HILLMON V. MUTUAL LIFE INS. CO.
an action against the railroad company for the injuries received by his wife through its negligence, and recovered a judgment for $500 and costs. On October 30, 1893, the Farmers' Loan & Trust Company, appellant herein, instituted foreclosure proceedings against the Northern Pacific Railroad Company, and receivers were appointed to take possession of, manage, and operate the property of said railroad company. L. W. Nestelle intervened in said foreclosure proceedings, and on April 1, 1896, the circuit court made an order directing the receiver to pay the judgment obtained by Nestelle against the railroad company, with interest and costs. This appeal is taken from that order. The judgment in favor of Nestelle was obtained prior to the appointment of the receiver. Upon the principles announced in Farmers' Loan & Trust Co. v. Northern Pac. R. Co. (No. 319) 79 Fed. 227, and the authorities there cited, the order of the circuit court is hereby reversed, with costs in favor of the appellant.
HILLMON v. MUTUAL LIFE INS. CO. SAME v. NEW YORK LIFE INS. CO. SAME v. CONNECTICUT MUT. LIFE INS. CO. (Circuit Court, Kansas, First Division. April 12, 1897.) Nos. 3,147, 3,148, 3,149.
CONTEMPT-OBSTRUCTION OF JUSTICE.
The writing of a letter by a state superintendent of insurance to each of several insurance companies, refusing to issue a license to do business on the ground that the company bad not acted fairly in refusing to pay a certain death loss, and in the litigation of same then pending in a federai court, cannot be summarily punished by that court as contempt, not being done in the presence of the court, or so near thereto as to obstruct the administration of justice.
The three insurance companies, defendants in the cases of Sallie E. Hillmon, plaintiff, pending in this court, have filed a complaint:
That Webb McNall, the superintendent of insurance of the state of Kansas, Is guilty of contempt of this court, In this: That he is unlawfully impeding and obstructing, and endeavoring to impede and obstruct, the due administration of justice in the trial of said actions; that said McNall, as superintendent of insurance, did on or about the 3d day of March, 1897, send to each of said insurance companies a letter containing the following statement: "I am satisfied that your company has not dealt fairly with the plaintiff, Mrs. Sallie E. Hillmon, in refusing to pay the death loss, and in the litigation of the same, pertaining to her deceased husband. Hence thlEi department refuses to issue · · · a license to do business in this state for the ensuing year." The defendants further allege: That the arbitrary action o·f said superintendent of insurance is intended to operate as a pressure upon them to' compel them to forego their rights as suitors in this court; to prevent them from litigating the claims which they have been defending for nearly 17 years; will operate to drive them out from the protection of this court, and compel them to pay an unlawful claim, based on murder. That the action of said McNall was done knowingly and willfully for the puvpose of vexing, injuring, and harassing petitioners; for 1Jhe purpose, object, and intent of throwing every obstacle possible in the way of their defense; of intimidating and driving them out of this court; of obstructing and impeding them in the assertion of, their rights to a trial by jury, and to a fair hearing; to compel them, by threats and force, to abandon
their defense; and to make them pay the said Hillmon cktlms without regard to their merits. That said action of said McNall was procured to be done by and through, and at the special instance and request of, the attorneys for said Sallie E. Hillmon. That the acts done and performed by said McNall at the request of said attorneys obstmct and Impede the administration of justice in this court, place petitioners under great and overwhelming duress, and are an attempt on the part of said plaintiff and her attorneys to compel petitioners to pay a false, fraudulent, and fictitious claim; to compel them to surrender the right to defend their interest, and to protect their policy holders in the courts of justice. Upon this petition an order to show cause was issued and served upon said Webb McNall. Thereupon he entered a special appearance, and challenges the jurisdiction of the court to proceed summarily against him for contempt under the allegations of said petition, and moves the court to dismiss the proceedings and discharge and vacate the order to sho,w cause heretofore Issued.
