FEDERAL'· BEPOOTlllR ,vol.
43.
Lake Superior & Puget Sound Land Company, 6rdig any act which would entry fraudulept; authorize the by any proceedings to set aside his nor can the court say that he committed a fraud on the pre-emption law. Oanfield or his grantee had no notice of the ca!lcellation, and no opportun.ity to contest the right of the commissioner of the land-office to do so; and,.if the power could have been legally exercised. it is null and void as to them. The complainal)t could not change 'his right as lessee to that of pre-emptor, under 'the circ'umstal)ces. He was not the first settler on the land, under the pre-emption laws of the United States. Neither Canfield nor the I:.ake Superior & Puget Sound Land Company are prejudiced by the reany other action of the land deturn of the land scrip to partment, subsequent to the rights>acquired under the deed irom Tibbetts and wile to Canfield. Decree will be entered dismissing the bill.
In 1"6 1.
MASON.
(Dtstrict Court, D. Minnesota. September 8, 1890. UNITED -STATES ComnssIONER....,DISOllEDTENOE
a
. A L'Ommissioner of the oircuit oourtibf the United States has no power in a crimwho refuses to obey a subpmna, and inal proceeding before him to compel him to answer then and there for a contempt. The power to- punish for contempt is the highest exercise of judicial power, and is not an inoident. to the mere exeroille. of judicial functions; and such power cannot be upheld upon inferences and implications, but must be expressly conferred bv law. . -
01"
SUBP<ENA-CONTlWP'l'.
SAME.
At Law. On petition C07j)U8. II. D. Munn ane1 W. Lawler, for petitioner. J. M. Shaw, for respondent. NELSON, On August 28, .1890, a petition was presented to me signed by 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 preten,ded warrant. or .order, issued by R, R. Odell, as United States circuit court commissioner, within and for the district of Minnesota, directing the said as marshal, to arrest the petitioner for contempt in not obeyingan.811eged summons of said commissioner, which pretEmded warrant, as the petitioner is advised, issued without allthority of law. A writ. of habeas CorpU8 was ordered and issued, and the marshal made the following return:
J:
"United States of America, Dist1'ict of Minnesota-ss:: ." I hereby ct'rtify and return that in obedience to the annexed writ. I .herewith produce the therein named John H. Mason, and have him now before
·
IN RJ!l MASON. ,
511
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 oneR. 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. Marshal." A copy of the warrant attached to the return is as follows: "U. S. OF AMERICA, DISTRICT OF MINNESOTA, CITY OF MINNEA;POLIS. "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 forsaid district, at his office, No. 1121 Northwestern Guaranty LoaD BUilding, in the city of Minneapolis, state of Minnesota, then and thereto answer for a 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. U. ODELL, "Commissioner of the Circuit Court of the United States for the Distridt of Minnesota. ,. ' The petitioner in traverse of the return of the marshal denied that he has committed any contempt as aud 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 The petitionand return of the marshal, with the aC:companying papers, not giving sufficient information of the proceedings pefore the upon which he acted in issuing his and causing the arrest of .the petitioner to be brought before him, then and there to answer fora conteInpt 'by him committed in not attending before him, a writ of Ceriiorariwas .issued for a complete transcript, which has produced and filed. In the report of the commissioner, a copy .of the summons or subpmna attached, which it is alleged in the warrant the petitioner disobeyell. It is in the following words: "UNITJl:D STATES OF AMERICA. DlSTRICT OF MJNNESOTA--8S. Presidtmt of the UnUedStates of America to th8 Marl/hal of the District .of Greetin.q: . "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 Sta'tes for the district of Minnesota aforesaid, at my ollice.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 fore me wherein the United States is complainant and William Pulforda 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.
is
"Com!Ilissioner of the Circuit Court of the United States for the District of Mmnesota. " ,
,
":a. n.
512 Indorsed:
FEDERAL REPORTER,
vol. 43.
