Acting Commissioner of Pensions.1
(Di8trict Court, E. D. New York. December 28,1888.)
WRITS-SUBPlENA-WITNESS-ATTENDANCE BEFORE PENSION EXAMINER.
. The power of a district court of the United States cannot be invoked to secure,by its subpoona, the attendance of a witness before a special examiner of the pension bureau in the matter of a pension claim.
Application of William McLean, acting commissioner of pensions, for an order upon a witness.
BENEDICT, J. On tbe 23d day of November, 1888, there was presented to me.8 request in the following words: ·'DEPARTlIlENT OF THE INTERWR, BUREAU OF PENSIONS. "WASHINGTON, D. C., November 19, 188B. , "Toany Judge or Clerk of the U:nited States having Jurisdiction-Sm: In pU'rsuance of sections 184, 185, 186 of the Hevised Statutes, and the act of July 25, 1882, I have the honor to request that a sUbpmna may issue com-
manding Mr. Patrick Callahan, a draw-bridge tender, foot of Manhattan avenue, !:Jrookyn, ·NewYork, to appear at a time and place named therein, and make twe answers to such written interrogatories and cross-interrogatories as may besnbmitted to him by Mr.;T. W. G.Atkins, a special examiner of this bureau, and be oraIlyexamined arid cross-examined upon the subject of the claim for pension of .John Horton, Navy, No. 10,977. "Very respectfully, WILLIAM E. McLEAN, "Acting Commissioner." of this request haEl raised for decision the question whether the statutes referred to in the request furnish the court authority to issue its process for the purposes mentioned. It will be observed that th,e subpoona is not required for conducting an lrlVestigation into the facts of 8ny case pending in this court, or in any other courL The requestwhich is assumed to be in conformity with the statutes referred to in it TShows that the subprena was desired for the purpose of enabling the bureau of pensions to make an examination into the facts bearing upon a 'certain claim for a pension pending in that bureau. To secure this end, the commissioner of pensions asks this court by its process to compel the persoIl named to appear before a special examiner of the pension b\1reau, and there submit to examination by such examiner touching the claim referred to in the request. For such purpose the aid of this court cannot in my opinion be invoked. The pension bureau is not a court, nor can any officer thereof be vested with judicial functions. The proceeding in aid of which the process of this court is asked is an executive examination, pending in an executive department of the government, not ll. j udioial iilquhy, pending before a court. In cases or controversies pending before the courts of the United States those courts have power to compel the attendance of persons as witnesses, but, in my opinion,
G. Benedict, Esq., of the New York bar.
IN RE TERRY;
congress is not authorized to permit that power to be invoked in aid of an executive examination pending in an executive department. The principles and reasoning set forth in the opinion delivered by the circuit court of the United R·tates at San Francisco, August 29, 1887, in Re Railway Commission, 32 Fed. Rep. 241, for an order upon a witness, appear to me to be applicable in a. case like this, and it is sufficient for me to refer to the opinionof that court in that case for the grounds upon which the present application should be denied. Request denied.
, In re
«(h,1'cuit Oou'l't, No D. Oalijl»'nia. February 1. 1889.)
Goo;o BEHAVIOR. One undergoing imprisonment for contempt is not" a prisoner convicted of an offense against the laws of the United States, " within the meaning of the act of Congress, March 3, 1875. (1 Supp. Rev. St. 184,) which allows to such a prisoner, confined "in any prison or penitentiary of any state or territorY which has no system of commutation for its own prisoners, " a deduction of five days in each' calendar month during which no charge of misconduct has been sustained against him. Besides, the act is not applicable to one confined in a county jail in Cali· fornia, which has a system of commutation for its own prisoners, though that system does not allow deductions for prisoners confined in jail, Nor is such prisoner entitled to the credit under Rev. St. U. S. § 5544, which provides that "in other cases all prisoners now or hereafter confined in the jails or penitentiaries of any state, for offenses against the United States, shall be entitled to the same rule of credits for good behavior applicable to other prisoners in the same jail or penitentiary, "as the California commutation act of March 14. 1881, relates only to state-prisons, and has no application to prisoners in county jails.
" ' :
Even if the California act applied, to prisoners in county jails. one impris· oned for the term of six months would not be entitled to a credit, as it pro· vides that one entitled to credit "shall be allowed from his term. instead and in lieu of the credits heretofore allowed by law, a deduction of two monthS in each of the first two years, " etc., and contains no crlldits for months or fractions of a year. '
Order on w. E. Hale, Sheriff, to Show Cause, On September 3, 1888, D. S. Terry was adjudged guilty of contempt, and to be imprisoned therefor for the term of six months in the Alameda county jail. 36 Fed. Rep. 419. He claimed credits, and the sheriff declared his intention to allow the credits, and discharge the prisoner on January 31, 1889. This coming to the knowledge of the United States attorney, that officer filed, a petition stating the facts, and obtained an order upon the sheriff to show cause why he should not detain the prisThe oner in custody lor the whole term prescribed in the facts as stated in the petition being admitted, the question was whether the defendant was entitled to the credits claimed.