Geo. J. Barker, J. W. Green, E. F. Ware, and W. R. Smith, for petitioners.. L. C; Boyle and David Martin, for respondent. FOSTER, District Judge (after stating the facts). This special appearance and plea of respondent practically admits the truth of the allegations in the petition, and the question presented for de· termination is whether such facts make a case for summary pro· ceedings against the respondent for contempt of this court. There. are two sections of the Revised Statutes which have a bearing upon the question at issue. The first is section 725, which reads as follows:
"Sec. 725. The said courts shall have power to impose and administer all necessary oaths, and to punish, by fine or Imprisonment, at the discretion of the court, contempts of their authority: provided, that such power to punish contempts shall not be constl11ed 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 mLsbehavior of any of the officers of said courts in their official transactions, and the disobedience or resistance by any such officer, or by any party, witness, or other person, to any lawful writ, process, order, rule, decree or command of the said courts."
Section 5399 of the crimes act reads as follows:
"Sec. 5399. Every person who cormptly, or by threats or force, endeavors to influence, intimidate, or impede any witness, or officer in any court of the United States, in the discharge of his duty, or corruptly, or by threats or force, obstructs or impedes, or endeavors to obstruct or impede the due administration of justice therein, shall be punished by a fine of not more than five hundred dollars, or by imprisonment not more than three months or both."
That the power of the courts to punish summarily for contempt is limited to misbehavior of any person in their presence, or so near thereto as to obstruct the administration of justice, is apparent from the terJ;lls of section 725, and the various decisions made thereunder. Savin, Petitioner, 131 U. S. 267, 9 Sup. Ot. 699; Ex parte Robinson, 19 Wall. 505; State v. Frew, 49 Am. Rep. 264; Ex parte Terry, 128 U. S. 289, 9 Sup. at. 77; Cooley, T'orts, 424; Kirk v. Manufacturing Co., 26 Fed. 501-509; Myers v. State, 46 Ohio St. 473, 22 N. E. 43; Ex parte Buskirk, 18 C. C. A. 410, 72 Fed. 14. And this rule applies when the act comes under either section of the statute. The act of the respondent in refusing to allow the defendant insurance companies to continue doing business in the
IN RE: IASIGI.
state for the reasons given in his letter cannot be justified on any principle of law or justice, or on any discretionary power vested in him as superintendent of insurance. The insurance companies, in defending these suits of Mrs. Hillmon, are doing what the law permits them to do; and it is for the court having jurisdiction to determine whether they have "dealt fairly with the plaintiff, Mrs. Sallie E. Hillmon, in refusing to pay the death loss, and in the litigation of the same, pertaining to her deceased husband." Indeed, that is the very issue to be tried by the court, and it is an unwarranted assumption of authority for respondent to arrogate to himself the summary determination of these questions; and any attempt, by threats or intimidation or duress, on the part of the respondent, to coerce or deter the companies from making their defense in court, tends to obstruct and impede the due administration of justice, and is a proper matter to be presented to the grand jury. It would, however, be a strained construction to hold that the act was done in the presence of the court, or so near thereto as to obstruct the administration of justice. 131 U. S. 267, 9 Sup. Ct. 699; 19 Wall. 505; In re Brule, 71 Fed. 946; Sharon v. Hill, 24 Fed. 726. The order to show cause must be dismissed.
In re IASIGI.
(District Court, S. D. New York.
March 10. 1897.)
HABEAS CORPUS-STATE EXTRADITION-PROCEEDIKGS AGAINST CONSULS LIMINARY PROCEEDINGS BEFORE STATE MAGISTHATES LAWFUL.
The Turkish consul I., being charged with embezzlement in Massachusetts, was committed In New York by a city magistrate for 30 days, to await requisition from the governor of Massachusetts, in pursuance of the New York statute; on habeas corpus, held, that even though criminal offenses by consuls may still be exclusively triable in the federal courts under sections 563 and 711 of the Revised Statutes, the exclusion of state authority by section 711 Is llmited to the exclusion of state courts, and is not applicable to preliminary proceedings in extradition, or to a commitment by magistrates not acting as a court; (2) that the peculiar circumstances attending the repeal of paragraph 8 of section 711 as well as the language of paragraph 8 itself, apparently confined to civil suits, prevents any extension of that repeal by implication.
