In re Mason

• Decision Date: 08 September 1890
• Citation: 43 F. 510
• Parties: In re MASON.
• Court: U.S. District Court — District of Minnesota

43 F. 510

In re MASON.

United States District Court, D. Minnesota.

September 8, 1890

M. D Munn and D. W. Lawler, for petitioner.

J. M Shaw, for respondent.

NELSON J.

On August 18, 1890, a petition was presented to me signed to John H. Mason for a writ of habeas corpus. The petition is sworn to, and states in substance that said Mason was imprisoned and restrained of his liberty by J. C. Donahower who is the United States marshal of the district of Minnesota; and that the cause of such confinement or restraint is a certain pretended warrant or order, issued by R. R. Odell, as United States circuit court commissioner within and for the district of Minnesota, directing the said Donahower, as marshal, to arrest the petitioner for contempt in not obeying an alleged summons of said commissioner, which pretended warrant, as the petitioner is advised, issued without authority of law. A writ of habeas corpus was ordered and issued, and the marshal made the following return: 'United States of American, District of Minnesota-- ss.:

'I hereby certify and return that in obedience to the annexed writ I herewith produce the therein named John H. Mason, and have him now before the court as commanded in the said writ; and I further certify and return that the said John H. Mason is now in my custody, under and by virtue of a certain writ, issued by one R. R. Odell, Esq., a commissioner of the circuit court of the United States, a true and correct copy of which said writ is hereto attached.

J. C. DONAHOWER, U.S. Marshall.'

A copy of the warrant attached to the return is as follows:

'U.S. OF AMERICA, DISTRICT OF MINNESOTA, CITY OF MINNEAPOLIS. 'The President of the United States of America to the Marshal of the District of Minnesota, Greeting:

'You are hereby commanded to arrest John H. Mason, and immediately have John H. Mason before R. R. Odell, commissioner of the circuit court of the United States, in and for said district, at his office, No. 1121 Northwestern Guaranty Loan Building, in the city of Minneapolis, state of Minnesota, then and there to answer for the contempt by him committed in not attending before R. R. Odell, the said commissioner, though legally summoned.

(L.S.) 'Given under my hand and official seal this 27th day of Aug., 1890.

'R. R. ODELL,

'Commissioner of the Circuit Court of the United States for the District of Minnesota.'

The petitioner in traverse of the return of the marshal denied that he has committed any contempt as recited, and denies that he was summoned to appear before the said commissioner; and also denies that the commissioner had any legal right or authority to issue the writ, and that his detention and imprisonment are unlawful, and that he is entitled to his discharge. The petition and return of the marshal, with the accompanying papers, not giving sufficient information of the proceedings before the commissioner upon which he acted in issuing his warrant, and causing the arrest of the petitioner to be brought before him, then and there to answer for a contempt by him committed in not attending before him, a writ of certiorari was issued for a complete transcript, which has been produced and filed. In the report of the commissioner, a copy of the summons or subpoena is attached, which it is alleged in the warrant the petitioner disobeyed. It is in the following words:

'UNITED STATES OF AMERICA, DISTRICT OF MINNESOTA-- SS. 'The President of the United States of America to the Marshal of the District of Minnesota, Greeting:

'You are hereby commanded to summon John H. Mason, Andrew Dickey, and O. O. Randall, if they be found in your bailiwick, to be and appear before me, R. R. Odell, a commissioner of the circuit court of the United States for the district of Minnesota aforesaid, at my office, 913, etc., Guaranty Loan Building city of Minneapolis, in said district, on the 26th of Aug., 1890, at 2 o'clock P.M., to give testimony and the truth to say in a cause pending before me wherein the United States is complainant and William Pulfords and others defendants.

'In behalf of complainant.

'Hereof fail not under penalty of law, and have you then and there this writ.

'Given under my hand this 22d day of Aug., 1890.

'R. R. ODELL,

'Commissioner of the Circuit Court of the United States for the District of Minnesota.'

Indorsed:

'I received this writ * * * and served the same by copy as follows: Personally on J. H. Mason at 10 o'clock A.M., on the 26th day of August, 1890.

J. C. DONAHOWER, U.S. Marshal. 'Per W. S. DAGGETT, Deputy-Marshal.'

Upon this hearing of the habeas corpus, the petitioner was called to contradict the return of the officer of personal service. Without considering whether or not the evidence is sufficient to overcome the truth of the return, I will proceed to consider the principal question which has been urged. The substantial and controlling question presented for determination relates to the power of a commissioner of the circuit court of the United States in a criminal proceeding before him to arrest a citizen who refuses to obey a subpoena to appear as a witness and compel him to answer then and there for a contempt. Before coming to the consideration of this question, it is proper to say that the commissioner's report of the proceedings shows that on the 21st of August, 1890, a complaint, sworn to before another commissioner of the circuit court of the United States in this district, and upon which a warrant was issued for the arrest of certain alleged offenders against the laws of the United States, was presented to Commissioner Odell and the persons who had been arrested appeared: and, according to the transcript of the proceedings of the commissioner, were arraigned, and gave separate recognizances for their appearance before him on August 22d, at 2 P.M. On that day, defendants with counsel appeared, and a special attorney of the government; and, by agreement and consent of defendants, an adjournment was had until 2 P.M., August 26, 1890. The transcript states that this adjournment was requested by defendants' counsel for the purpose of determining whether defendants wanted an examination, or waived it. On agreement of counsel, the commissioner ordered the defendants to report to him as early as 2 P.M., August 25, 1890, whether they wished examination or not, and the subpoena was issued to John H. Mason, returnable August 26, 1890, which previously appears verbatim. Permission was given to the United States attorney to fill other names in the subpoena. On August 25, 1890, counsel notified the commissioner that the defendants would not waive examination, and requested and demanded a hearing; whereupon the commissioner sent notice to the special attorney of the government that the defendants demanded examination. On the 26th of August, at 2 P.M., the accused persons, with their counsel, and the special attorney, Mr. Baxter, appeared, and moved that an adjournment be had until September 5th upon an affidavit which, among other things, stated that two persons, naming them, were material witnesses for the government in this proceeding, without whose testimony it cannot safely proceed to the hearing of this matter, and that he was informed by their employers that they were out of the state, and would not return before September 15, 1890. Other reasons are given in the affidavit for an adjournment, which it is not important to state. The commissioner declined to grant the request of the government for the adjournment, and called John H. Mason who had been subpoenaed as a witness. The witness not appearing, the marshal was ordered to being him into court on adjourned day thereof; and cause was adjourned, as stated, until August 27, 1890, at 2 P.M. On the latter day, Mason not appearing, an attachment was issued for his arrest, which is the warrant recited by the marshal in his return to the writ of habeas corpus as the authority for holding the petitioner. An...