"1 received this writ ...... '" and served the same by copy as follows: Personally ou J. H. Mason at 10 o'clock A. M., on the 26th day of August, J. C. DONAHOWER, U. S. Marshal. 1890. "Per W. S. DAGGET'r, 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 deter.mination 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 subprena to appear as a witness and compel him to answer then and there fora 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 Commi!:sioner Odell, and the persons who had been arrested appeared; and. according to the transcript of the proceedit1gS 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 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 subprena 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 subprena. 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 bad until September 5th upon an affidavit which, among other things, stated that two persons, naming them, were material witnesses for the government in this proc{\eding, 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 stibprenaed
IN RE MASON.
513
as a witness. The witness not appearing, the marshal was ordered to bring him into court on adjourned day thereof; and cause was arljaurned, 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 far holding' the petitioner. An adjournment was had until August 28th, at 10 A. M. On this adjourned day, at 2:30 P. M., the government, through the district attorney, moved for a continuance for 10 days, which the commissioner denied; and the district attorney then requested that he be allowed to withdraw the complaints, and that the prisoners be discharged. The commissioner informed the district attorney that this could not be done; whereupon he withdrew, and the commissioner adjourned until the 29th, and a new subprena was issued for J. H. Mason. The service of this writ of habeas COTpU8 was reported by the marshal at that day , through a deputy, to the commissioner. On the 29th, the second sUbpcena for Mason, issued August 28th, was returned, served, and the commissioner caused the marshal to call John H. Mason, who did not answer. Adjournments were had from day to day, for the reason that said witness was not present, up to the time of the service of the certiorari. The method pursued by the commissioner is not the usual one of conducting criminal accusations. The United States district attorney', or an attorney appointed by the government for a special purpose, according to all authorities, is the official representative of the government in criminal prosecutions. I cite only one: Confiscation Cases,7 Wall. 457. His requests within reasonable limits are entitled to consideration. A commiRsioner, as a committing magistrat'e, should never refuse a request by the government for a reasonable time to collect and procure proofs for the purpose of inquiring whether there is a probable cause of an offense against the laws, and particularly so when the proceeding under the state law for the arrest and commitment of offenders gives the state a right to an adjournment on proper showing. And it can seldom happen that a commissioner will feel bound to investigate the charges in case the district attorney declines to prosecute. Of course, when a crim·' inal prosecution has been instituted before a commissioner, and the accused persons have been arrested, and the time fixed for the examination, the district attorney has no authority to dismiss 'the proceedings, and an unwillingness of the government representative to proceed will not preclude the commissioner from investigating charges brought before him properly authenticated; but it has been found by experience that it is more conducive to the orderly administration of justice, for the protection of the citizen, and the complete vindication of the laws in discovering and punishing offenders, to let the government representative, who is appointed for that purpose, and upon whom the duty is imposed of obtailling the proofs, inquire whether there is probable cause under the evidence collected of any oflense against the laws, and conduct an examination, if necessary. The report of the commissioner shows that the government representative declined to act in the prosecution before the v .431<'. no. 8-3a
