United States v. Craig

• Decision Date: 08 March 1920
• Citation: 266 F. 230
• Parties: UNITED STATES v. CRAIG.
• Court: U.S. District Court — Southern District of New York

266 F. 230

UNITED STATES v. CRAIG.

United States District Court, S.D. New York.

March 8, 1920

Francis G. Caffey, U.S. Atty., and Ben. A. Matthews and David V Cahill, Asst. U.S. Attys., all of New York City.

William P. Burr, Corp. Counsel, of New York City (Edmund L. Mooney William E. C. Mayer, William C. Fitts, Charles T. B. Rowe and Alfred B. Cruikshank, all of New York City, of counsel) for defendant.

MAYER District Judge.

Defendant has demurred to the information charging him with contempt of court and has set forth 28 grounds of demurrer. It will not be necessary to refer in detail to all the contentions urged in support of the demurrer.

The proceeding against defendant is brought under section 268 of the Judicial Code (Comp. St. Sec. 1245), which is in part as follows:

'The said courts (United States courts) shall have power * * * to punish, by fine or imprisonment, at the discretion of the court, contempts of their authority: Provided, that such power to punish for contempts shall not be construed to extend to any cases except the misbehavior of any person in their presence, or so near thereto as to obstruct the administration of justice. * * * '

The contemptuous writing charged is contained in a letter alleged to have been written under date of October 6, 1919, and caused to be delivered to the public service commissioner in response to an invitation to a conference in respect of the transportation situation in the city of New York. Two extracts from the letter will illustrate the difference between free and legally allowable criticism, on the one hand, and statements charged to be contemptuous, on the other.

Referring to refusal of this court to appoint at the time an additional or coreceiver 'acceptable to the board of estimate and apportionment' in equity suits under which certain railroad properties came into the custody of this court, the letter of October 6, 1919, set forth, among other things,

'As you must be aware, it is a very common thing in large receiverships to appoint additional receivers, particularly where there are varied and conflicting interests; and I have never been able to understand why, in a matter of great public concern such as this, Judge Mayer set himself against it.'

Defendant had full right to make the observation supra. The right to criticize the correctness of the decisions of courts and judges has always existed under our form of government, and must continue to exist, not merely as a right possessed by the individual, but as a safeguard to our institutions. Such criticism often invites valuable discussion and deliberation, and not infrequently results in correcting error. But such right must not be confused with 'the misbehavior * * * so near' the presence of the court 'as to obstruct the administration of justice. ' Of this latter conduct the following from the letter of October 6, 1919, is a sufficient illustration:

'Before any such conference can be seriously considered, and as an evidence of good faith on the part of those acting by and under the authority of United States District Judge Mayer, there must be a reversal of the policy for which Judge Mayer is responsible of denying to myself and other members of the board of estimate and apportionment any access to original sources of information concerning the property and affairs of these various public utility corporations holding franchises to operate in the streets of New York.'

It is alleged in the information, inter alia:

'Neither the defendant nor any member or members of the board of estimate and apportionment, nor any other authorized representative of the city of New York, has ever been denied by this court, or by any one acting under its authority, or by either of said receivers, or by the said trustee, or by any authorized representative of either of said receivers or of said trustee, access to any original or other source of information concerning any of the property or affairs of any public utility corporation holding any franchise from, or any franchise to operate over, on, or under any street of, the city of New York. * * *

'1. In said letter it was stated that this court in the said suits and proceeding was responsible for a policy of denying to the defendant and to other members of the board of estimate and apportionment of the city of New York any access to original sources of information concerning the property and affairs of the various public utility corporations in the hands of receivers appointed by this court and holding franchises to operate in the streets of New York; whereas, in truth and in fact, this court never adopted such a policy, but, on the contrary, afforded to the defendant and to all members of the board of estimate and apportionment of the city of New York access to the said original sources of information, and every facility for obtaining information concerning the property and affairs of the said corporation, and expressly directed that the city of New York and its officials should have access to such information, and in truth and in fact at no time since this court assumed jurisdiction of any of said corporations as aforesaid has this court, or any one acting under its authority, ever denied to the defendant, or to any member of the board of estimate and apportionment, or to any authorized representative of the city of New York, or of any of its officials, access to original or to any other sources of information concerning the property or affairs of any of said corporations. * * *

'All of the foregoing statements in said letter, numbered from 1 to 4, inclusive, and each of them, are and were false, and were known by the defendant to be false when made, and were made in reckless disregard of the truth.

'In addition to the statements above enumerated, the defendant by such letter intended to charge, and willfully, knowingly, unlawfully, falsely, and contemptuously therein and thereby did charge, that the court concealed the truth from the public and public officials, and kept hidden facts which, in order to protect the public interests, should have been known to the public and public officials; whereas, in truth and in fact this court did not conceal the truth, or keep any facts hidden, from the public or from any public official, but, on the contrary, prior to the writing of said letter, this court ordered and directed that there should be given to the public and public officials every opportunity to ascertain the truth and every facility which might aid in revealing the truth, and caused the corporation counsel for the city of New York to be served with notice of all proceedings in said suits other than those relating to the ordinary current administration of said receiverships.'

Expressed in simple language, what the information charges is that the part of the letter quoted was knowingly false, and that the court never denied access to original sources of information, but had ordered and directed the contrary course.

Read with the entire context, there is no escape from the conclusion that the letter in this respect charged a court of justice with adopting a policy which denied to public officials access to original sources of information to which such public officials were entitled. On demurrer, the court can look only to the face of the writing, and is not enlightened as to what was in the mind of the defendant, as distinguished from what was expressed by him in writing.

Such a charge is, indeed, grave. If true, the court which sanctions such a course is rightly subject at least to serious criticism. If false, he who is responsible for the utterance has undertaken a serious responsibility in publishing that which, if believed, must bring a court into contempt and distrust, and in any event must create doubt in the minds of the uninformed as to the propriety and right of the court's conduct.

The question, then, is whether such writing, alleged to be knowingly false, constitutes the contempt denounced by section 268 of the Judicial Code. Since the decision in Toledo Newspaper Co. v. United States, 247 U.S. 402, 38 Sup.Ct. 560, 62 L.Ed. 1186, there is no longer any question that it is not necessary that the contempt be committed in the physical presence of the court, nor in the courthouse itself, nor in its corridors. The holding to the contrary in the case of In re Daniels (C.C.) 131 F. 95, was, in effect, overruled by the Toledo Newspaper Co. Case, supra, and there can no longer be any doubt that, if the other elements of contempt exist, the misbehavior, although it did not take place in the physical presence of the court, did occur 'so near thereto' as to subject the defendant to the jurisdiction of this court, under the doctrine of the Toledo Case.

It is contended, however, that defendant in his capacity as comptroller of the city of New York was entitled to what his counsel speak of as 'political privilege,' or, to use the language of their brief:

'The letter of the defendant comptroller * * * was the subject of absolute privilege.'

This point might, on demurrer, be disregarded, for the reasons set forth in the opinion of this court dated December 23, 1919 but, as it...