op.Atty.Gen. 622; Conger's Case, 4 Op.Atty.Gen. 317; Rowan & Wells' Case, Id. 458.

It is next insisted on behalf of the petitioner that he is entitled to a hearing before he can be sent out of the district, and that he has not had such a hearing as the law requires. It was, no doubt, the duty of the marshal of the eastern district of Arkansas to apply to the judge of his district for an order for the arrest of the petitioner; and it was the duty of the district judge to enter into such an investigation as was necessary to enable him to determine whether the petitioner should be sent out of the district to answer the charge against him. Precisely how far the district judge was authorized to go upon such a hearing, it...