United States v. Grossman

Decision Date15 May 1924
Citation1 F.2d 941
PartiesUNITED STATES v. GROSSMAN.
CourtU.S. District Court — Northern District of Illinois

Louis J. Behan and Robert A. Milroy, both of Chicago, Ill., for petitioner.

Before CARPENTER and WILKERSON, District Judges.

CARPENTER, District Judge (after stating the facts as above).

The question before us for decision is whether the President of the United States of America is invested with the power to relieve parties punished for contempt by judges of the federal court. The precise question has never been passed upon by the Supreme Court of the United States, and there is no decision of an inferior federal court which is entitled to present authority. It will be necessary, therefore, to base this opinion upon an interpretation of the Constitution read in the light of the fundamental principles of American constitutional government.

The President derives his pardoning power from article 2, § 2, subd. 1, of the Constitution, which provides: "The President * * * shall have power to grant reprieves and pardons for offenses against the United States, except in cases of impeachment."

The power of the judiciary is defined in article 3, § 1: "The judicial power of the United States shall be vested in one Supreme Court, and in such inferior courts as Congress may from time to time ordain and establish."

To determine whether or not a contempt of court is a public offense, it may be well to look at the background of our institutions, and to emphasize some of the basic canons of construction which necessarily must guide the courts to an intelligent and proper constitutional interpretation. Our Constitution fortunately is still a vital instrument. Simply regarded, it is an exposition of our scheme of government. It gives life, providing only it receives wise and understanding treatment. The courts, through their power of interpretation, can continue its vitality or contribute materially towards its destruction.

"A Constitution, to contain an accurate detail of all the subdivisions of which its great powers will admit, and of all the means by which they may be carried into execution, would partake of the prolixity of a legal code, and could scarcely be embraced by the human mind. It would probably never be understood by the public. Its nature, therefore, requires that only its great outlines should be marked, its important objects designated, and the minor ingredients which compose those objects be deduced from the nature of the objects themselves. That this idea was entertained by the framers of the American Constitution, is not only to be inferred from the nature of the instrument, but from the language. * * * In considering this question, then, we must never forget that it is a constitution we are expounding." Chief Justice Marshall, in McCulloch v. Maryland, 4 Wheat. 316, at page 407 (4 L. Ed. 579).

The same thought was expressed by Mr. Justice Gray in the Legal Tender Case, Juilliard v. Greenman, 110 U. S. 421, at page 439, 4 S. Ct. 122, 125 (28 L. Ed. 204): "A Constitution, establishing a frame of government, declaring fundamental principles, and creating a national sovereignty, and intended to endure for ages and to be adapted to the various crises of human affairs, is not to be interpreted with the strictness of a private contract."

Chief Justice Fuller said, in Pollock v. Farmers' Loan & Trust Company, 157 U. S. 429, 15 S. Ct. 673, 39 L. Ed. 759: "Nevertheless it may be admitted that, although this definition of direct taxes is prima facie correct, and to be applied in the consideration of the question before us, yet that the Constitution may bear a different meaning, and that such different meaning must be recognized. But, in arriving at any conclusion upon this point, we are at liberty to refer to the historical circumstances attending the framing and adoption of the Constitution as well as the entire frame and scheme of the instrument, and the consequences naturally attendant upon the one construction or the other."

Mr. Justice Miller, speaking for the Supreme Court in Kilbourn v. Thompson, 103 U. S. 168, 26 L. Ed. 377, sounded a warning against the danger of encroachment by one department upon another: "In the main, however, that instrument, the model on which are constructed the fundamental laws of the states, has blocked out with singular precision and in bold lines, in its three primary articles, the allotment of power to the executive, the legislative, and the judicial departments of the government. It also remains true, as a general rule, that the powers confided by the Constitution to one of these departments cannot be exercised by another. It may be said that these are truisms which need no repetition here to give them force. But while the experience of almost a century has in general shown a wise and commendable forbearance in each of these branches from encroachments upon the others, it is not to be denied that such attempts have been made, and it is believed not always without success. The increase in the number of states, in their population and wealth, and in the amount of power, if not in its nature to be exercised by the federal government, presents powerful and growing temptations to those to whom that exercise is intrusted, to overstep the just boundaries of their own department, and enter upon the domain of one of the others, or to assume powers not intrusted to either of them."