Coudert Bros., F. R. Coudert, C. F. Adams, and David Keane, for petitioner. W. M. H. Olcott, Dist. Atty. (John D. Lindsay, of counsel), and Stickney, Spencer & Ordway, opposed. BROv\'"N, District Judge. This is a proceeding by habeas corpus to procure the release of the prisoner, the Turkish consul general at Boston, from custody, upon a commitment made by a city magis· trate on a charge of embezzlement in Massachusetts in violation of the law of that state, but not in violation of any statute of the United States. The commitment was in pursuance of a law of the state of New York, authorizing such a commitment for 30 days to await any requisition from the governor of Massachusetts.
79 FEDERAL REPORTER.
The petition avers that the accused is the consul general of the sultan of Turkey, at Boston, duly recognized as such by the govern· ment of the United States; that the embezzlement is charged to have occurred on July 1, 1892; that he was arrested while on a visit here, where access was impossible to his books and papers to vindicate himself; and that no indictment has been found against him; and it is contended that the proceedings before the city magistrate were without authority or jurisdiction, because of the petitioner's consular office. The amended return to the writ shows that the petitioner isa native-born citizen of Massachusetts. A consul is not entitled, by virtue of his office as consul merely, to the immunities of a foreign minister. On the contrary, according to the rule of international law, he is subject civilly and criminally, like other residents, to the tribunals of the country in which he resides. 1 Kent, Comm. *44; Wheat. Int. Law (Lawrence's Ed.) 423; The Anne, 3 Wheat. 435; Gittings v. Crawford, Taney, 1, Fed. Cas. No. 5,465; Coppell v. Hall, 7 Wall. 542, 553; In re Baiz, 135 U. S. 424, 10 Sup. Ct. 854; Hollander v. Baiz, 41 Fed. 732. Under our dual judicial system, state and federal, in the absence of any special provision of law, the petitioner would, therefore, be subject to arrest and prosecution in the local tribunals in the same manner as other persons; so that the question presented is not one of immunity from punishment, but only as to the proper mode of proceed. ing, and whether his commitment and detention by a city magistrate under a state law for rendition to Massachusetts, where alone the offense can be tried, are unlawful. The provisions of the constitution, and the acts of congress thereunder, as respects public ministers and consuls, create a limited class of cases which are sui generis. By the second section of the third article of the constitution the judicial power of the United States is extended to "all cases affecting ambassadors, other public ministers, and consuls"; and as to this special class of cases the constitution in the same section further declares that "the supreme court shall have jurisdiction." Thus all cases affecting consuls, whether civil or criminal, and whether arising under acts of congress, or under the common law or state statutes, are made cognizable by the supreme court, and thus "cognizable under the authority of the United States," without any further action by congress. U. S. v. Hudson, 7 Cranch, 32, 33. Under the general grant of judicial power, congress, however, further provided by the judiciary act of 1789 (1 Stat. 73) that the supreme court should have "original but not exclusive jurisdiction of all suits in which a consul or vice-consul shall be a party" (section 13); that the district courts "shall have, exclusive of the courts of the several states, cognizance of all crimes and offenses that shall be cognizable under the authority of the United States, where the pun· ishment should not exceed s,ix months' imprisonment," etc.; "and shall also have jurisdiction, exclusive of the courts of the several states, of all suits against COnsuls and vice-consuls, except for offenses above the description aforesaid (section 9); and that the circuit courts shall have eXClusive cognizance of all crimes and offenses cognizable under the authority of the United States (except where otherwise
IN RE IASIGI.