FEDERAL REPORTER, vol. 37.
Garey, U. S. Dist. Atty·
for Sheriff Hale. /, Before :SAWYER, Circuit, Judge, and SABIN, District Judge.
SAWYEi,'J. D. S. Terry havil)g been adjudged guilty of contempt, and to,be imprisoned therefor, for the term of six1U<mths from September 3,1888, now claims that, in consequence of good behavior, he is him to be entitled to certain credits, which, if allowed, discharged from further' imprisonment. He claims credits under the act of congress of March 3, 1875, (1 Supp. Rev. St. 184,) which reads as follows: "All prisoners who have been, or shall hereafter be, convicted of anyoffense against the,)aws of the and confined, in execution of the judgment or sentence upon such conviction, in any prison or penitentiary of any state or territally w;hich ·1)as no system of commutation for its own prisoners, shall have a deduction from their several terms of sentence of five days in each and ev:erycalendl;lr month during which no charge of have been,sustained against eacb sevprally, who shall bedischargooat tbeexpil'ation of bisterm of sentence leas the time so deducted, and a certificateoi' the warden or keeper of such prison penitentiary Of'Bucb deduction shall be entered on tbewarrant of commitment." 'The first arises is, is Mr. Terry,adjudged guilty of contempt of court, a "prisoner convicted of any offense against the laws of the pnited con.fined, in execution of the judgment or sentence ,upon such conviction in any prison orpenitentiary,j of the state, within the meaning of this statute? It is freely conceded that a contempt is a vi()l!l'ti9n of law, ,and is ofa nature, and that the proceedings to ,ptuiish ,for llJ;e not civil proceedings, but ora criminal charae,tel'. ,, But that does not necessarily make a contempt an" offense against the law,S of the UriitedStates," within the meaning of the terms aS'used in the ,statute. A contempt is sui generiB. All courts, independently of statutory provisions, have an inherent power to punish for contempts. f;lu<:h power is a,bsolutely necessary to their existence, and the effective their jurisdiction and. the performance of their functions. I Bouvier defines "offense:" "The doing thAt which a penal law forbids 'toQe done, or omitting what it commanl1s; in this sense it is nearly a more confined sense it may be ,considsynonymous with crime. ered as having the same meaning as a misdemeanor, but it differs from it in this, that it is not indictable, but punishable .byforfeiture,of'apenalty." It is iJ;l the larger sense of a crime, or misdenleanor, defined and expressly made a specific offense by the statute providing a general system of.criminal law, indictable, and to be tried, and a conviction had by ajilry, that the term is used in this statute. All ,offenses against the United States are statutory. And the party entitled to credits:i:s 'one ,convicted of an offense against the laws of the United to say, convicted by a jury upon indictment, ol'lnformaof:' tion, of aIL act that is', expressly made, an offense hy the fense under the general Criminal. Code, or system of criminal law of the state. If this is not the correct view, then no' judgment could be nlD-
dered for a contempt under the cOllstitution without' a trial. and· dOnviction by a jury; Article 3, § 2, of the constittitionpl'ovides that "the trial of all crimes, except in case of impeachment; shall be by jury." , And article 6 of the amendments provides that"In all criminal the accused shall enjoy the right to a speedy and pUhlictrhil, by an impartial jury of the state and district wherein the crimeshall have been committed, which district shall have been previonslyascertained by law; and to be informed of the nature and cause of the tion, to be confrontf'd with the witness against him; to have compulsory pro-' cess for obtaining witnesses in his favor, and to have the assistance of counsel for· his defense." Nobody 'has ever claimed, so far as we are aware. that a party is en· titled to a trial .by jury in a proceeding for contempt. In this case the judgment was rendered summarily by the court upon its own observation of what tQokpJace before itand onts own motion, without any wit-' nesses at all, or· any indictment. information, or written complaint, and without the aid or intervention ofcounsel, and the judgment has been sussupreme court. Some of the acts performed, it is true, tained by constitute specific offenses against the general criminal statutes of the United States for which the prisoner may yet be indicted, tried, convicted, and punished. And indictments are, in fact, pending for those statutory offenses. Should the prisoner be convieted and imprisoned for those offenSes he would undoubtedly be entitled to any credits that might be allowed to parties in his condition, "convicted of an offense against the laws of the United States." A party may be imprisoned for a contempt until he shall perlorm some act required by the court, and imprisonment or a contumacious 'party might extend through yearseven during life. How could any rule of credits be applied to such case? Yet, if the statute covers any contempt, as being an offense, it must cover all contempts. Summary conteu1pt proceedings areabsolutely necessary to enable a court to protect its own dignity, and even preserve its existence; and, to enable it to effectively dischargeitspr'oper functions, the proceeding must be at all times under the contrbl\ of the courts. The proceedings as before stated are sui generis, especially pro-' vided for in separate acts, and are not intended to be included in the ordinary general provisions embraced within the Criminal Code, or system, within which the party is entitled to all the guaranties provided by the constitution. We are of opinion that the party underg<iingimprisoDIllent is not "a prisoner convicted of an offense against the lliws of'the United States," within the meaning of the statute allowing credits for good behavior. ' 2; But if this were an offensEl against the United States withiti the . meaning of the act, although we thitik it is not, the;ereditscouldndt be allowed for thefollowirig reasons. The abt under which the claims to beentitled to five'days'bredit fofeach mo'nth-and 'His the' only act providing for such credits"""'is wholly· inapplicable to,'thisi-ease:: The act itself,' iIi' terms1litnits'itsapplication :fu a "state 'or which has riO systeniofcommtitations for its