43. prellent form; apd a serious question whether the ewls of justice demand an examination whep, the law officers .of under oath, that important testimony cannot be 9btained. What purpose ",ould be subserved by such a course of If the on an examination is insufficient to hold. accused party, or no evidence is produced, he must be discharged; but s\1ch is finality to inve!3tigation for the saJ;lle offllnse, and it may well be doubted whether the watchful solicitude of the)aw over the personallibertyandsepurity of the citizen necessarily imposeS on the commissioner the duty ofil,l,vestigating alleged charges on evidence regarded by the government rflpresentative as insufficient. The government shoulq be held to reasonable diligence in procuring and producing P1'(),oJs, and if no proofsartlpresented the accused should be discharged; but it would seem most uqusual, if not indiscreet, for a commiesioner to rtlfuse go,yernment a reasonable opportunity to collect the,tel?timony. In thE! c'ase of U. S.v., .Worms, 4 Blatcbf. 332, the defen:dQ.pts,. ona prelimipary warrant. for examination, were committed fQr an: unlimited time. They were)mprisoned some two withoU,t any s.teps being taken for their The court on an application for their discharge decided that the adjournment should be for a time certain, and thllrt the commitm,ept WflS erroneous,but that, where is shown on tb;epart of thegpv:ernrnent for further delay to cure testimony, great,diligence .be required,in its Procurement, alld,in case ·of neglec,t, commiS$iol1er should di.'lCharge the accused and while. the c,ourt considerep the imprisonment eXQeptionable and irregular. it refraiI;led even from discharging the parties on the goverm:qeqt to a hearing of the case. The qli$sloner, however, duty required the, continuance, o(,tQeE/xaminatioll" on his own motion to suppamll- witnesses in behll-lfof the gQvermpent, andto.arr,est for contempt lit qisobedience ofbis, summons. I attentively t() the very ablEl .and ingenious argument oJ Judge Shaw, in favor of sustainil;ig the power of the commissioner to arrest and pu,nish for contemptj and if he is correct in the section 1014, Rev.St.U. S., that all the laws of the construction state. of Minnl3sqta give justices of, the peace special powers, ll-mong which is ,the toP.J.tpisl;J. ,for q<>nte1l,lptin the examination a,rl;l .conferred by upon commissioners by: ,that of section.,tlwlll;1is positionis impregua1;lle. Certainly there is no express to this scction language giving that power. It is necesaary then to and sEle if the ,broadconstl'\1ction contepded (or is correct. By that section, congre/3S . tQ the proceedings for .I,tnd bail,as the case n;laybe, to the mode of. the procedure pl'esqribed by the and as exercised peape when al'l'esting, eXl/.mining, and mittiqg magj.str,ates. It is then by CPWlSjill that the power to an incident to it, examine,.gives,t,he right tosubpama witnesses, the power tpenfol'ce obedience to thesuppo:ma by arrest and punishment ;; , ' f()rcontempt.
IN BE 'MASON.
515
To arresiaQ4:p\lp.ish tora the highest exercise of judicial, power, judges.ofcourtsof record, or superior courts. Where jurisdiction exists there can be no review. A pardon by the executive isihmost caE,es the mode of release.' This power is not, and. never has been" an incident to the, mere exercise of judicial function, and such power callOot ,be upheld upon inferences and implications, but must be expressly cdIifewld by law. A very learned, elaborate, and well-considered discussiqn of this question is lound in the case of In 1;e Kerrigan, 33N.J. Law, '344, which was Rhinehart v. Lance, 43 N. J.Law; 311. "Inthis cuse tbe of the city oflIobo,ken, by law, pos$essed aU powers conferred on justices of the peace in the several counties of the state. The justices of tbe peace had the power by law to arrest, examine, and commit offeoders;and it wllS, claimed tbat, this ajudiciaVunclioll , tbe authority ,to punish for contempt was incideutto its exerciae.· While admittingtbat some authoritative text-writers seem to have supposed this was the law, the learned court pointed out that this assumption was destitute of, authority, and was explained by the indefinite use of the word "commit," (or "imprison," which is the language under section 1014,) and in not discriminating l:>etween its use in the sense of in default of bail to answer before a criminal court on indictment, and the power to commit by way of punishment. The learned judge, speaking for the court, shows that by the common law only .courts of record could punishcontempts, and that the powersof.a justice of the peace at common law were originally ministerial entirely \ consisting chiefly in preserving the peace, receiving complaints, issuing summons or warrant, taking the examination of witnesses, and of the informant, and bailing or· committing the accused, but no English case is found directly asserting the power to punish for contempt. But there is authority of the courts of the United States directly upon this question. In Re Perkins, on habeas corpus before Circuit Court Judge GRESHAM, tbe particular 'question raised here was decided. Judge GRESHAM said: "It is a stretch of languagt' to say that the punishment of a witnessfqr contempt, and by a commissioner, is a necessary part of the usual motlt' of process agaipst offenders, or essential to the exercise of any power expressly conferred on him by the federal law."