provided), and concurrent jurisdiction with the district courts of the crimes and offenses cognizable therein." Under these provisions it remained the accepted law until 1875, that the federal courts had exclusive jurisdiction of offenses by consuls, whether at common law or under state or United States statutes. The ordinary rule that the United States could not punish common law or state offenses, did not apply. U. S. v. Ravara, 2 Dall. 297; Com. v. Kosloff, 5 Sergo & R. 545; U. S. V. Ortega, 11 Wheat. 472,473, note. And Tennessee V. D9,vis, 100 U. S. 257, and Virginia v. Paul, 148 U. S. 107, 13 Sup. Ct. 536, were decided on the same principle. The provisions of the judiciary act were carried into the United States Revised Statutes (enacted June 22, 1874) without any sub· stantial change, but under a different arrangement. See section 563, pars. 1, 17; section 629, par. 20; section 681; section 711, pars. 1, 8. By this latter paragraph (8) the jurisdiction of the state courts was excluded in all "suits or proceedings" against consuls. The word "proceedings" in that paragraph was new; while the word "offenses," which was in the exception in section 9 of the judiciary act, was omit· ted in paragraph 8 of section 711. By the act of February 18, 1875 (18 Stat. c. 80), the eighth paragraph of section 711 was stricken out. The provisions of sections 563 and 629 conferring jurisdiction on the federal courts in all cases against consuls, both of crimes and of suits, were left untouched; and so was the exclusive jurisdiction of crimes and offenses under the first paragraph of section 711. It is contended that by the repeal of the eighth paragraph of section 711, referring only to "suits or proceedings" against consuls, the jurisdiction of the state courts is opened to the prosecution of consular crimes and offenses against the state laws; whereas it is urged in behalf of the petitioner that this repeal gives no such jurisdiction to the state courts, but leaves consular offenses cognizable as before in the federal courts alone, both by implication, from the nature of the consular relation, which involves the United States with foreign powers, and also by force of paragraph 1 0If section 711 which gives the federal courts exclusive jurisdiction over "all crimes and offenses cognizable under the authority of the United States." See Miller, Lect. Const. pp. 325, 326; Cooley, Lect. Const. p. 53; U. S. v. Ravara, supra; per Story, J., in U. S. V. Coolidge, 1 Gall. 488, Fed. Gas. No. 14,857; per Tilghman, C. J., in Com. v. Kosloff, 5 Sergo & R. 585. As respects any actual intention of congress, the repeal of paragraph 8 of section 711, by the act of 1875, affords no light. The explanation of that repeal is difficult, if not impossible. The act is entitled "An act to correct errors and supply omissions" in the Revised Statutes of the United States. It embraces over 70 different subjects; and the first of the act declares tha t the amendments therein made are made "for the purpose of correcting errors and supplying omissions" in the Revised Statutes "so as to make the' same truly express" the laws in force on December 1, 1873. There is no doubt that on December 1, 1873, the jurisdic79F.-48
tion of the federal courts over consular offenses was exclusive. In both houses of congress when the bill was presented, as appears from the Congressional Record, members were induced to withdraw proposed amendments on the positive assurance that this act contained no new legislation and was solely for the purposes above expressed. So far as concerns crimes and offenses, it may have been considered that the first paragraph of section 711 included all offenses committed by consuls; and that the eighth paragraph had no' reference to "offenses," as it covered only "suits or proceedings." But no such explanation is possible as regards civil suits against consuls, which were certainly embraced in paragraph 8 of section 711, and nowhere else; and that paragraph probably referred solely to civil suits. But however it came about, the act of 1875 was passed, and paragraph 8 of the Revised Statutes stands repealed. So that, as stated by Mr. Justice Harlan in Bors v. Preston, 111 U. S. 261, 4 Sup. Ct. 407, there is now no statutory provision, which, in terms, makes the jurisdiction of the federal courts exclusive in suits (i. e. civil suits) against consuls. But the declared purpose of the act, and the circumstances of its passage, deprive the repeal of paragraph 8 of any effect by implication, beyond the necessary meaning of the repeal itself. Refrigerating Co. v. Sulzberger, 157 U. S. 1, 39, 15 Sup. Ct. 508. 