Rev. St. p. 184, § 1, (18 St. p. 479.) But the state of California has "sYlltem of commutation for its own prisoners." In U. S. v.Schroeder, 14Blatcpf. 345, the prisoner had been regularly convicted for an ofiEmse and sentenced to be imprisoned for 12 months. After serving his term, less credits claimed under this same act of congress of 1875, he applied to the court for his discharge, and the court, in deciding the case, said: "An examination of the terms of the act of March 3, 1875, shows, that the deduction there provided for can be allowed only to persons confined in a state which has no system of commutation for·its own prisoners. The state of New York has Ii system 'of commutation for its own prisoners, (Laws 1863, c. 415; and Laws 1864, c. 321,) and, therefore, the deduction of five days per month prescribed by the act of 1875, cannot be allowPd. The fact that the state system of commutation does not allow any deduction to prisoners confined. hUaH does not affect the question. There is still a state system of commutatip.n, and the fact of the existence of such a system, takes the case out of the spore of the act of 1875, without regard to the particular provisions of that. ' · ..We full v concur in this construction of the act. It of no other. Olllifo;nia has systemof commutations for its own prisoners. And "the fact of the existence orsuch a system, also, takes the case out of the scope of the act of 1875, without regard to the particular provisions ofthe " sys t e m . , , ., , 3. ',I.'he only other provisioIl of an. act of congress under which credits call b 13 properly clajmed is found in section 5544, Rev. St., and is as follows: caEles, alI prisoners now or hereafter confined in the jails or peni, "In tentiaries of any state for offenses against the United States, shall be entitled to t11e same r,ule of credits for good behavior applicable to other prisoners in the jailor penitentiary. " . "The only of commutations for the state of California is found ip "Anaqt to define, regulate, and govern the state-prison of California" passed in 1880, as amended by the act of March 14, 1881. The provisions of that act relate only to state-prisons, their officers and duties, and tq, therein confined, their government, discipline, rights, etc.' They have no application to county jails, or to prisoners therein confine9-. The system does not include credits for minor offenders ooUfineq. for short periods of, time in county jails or otherwise. The provisiRris, therefore, do not reach this case. ,.4. Again, if the system included prisoners confined in of covering the case now in hand. The provision is that those entitled to credits "shall be allowed from qis term, instead and iulieu of the credits heretofore allowed by law, a deduction, of two montl}a inJElachof the first twoyea,rs, four months in each of .tbenext . two months in aachof the remaining years of said Now, are no credits here at all for months,or fractions ora yE>llr, or ofa l11onth.:orfor days. The shortest term for which any credits are i!l ?ne :year.:Mr. Terry was sentenced·for six months ,only. The is'iJlsulficient t(>entiUe him to an)' credits under the Sttae sys....., . _.
ALEXANDERH,. MALL &: C9. t1., ULliRICB.
tern. For el\ch and all of these reasons, we are fully satisfied that the prisoner is not entitled to any credits whatever, and it is so adjudged. And the sheriff of Alameda county is adjudged and directed to hold the prisoner in confinement for the full term specified in the judgment for contempt, without any deductions or credits.
,DiBtrict Court, No D·. Ohio, W; D. December Term, 1888.)
BABKRUPTCy-DISCHARGE-FRAUD-LIMITATION OF ACTION.
The period of two years, within w:bich a petition vacate the discparge of a bankrupt for fraud must· be filed under Rev. St. U. 'S.§ 5120, begins to rUIl from the date of the discharge, and not from the discovery of the fraud. ,;
In Bankruptcy. The petition was filed by the petitioner, who was a creditor ofand had 11. provable claim against the defendant, a bankrupt, to set aside a discharge granted to him in February, 1879, on the ground that the bankrupt hll.d been guilty of fraud in his application for the benefit of the bankrupt law. The petition was filed in this case on the 27th. of August, A. D. 1888. The defendant filed a demurrer on the ground that the petition to set aside the discharge was notilled within two years from the discharge. It was claimed that the limitation began to run only at the time the frauds were discovered. J. A. ChU8e, for'petitioner. A. Farg-uharsDn, for defendant.
WEI.KER, J. Section 5120 of the Revised Statutes (bankruptlaw) provided an absolute bar, where the petition was not filed within two years from the date of the discharge. The limitation is not in any way controlled by the discovery of the fraud; and the limita.tion provided by law in actions by or against assignees in bankruptcy founded upon frauds, lI.nd providing that the limitation begins to run from the discovering of the fraud does not ,apply in this class of proceedings. The demurrer is therefore sustained, and petition. dismissed, with costs;