So in Ex Parte Doll, before the late United States JudgeCADwALADER, in 1869, (7 Phila. 595.) Doll bad been arrested on complaint made by an officer of the internal revenue for failing to appear and testifY in reL'ltion to his income. At the examination, before the commissioner, an order was made that "Doll produce his books before the commissioner, or be committed for contempt." On refusal to comply, he was committed. Upon the bearing, the power of the commissioner to arrest and punish for contempt was raised. The judge, in the prisoner for the irregular proceeding of tbe commissioner, inter alia, said that"He very much doubted even the power of congress to invest a commissioner with the authority in a proceeding originally instituted before him to summarily commit a citizen for an alleged contempt. This was an exercise of the
516
FEDERAL BEPOaTER). vol.
judicial power of the United States, which, under the constitution, could not .be intrusted to an officer appointed and hOlding his office in the manner in which these commissioners were appointed and held their offices." In the celebrated case of Kilbourn v. Thompsvn, involving the question of the power ofthe congress to arrest and punish a witness for contempt (103 U. S. 182) in refusing to answer questions before a committee of the house, Justice MILLER, speaking for the court, among other things, said: "The constitution declares that no person shall be deprived of his life, liberty, or property, without due process of law,and it has bee,n repeatedly held by the ,United States supreme court that this means a trial in which the rights of the party shall be decided by a court of justice appointed by law and governed by the rulesof law previously established." I agree with Judge GRESItAM that"We only look to the state of Indiana [in this case Minnesota] to ascertain the mode in which powers expressly conferred on commissioners by the federal statute shall be exercised, * ... * and it is not necessary to the due of the power to arrest; examine" and bail that commissioners should have authority to punish for contempt." , It is stated that the commissioner had the authority to arrest the petitioner fo)' the purpose of taking him before some court having authority to punish for contempt, and that he was about to do this. I can see no distinction between the power to decide that a contempt has been committed, and forthwith arrest the 'person, and the authority to punish. The arrest is for the purpose of punishment. and if the commis!'ioner had no power to punish he could not deprive the petitioner of his liberty, however short the time might be. ,I have given this case such examination and reflection as opportunity has afforded, and have reached the conclusion that the commissioner had no jurisdiction to issue a warrant for the arrest of the petitioner. If .wrong. there is a higher tribunal which can correct the error. The petitioner is discharged.
IN RE CROSS.
517
I'll. re ALIANO. ' In re VARANA. (CireuU Court, S. D. New York. September 8, 1890.) IIOfJGUTrON,.-CoNVICTS-WHO ARB.
An immigrant who has been convicted' in the country from which he came of an , assault with a deadly weapon, and has served the term of imprisonment imposed, is a convict, within the meaning of the act regulating immigration.
At Law.
Tn re
CROSS
et ala
(DIstrlct COllrt, E. D. North Carou.na. June 2, 1890.)
1.
EXTRADITION-oBJECTION TO TRIAL-WHEN TO BE TAKEN.
Where an indicted person, who has escaped to Canada, .and against whpm an extradition warrant has been issued, returns to this country voluntarily, under an agreement that he shall only be tried for the offense for which he has been indicted, and he is thereupon tried and convicted, the o.bjection that; the crime for which he was tried was not an extraditable offense must be raised at the trial in order to be available. An application for the release of such person on habeas corpus, because not tried for an offense, does not raise any question under the constitution, treaties, or laws of the United States.
2. SAME':-HABEAS CORPUS;':"JURJSDICTION 011' FEDERAL CoURT.
8. SAME-FORGERY.
'fhe treaty oflS42, between the United States and Great Britain, which provided for the' extradition of persons charged with forgery, allows the extraditIon from Canada ofa fugitive who is charged with an act which was forgery by the laws of Great Britain in 1842.
At Law. Petition for habeas corpUB. W. B. Hunry, for petitioners. SEYMOUR, J. Charles E. Cross and Samuel C. White file their petition for a writ of habeas corpus. It thereby appears that they are confined in the county, work-house of Wake county under a judgment prOnounced bythe superior court of that county upon an indictment charging them with forgery ·. ' From the original judgment in their case an appeal