St. Paul daily globe. [volume] (Saint Paul, Minn.) 1884-1896, 1890-09-09
WHERE is ODELL?
Judge Nelson Applied the Shears
to His PiniOns.

Commissioner r. R. Odell has no right
TO punish for contempt a witness who
does not come before the court on a
bench warrant issued by him. That is
what Judge Nelson decided yesterday
the famous and long-winded case
concerning his examination of the Min
neapoliS census enumerators charged
with conspiracy in the late census trOub-
les. And so this is an end of the whole
business that for several days past
has caused the United States court room
In the Guaranty building to be crowded
with thrOng of inquiSitive humanity.
In giving his opinion Judge Nelson, of
the United States court, said:
'"Fhe substa ntial and controlling question
presented for determination relates to the
power of a commissioner of the United
States i'll a criminal proceeding before him;
to arrest a citizen who refuses to obey SUBJ
poena to appear as a witness and compel him
to answer then and there for contempti'
Then came several references to the reports
of the proceedings by the commissioner and
the arguments presented by the attorneys.
1.-THE method pursued by the commissioner
resumed the judge, us not the usual one in
conducting criminal accusations. The United
States district attorney, or an attorney ap-
pointed by the government is the official
representative of the government i'll criminal
proceedings. His requests. within reason
able limits, are entitled TO some considera-
ton A commissioner, as committing mag
istrate. should never refuse request by the
government for reasonable time to col
lect and procure proofs for the purpose
of inquiring whether there is probable
cause of an offense against the laws,
and particularly so when the proceedings
under the state law for the arrest and COM
mitment of offenders gives the state right
to an adjournment on proper showing; and
it can seldom happen that q commissioner
will feel bound to investigate the charges in
cases the district attarney declines to prose-
cute. Of course when criminal prosecu-
ton has been instituted before commits
sloner and the accused persons have been ar
rested and the time fixed for the examina-
ton, the district attorney has no authority
to dismiss the proceedings, and an I'M
Willingness of the government to proceed
Will not preclude the commissioner from an
investigation of charges brought before him
properly authenticated, in case his refusal
can control the effect In the exercise of full
discretion in the matter. But it has been
found by experience that it is more con-
ducive to the orderly administration of JUS
tice, for the protection of the citizen and the
complete vindicat1on of the laws. in discov-
ering and Furnishing offenders. to let the gov
eminent representative, who is appointed
for that purpose, and upon whom the duty is
imposed of obtaining the proof, to inquire
whether there is probable cause under the
evidence collected for an offense against the
laws and conduct an eXamination-if nee
essary. The reports of the commissioner
show that the government representative de-
clined to conduct the prosecution in it's pres
ent form. and il be comes a serious question
whether the ends of justice demand an ex-
animation when the lawful officers of the
government declare that important testi-
mony cannot then be obtained. What pur-
pose would be subserved by such course of
proceedings? If the evidence. OH an eXami-
nation is insufficient to hold the accused party
he must be discharged, but such discharge is
not final, and it may we'll be doubted whether
his duties necessarily impose on the COM
y11Scc Of oil
charges or evidence as regarded by the gov
eminent representative as insufficient
The government should have rea.
sonable diligence in procuring and
sented the accused person or persons should
be discharged, and it would seem most I'M
usual and lndiscreet for commissioner 10
refuse the government a reasonable oppor-
tunity to collect the evidence" Then Game came
references to cases in which the jurisdiction
of q commissioner had been thoroughly
tested, after which he again resumed: Il
listened attentively TO the ingenious and
able arguments of Judge Shaw in favor of
sustaining the power of the commissioner to
arrest and punish for contempt and if he is
correct IN the construction of section 1ol4
of the Revised Statutes, that all laws of the
state of Minnesota which give justices of the
peace special powers, among which is the
power 10 punish witnesses for contempt in
the examination Of offenders, are conferred
by Implication upon commissioners by that
section. then this position is impregnable.
Certainly there is no express language Civ
ing that power. 1t is necessary. them to
look to this section and see if the broad con-
struction conteuded for is correct BY that
section undoubtedly congress intended to
assimilate the proceedings for the arrest,
imprisonment and bail, as the case may be,
to the mode of procedure presented by the
laws of the several states and as exercised
by justices of the peace when acting as ar
resting, examining and committing mags-
trates. 1t Is then argued by counsel that the
power to examine gives the right to subpoena
Witnesses AS an incident has it, the power to
enforce all observance of the subpoena by
arrest and punishment for contempt? To ar
rest and punish for contempt is the highest
exercise OF judicial power and belongs TO
Judges of courts of record or superior courts
This power is not and never has been an in
cident to the mere exercise of judicial func-
tion and such power cannot be upheld upon
differences and implications, but must be ex-
pressly conferred
The Dcaconcss Commencement.