Kelton v. United States

• Decision Date: 10 December 1923
• Docket Number: 3028.
• Citation: 294 F. 491
• Parties: KELTON et al. v. UNITED STATES.
• Court: U.S. Court of Appeals — Third Circuit

294 F. 491

KELTON et al. v. UNITED STATES.

No. 3028.

United States Court of Appeals, Third Circuit.

December 10, 1923

Rehearing Denied January 24, 1924.

George Wasser, Charles A. O'Brien, and Stephen Stone, all of Pittsburgh, Pa., C. K. Morganroth, of Shamokin, Pa., and Edmund K. Trent and George H. Rankin, both of Pittsburgh Pa., for plaintiffs in error.

Walter Lyon, U.S. Atty., and George V. Moore and Arthur W Henderson, Sp. Asst. U.S. Attys., all of Pittsburgh, Pa.

Before BUFFINGTON, WOOLLEY, and DAVIS, Circuit Judges.

WOOLLEY Circuit Judge.

On petition of William A. Kelton, Group Head of Federal Prohibition Agents at Pittsburgh, Pennsylvania, the District Court ordered the destruction of about two thousand barrels of beer and the sale of the containers. The beer had been seized under the National Prohibition Act (Comp. St. Ann Supp. 1923, Sec. 10138 1/2 et seq.) and stored in warehouses of the Standard Ice & Storage Company and the Allen Storage Company.

Instead of first destroying the beer and then selling the containers in compliance with the manifest purport of the order, Kelton sold the containers when the beer was in them. The purchasers were a lawyer, subsequently tried and convicted but not here on this writ of error, and two others, who, if not wholly fictitious persons, have disappeared. To these nominal purchasers, acting for John Douglas, Jr., and others unknown, Kelton gave orders upon the storage companies for the containers. Each order directed delivery to the named purchaser 'or bearer.' These were promptly presented by unknown persons and immediately deliveries of the containers with beer still in them were begun at the warehouse of the Standard Ice & Storage Company and later attempted, but frustrated, at the warehouse of the Allen Storage Company. Douglas owned the trucks on which the beer was loaded and carried away, his men were in charge of the transfer and he himself, being present from time to time, participated in the arrangements for the release of the filled containers.

It was represented that the beer, loaded at the Standard Ice & Storage Company, was being conveyed to the property of Douglas, known as the Duquesne Market, to be dumped, when, in fact, (though a small quantity was carried there and destroyed,) the most of it was diverted in transit and sold. When a like attempt was made to get the filled containers from the warehouse of the Allen Storage Company, the officers or employes of that concern refused to honor Kelton's orders and let the containers filled with beer go out unless he should change the orders and make them call for the delivery of the containers 'with contents.' Kelton refused to make the change and, in consequence, this beer was destroyed at the place of storage.

The District Attorney, by information, instituted these proceedings under Revised Statutes, Sec. 725, Judicial Code, Sec. 268 (Comp. Stat. Sec. 1245), charging the defendants with contempt of court in a willful violation of its order. After trial, conducted as a purely criminal proceeding, the court found all defendants who were tried guilty. Four of them sued out this writ of error. This, we think, is a sufficient statement of the case, as averred and proved, in so far as it relates to Kelton and Douglas. We shall deal with Zimmerman and Dorne later. A recital of the whole story in detail is unnecessary and would perhaps be improper in view of the fact that of the persons involved at least two have not been apprehended and one, though tried and convicted, has not been sentenced.

Douglas vigorously attacked the jurisdiction of the court to entertain this proceeding in contempt on the ground that (as the information in part charges 'an unlawful combination and intention to violate (the) order of the court') the charge is, in effect, one of conspiracy, a crime defined by and triable only by jury under section 37 of the Criminal Code (Comp. St. Sec. 10201). We are not impressed with this contention. While the information does charge 'an unlawful combination' to disobey the order of the court-- a charge amply sustained by what followed-- it also charges actual disobedience of the order. If the parties had combined to violate the court's order and had done nothing in furtherance of the combination, they would not thereby have interposed an obstacle to the administration of justice and, accordingly, they would not have been guilty of contempt. But they did the thing they combined to do and, from the very nature of the scheme, combination preceded action. In its contempt proceeding the court was concerned with the objective offense, for by this offense rather than by the mental purpose to carry it out the order of the court was violated. That the court had power thus to vindicate its order cannot be open to dispute. The power of a court to make an order carries with it the equal power to punish for disobedience of that order, and the inquiry as to the question of disobedience has been, from time immemorial, the special function of the court. In re Debs, 158 U.S. 564, 594, 15 Sup.Ct. 900, 39 L.Ed. 1092. In the case of Ex parte Robinson, 86 U.S. (19 Wall.) 505, 510, (22 L.Ed. 205) the Supreme Court court said:

'The power to punish for contempts is inherent in all courts; its existence is essential to the preservation of order in judicial proceedings, and to the enforcement of the judgments, orders, and writs of the courts, and consequently to the due administration of justice. The moment the courts of the United States were called into existence and invested with jurisdiction over any subject, they became possessed of this power.'

Moreover, the power of courts to punish for contempts has been conferred and defined by the Act of Congress under which this proceeding was instituted (supra), and this power by the terms of the statute extends to--

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