1.'here is a manifest propriety, amounting sometimes to a practical necessity in order to avoid international complications, that the prosecution, punishment or pardon of consuls which would necessarily materially affect their personal attention to their consular duties, should be within the control of the federal courts and of the federal government to which the consuls are accredited and which alone is responsible to foreign powers for the treatment of their representatives. While imnrisonment for debt continued, the same considerations, though in a less degree, applied to civil suits. But since imprisonment fo-r debt has been abolished, the grounds for exclusive federal jurisdiction in civil suits against consuls exist in but small degree, if at all; while in all criminal cases, all the original considerations of policy and propriety remain unchanged. I do not think it, however, necessary or appropriate at this time to pass upon the question whether the jurisdiction of the federal courts over consular offenses is now concurrent with the state, courts, or exclusive of the state courts, either by implication, or under paragraph 1 of section 711. The only question needful for me to determine is whether the petitioner is unlawfully held in custody. The offense with which he was charged is an offense against the state of Massachusetts. He was committed by a committing magistrate under section 829 of the -Criminal Code of New York; which undoubtedly covers the case in general terms, making no reference to the official position of the accused. As a consul is amenable to the local law, his arrest and detention are, therefore, lawful, unless they are prohibited by implication or by section 711 of the Revised Statutes of the United States. But that section, even giving to its terms the broadest effect, goes no further than to exclude "the jurisdiction of state courts." This refers to proceed,
ings which are properly in court, or form some part of the action of a court. It does not extend to proceedings out of court. It does not forbid the exercise of the police power of the state, nor the arrest of a consular officer by a policeman when committing a crime, nor his consequent detention for surrender to the proper tribunal for punishment. And so the commitment of a consular offender by a magistrate, merely for the purpose of transmitting him to the state where the crime was committed, and where alone he can be tried, is not a proceeding in court or by any court, (Robertson v. Baldwin [Jan. 25, 1897] 17 Sup. Ct. 326,) and therefore not prohibited by section 711. And so whatever implications in favor of exclusive federal jurisdiction in consular cases may be claimed, they are in no way incompatible with a preliminary arrest by a state magistrate for removal to the proper state for trial in whichever tribunal is appropriate. The object of any such exclusive jurisdiction in the federal courts, if it still exists in fact, is evidently quite foreign to such °a preliminary proceeding as this, the purpose of which is the transmission of offenders to the state where the offense is committed, to be there brought to trial in the appropriate court, whether state or federal. All questions under the United States statutes as to the proper tribunal for a trial of the cause can be more appropriately heard and determined there. This course seems the more proper in a case like the present, inasmuch as section 1014 of the Revised Statutes, the only one under which removal could be had through federal proceedings, is limited to cases of "crimes or offenses against the United States"; and this is not such an offense. Either, therefore, the petitioner must be amenable to such proceedings as the present, or else he cannot be arrested or sent back at all. As I cannot find that the arrest . and detention of the accused under the law of this state, for the purposes specified, are unlawful, the application must be denied.
In re IASIGI. (DistrIct Court, S. D. New York.
Marcb 16, 1897.)
A district judge who has denied a writ of habeas corpus to release 8 foreign consul Imprisoned under state authority has no power, under Rev. St. § 765, and Sup. Ct. Rule 34 (6 Sup. Ii!.) to admit the prisoner to bail pending an appool from the order denying the writ.
The court heretofore denied an application for a writ of habeas corpus to release the petitioner, Joseph A. Iasigi, Turkish consal general at Boston, from imprisonment under an order of commitment by a magistrate in interstate extradition proceedings. The petitioner, having taken an appeal from the order denying the writ, has now applied to be admitted to bail pending the appeal. David Keane, for petitioner. Albert Stickney and John D. Lindsay, opposed.