Edward Douglass White

“ In England, I believe, the usual course is to proceed in the regular way by indictment. I mention this fact and the later statute only for their bearing upon the meaning of the exception in our law. When it is considered how contrary it is to our practice and ways of thinking for the same person to be accuser and sole judge in a matter which if he be sensitive, may involve strong personal feeling, I should expect the power to be limited by the necessities of the case 'to insure order and decorum in their presence' as it is stated in Ex parte Robinson, 19 Wall. ”

“ The court sustained its authority to so act by an elaborate opinion, which after stating the evidentiary facts-the publications and their environment-drew from them ultimate conclusions of fact and held that from such conclusions it clearly resulted that the publications complained of constituted a contempt within the power of the court to punish because by their terms they manifestly tended to interfere with and obstruct the court in the discharge of its duty in a matter pending before it. ”

“ The provision therefore, conformably to the whole history of the country, not minimizing the constitutional limitations nor restricting or qualifying the powers granted, by necessary implication recognized and sanctioned the existence of the right of self-preservation, that is, the power to restrain acts tending to obstruct and prevent the untrammeled and unprejudiced exercise of the judicial power given by summarily treating such acts as a contempt and punishing accordingly. ”

“ We are of opinion that a motion to dismiss the writ of error must prevail since it is settled that a conviction for a criminal, although summary, contempt is for the purposes of our reviewing power a matter of criminal law not within our jurisdiction on error. ”

“ In January, 1914, creditors of the company filed in the District Court of the United States their bill against the company to enjoin it from obeying the ordinance on the ground that to do so would confiscate the property which they held in the company and would destroy the franchises which the company enjoyed and which, it was asserted, only expired in the following October. On March 24th the creditors filed a supplemental bill making the city a party to the suit and asking preliminary and permanent injunctions against the city. ”

“ Misbehavior means something more than adverse comment or disrespect.
But suppose that an imminent possibility of obstruction is sufficient. Still I think that only immediate and necessary action is contemplated, and that no case for summary proceedings is made out if after the event publications are called to the attention of the judge that might have led to an obstruction although they did not. ”

“ The question is whether he acted within his powers under the statutes of the United States.
The statute in force at the time of the alleged contempts confined the power of courts in cases of this sort to where there had been 'misbehavior of any person in their presence or so near thereto as to obstruct the administration of justice.' Section 268, Jud. Code, Act of March 3, 1911, c. 231, 36 Stat. 1163. Before the trial took place an act was passed giving a trial by jury upon demand of the accused in all but the above-mentioned instances. ”

“ But a judge of the United States is expected to be a man of ordinary firmness of character, and I find it impossible to believe that such a judge could have found in anything that was printed even a tendency to prevent his performing his sw rn duty. I am not considering whether there was a technical contempt at common law but whether what was done falls within the words of an act intended and admitted to limit the power of the courts. ”

“ This view, however, was restricted to the matters embraced by the first count since it was decided that it was irrelevant to consider whether the same view would obtain as to the subject-matters of the second and third counts because it was held that in any event the finding of guilt under the first count was adequate to justify the penalty imposed, thus rendering a consideration of the other two counts unnecessary. 237 Fed. 986, 150 C. C. A. 636. ”