Evening star., 1941-04-15
Summary Contempt
Cases Restrained
By Supreme Court
Trial Ruled Necessary
Unless Act Occurs in
Tribunol's Proximity
By J. A. FOX.

Federal courts today stood under
new restraints in the inf1iction of
summary punishment for contempt.
In a 5-to-3 decision, which re-
stated the principle of law enacted
10 years ago to curb judicial abuses,
the Supreme Court yesterday said
that judge may impose penalty
for criminal contempt only when
the act alleged to have obstructed
justice occurred within the physi-
cal proximity of the court. Other
wise the ordinary processes of crimi-
nal cases-indictment and trial
must be followed.
The opinion read by Justice Doug
las reversed 1918 ruling by the Su-
preme Court and marked defeat
for the Government. At the Justice
Department it was said that the
most important aspect of the de-
cision apparently lies it its preclud-
ing summary punishment for con-
tempt by publication, except in
cases where a court order is vio-
lated.
Relatively Obscure Case.
A relatively obscure case from
North Carolina was the vehicle for
the decision. r. H. Nye and L. C.
Mayors of Lumberton had been ad-
judged guilty of contempt in Fed
eral Court for the Middle District
of North Carolina, for an alleged
attempt to persuade w. H. Elmore
of Conway. N. c., to drop $50, 900
damage suit against the B. C. Rem
edy Co., following the death of Mr..
Elmore's son, reputedly from the
use of proprietary medicine. The
plaintiff was said to have been pre-
vailed upon to write letter to the
judge before whom the suit was
pending, asking for dismissal. He
later repudiated the action.
Mr.. Nye was fined $500 and Mr..
Mayors $3.50, and the penalties were
upheld by the Fourth Federal Cir
cult Court of Appeals, which had
depended on the 1918 decision.
The case hinged on the inter-
probation of a section of the Ju-
dicial Code derived from an 1881
statute declaring that the power
of courts to inflict summary pun
ishment for contempt shall not be
construed to extend to any cases
except the misbehavior of any per-
son or persons in the presence of
the said courts. or so near thereto to
obstruct the administration of JUS
tice ."
Held Narrowly Confined.
Reciting the history of the judicial
excesses which had led to enactment
of the 1881 statute. Justice Douglas
declared that by it the category of
criminal cases which could be tried
without a jury was narrowly con-
fined and that the early courts
recognized this fact"
The question is whether the
words so near thereto have geo.
graphical or a casual connotation." ="
he continued. Read in their con-
text and in the light of their ordi-
nary meaning, we conclude that
they are to be construed as geo.
graphical terms. 1t is not
sufficient that the misbehavior
charged has some direct relation
to the work of the court. Neal"
in this context, juxtaposed to pres
ence' suggests physical proximity,
not relevancy. In fact, If the words
so near thereto are not read in
the geographical sense they come
close, as the Government admits, to
being surplusage."
Concluding that ''metfculous re-
gard" must be had for the meaning
of the law, so that the instances
where there is no right to jury trial
will be narrowly restricted" Justice
Douglas amplifed that otherwise,
"the process of judicial construction
will have regained much of the gen.
erality which Congress in 1881 en-
phatically intended to remove"
Letter Held "Inconsequential.'
In this case, Justice Douglas said
.the acts complained of took place
miles from the District Court. So
far as the crime of contempt is con-
rerned, the fact that the judge re-
ceived Elmore's letter is inconse-
uuential." The remedy for the re-
puted obstruction of justice, he
added, lies in prosecution under the
criminal code
In the 1918 case which yester-
days decision overruled the seven
two decision of the court. with JUS
tices Holmes and Brandeis dissent
ing, upheld the contempt convic-
tion of Toledo newspaper for criti-
cizing court proceedings in street
railway case, on the ground that its
action had a reasonable tendency
to obstruct the administration of
justice"
In the sharp dissent in which he
was joined by Chief Justice Hughes
and Justice Roberts, Justice Stone
declared that from the reasoning
of the majority sit seems to follow
that the surreptitious tampering
with witnesses, jurors or parties in
the presence of the court, although
unknown to it, would be summarily
punishable because in its presence,
but that If it took place outside the
courtroom, or while the witness,
juror or party was on his way to
attend court, it would not be punish
able because geographical nearness
Is not an element in making the con-
temptuous action on obstruction OF
Justice"
California Cases Still Waiting.
This court" he continued, has
hitherto, without a dissenting voice.
regarded the phrase so near thereto