New Britain herald., 1924-05-15
Chicago o Bootlegger, Guilty Of Contempt, Ordered Taken Into Custody At Once - Commitment May Fol- low.
Defendant Was Sentenced by Judge Landis and Has Figured Prominently in Daugherty Probe.
By The Associated Press.

By The Associated Press
 Chicago, May i5.-The right of the president of the United States to pardon in a civil contempt case was denied today in an opinion signed by Federal District Judges George A. Carpenter and James A. Wilkerson, in the Phillip Grossman case, which was considered before the Daugherty in- vestigsting committee.
 The opinion held that Grossman should be taken in custody on sem tence of n year in yai for contempt decreed by former Federal Judge K. NJ. Landis. Grossman was sentenced for contempt in prohibition case.
 The two judges gave separate opin- ions but eoncurring in effect.
 The constitution gives the president power 10 pardon "offenses against the United States" only, and there are no ofrenses against the United States. save those declared to be such by declared Judge Carpentier. Contempt cases, therefore, he held 10 be outside that category.
 The president derives his pardon- ing power from article IT, section 2 CD of the constitution, which pro- vides. The president XIX shall have power to grant reprieves and pardons for offenses against the United states, except in cases of im- 
 There IS no federal common law. There are no offenses against the United states. save those declared to be such by congress. The people could counterfeit with lmpunity were fl not for legislation to the contrary. Mrr- der on the nayigable waters Of the United States might be q pastims were it not for congressional sctien."
 opinions Arc Given
 The opinions Of the attorney sener- als Of the United States in isii-ists and 1852 as 10 the presidents power of pardon were declared by Judge 10 have been based upon all erroneous assumption that the president stood in somewhat similar position toward the United States courts as the king of England toward he English courts.
 Tt was well said that the power to tax IS the power 10 destroy. 1t is just ls true that the power 10 pardon for Is the power 10 destroy judi rial authority" said Judge wilkerson. Nor is il permissible to draw an artificial distinction based upon the method which must be employed or he form of the mandate which must be used in dealing with obstructions ,f judicial power. As was stated by Chief Justice White in Toledo News paper company vs r. g.. the test is the character of the act and Is direct tendency 10 prevent and ob- ,trurt the discharge Of judicial duties'
 Judicial authority is destroyed and he function Of the courts as the guardians of the constitution is im- paired in just the same way by an act T defiance Of inc courts prohibition ,s by the refusal 10 perform sn act intil compelled by the courts
 Was Ne,cr in Custody.
 Grossman never had been taken in- O custody when the presidential psr- lon came.
 "To allow such power in the execu- i've is to strike a death blow al the of the judiciary" said udge Carpenter in his opinion.
 "The power 10 punish for contempt ; inherent in. and essential to. the cry existence Of the judiciary. If he president is allowed 10 substituts Iis discretion for that Of the courts n this vital matter. then truly the resident becomes the ultimate source f judicial authority. Such a holding rould be a distortion of that cardinal irincipls of American institutions that he executive. legislative and judicial ranches of government are co-ordin- tr and proudly Independent.
 We are Of ths opinion that under he constitution the executive cannot raw 10 himself all the real judicial lower of the nation by controlling the Inherent end essential attribute of hsf power-the authority 10 punish or disobsdisnce Of the orders of the ourt.
 The motion of the defendant. bss- 1 upon the presidential pardon. to lodify the order of this court 50 ss D eliminate the jsIl sentence is de- jed. and the marshal is ordered to aks the defendant in custody. and sn rder of commitment may issue"
 Judge Carpenter made # clear ths, he question to be determined as rothing to do with the propristy f the presidents pardon" but with is right 10 pardon. Tt is nc snsrer.- .s said. 10 say that the president rould not abuse the power if it were Q extended. The clear constitutional eparation of departments was rot .ased on possibilities
 we believe" he explained. That onte1npt is a genus of open disre- ard for orders Of the court and that rhatever the species and variety, de- lance is involved, and that ia 10 case, n the absence of clearly expressed covers to the executive. can pardon