Mr. Madison, afterwards President of the United States, said: "It is laid down in most of the Constitutions or Bills of Rights in the republics of America; it is to be found in the political writings of the celebrated civilians, and it is everywhere held as essential to the preservation of liberty that the three great departments of government be kept separate and distinct."

With these principles in mind this court now has to decide whether the executive has the power to pardon offenders against judicial authority. Is the judicial power of the government dependent upon the good will of the executive? It is universally agreed that the power to punish for contempt is inherent in every court of justice. The moment a court is created, that court possesses the power to command respect. U. S. v. Hudson, 7 Cranch, 32, 3 L. Ed. 259; Ex parte Wall, 107 U. S. 265, 2 S. Ct. 569, 27 L. Ed. 552; Ex parte Terry, 128 U. S. 289, 9 S. Ct. 77, 32 L. Ed. 405.

In Gompers v. Buck's Stove & Range Co., 221 U. S. 418, at page 450, 31 S. Ct. 492, 551 (55 L. Ed. 797, 34 L. R. A. N. S. 874), the court said: "For, while it is sparingly to be used, yet the power of courts to punish for contempts is a necessary and integral part of the independence of the judiciary, and is absolutely essential to the performance of the duties imposed on them by law. Without it they are mere boards of arbitration, whose judgments and decrees would be only advisory."

Congress may, from time to time under the Constitution, limit the jurisdiction of the inferior courts and regulate their procedure; but as Judge Baker said, in Michaelson v. United States (C. C. A.) 291 Fed. 940, at page 946: "Viewing the inferior courts, and also the Supreme Court as an appellate tribunal, we see that Congress, the agency to exercise the legislative power of the United States, can, as a potter, shape the vessel of jurisdiction, the capacity to receive; but, the vessel having been made, the judicial power of the United States is poured into the vessel, large or small, not by Congress, but by the Constitution."

It did not need an act of Congress to give to the federal courts power to enforce their decrees. "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." Mr. Justice Field, in Ex parte Robinson, 19 Wall. at page 510, 22 L. Ed. 205.

In Arnold v. Commonwealth, 80 Ky. 200, 44 Am. Rep. 480, it was held that the Legislature might restrict the punishment and prescribe the form of procedure, but that it could not destroy the inherent power of a court to punish for contempt. The inquiry as to the power of the President to pardon persons sentenced for contempt of a federal court resolves itself into the question of determining whether or not a contempt falls within the category of "offenses against the United States."

The nature of contempt, as civil or criminal, usually has been the essential factor in deciding whether or not the executive may pardon. Generally stated, the prevailing opinion is that the power to pardon exists in cases of criminal contempt, but not in cases of civil contempt.

The Court of Appeals of the Seventh Circuit has decided in Pino v. United States, 278 Fed. 479, that a judgment of contempt, imposing a fine and imprisonment for a definite term for violation of an injunction granted under National Prohibition Act, tit. 2, § 22 (Comp. St. Ann. Supp. 1923, § 10138½k), restraining the maintenance of a common nuisance, is criminal in its nature and abates upon the death of the defendant. It is unnecessary, therefore, for this court to go further. We must assume that Grossman's contempt was criminal as distinguished from civil.

The historical distinction between civil and criminal contempts may well be considered, in order to gain a better understanding of the exact problem here for decision. When a member of Parliament refused to respond to an order in favor of a private party, his parliamentary privilege protected him against imprisonment until such a time as he should render satisfaction to the other party. Walker v. Earl of Grosvenor, 7 T. R. 171 (1797); Catmur v. Sir Knatchbrill, 7 T. R. 448 (1797). Peers, accordingly, were enabled to flout the authority of the courts. To...

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