In re Gilbert

U.S. Circuit Court for the District of Northern New York

In re Gilbert

31 F. 277, 24 Blatchf. 325, 1887 U.S. App. LEXIS 2300

CourtU.S. Circuit Court for the District of Northern New York

DecidedApril 1, 1887

StatusPublished

This text of 31 F. 277 (In re Gilbert) is published on Counsel Stack Legal Research, covering U.S. Circuit Court for the District of Northern New York primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

In re Gilbert, 31 F. 277, 24 Blatchf. 325, 1887 U.S. App. LEXIS 2300 (circtndny 1887).

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Opinion

Per Curiam.

We have examined the report of the examiner with the accompanying affidavits, and the answer and other documents submitted by the respondent, and have reached the conclusion that all charges of conspiracy and of illegal and dishonest conduct on the part of the respondent are unsupported by the proof. The United States attorney frankly stated in open court that, in his opinion, the- respondent liad kept within the strict letter of the law, and that, after a careful investigation, he could produce no proof connecting the respondent with any immoral or corrupt practices. The attorney general, in a communication to the respondent, exculpates him from the charge of conspiring with others to manufacture business for the purpose of extorting money from the government. Unquestionably the record discloses some cases of hardship,—prosecutions for frivolous offenses which should never have been commenced; but the number, considering the amount of business transacted, is not large; and the suggestion that the respondent was instrumental in procuring the complaints to be made with a knowledge of the inadequacy of the proof is founded entirely upon conjecture.

The respondent is a respectable citizen of Rochester, where he has resided since he left the army, at the close of the war of the Rebellion, and the reputation which he has built up through years of patient and painstaking endeavor ought not to be assailed upon mere suspicion. We are pleased to say that we do not find any charge affecting his integrity sustained by the proof. The most serious criticism made against the administration of his office is, in our judgment, that he received the evidence of witnesses who spent a large portion of their time in ferreting out trivial and technical infractions of the revenue laws for the sole purpose of obtaining the fees of witnesses. In the great majority of revenue cases presented to the respondent these “professional witnesses” appear. That they embarked in the business solely for the money they could make is not denied, and their names appear with painful regularity upon the roll of witnesses. It is true that this practice is not at all confined to Rochester. It is true that the revenue laws cannot be enforced if none but the most respectable members of society can be called to the witness stand. It is true that if the- prosecution of offenders becomes lax the government will lose in revenue many times the amount now expended in fees. All this is true, and yet we are of the opinion that the practice of tolerating the co-operation of this class of informers, in the manner stated, is demoralizing, and tends to bring the administration of justice in the federal courts into disrepute. If it be necessary to employ spies and informers to bring offenders to justice, it should be done by administrative officers.

There is, unquestionably, room for difference of opinion upon this subject, and we accept the statement of the respondent that he thought it his duty to act upon all cases which he considered meritorious, no matter by whom presented, or how supported. But, entertaining the views we do upon this subject, we deem it proper to say that hereafter we shall regard it as a sufficient cause for removal if a commissioner abets or encourages the prosecution of violations of the internal revenue laws [279]*279set in motion by “professional witnesses.” If the officers of the revenue, or the law officers of the government, do not deem the cases of sufficient consequence to institute and follow up prosecutions, commissioners, who are judicial officers, and whose only duty it is to hear cases when they are presented, should not, directly or indirectly, instigate or countenance others in bringing criminal proceedings. Much less should they permit such cases to be brought by a class of men who act merely from mercenary motives, and cannot be expected to exercise judgment or-good sense in discriminating between real and technical'violations of the law.

The order to show cause is discharged.

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Per Curiam.

We have examined the report of the examiner with the accompanying affidavits, and the answer and other documents submitted by the respondent, and have reached the conclusion that all charges of conspiracy and of illegal and dishonest conduct on the part of the respondent are unsupported by the proof. The United States attorney frankly stated in open court that, in his opinion, the- respondent liad kept within the strict letter of the law, and that, after a careful investigation, he could produce no proof connecting the respondent with any immoral or corrupt practices. The attorney general, in a communication to the respondent, exculpates him from the charge of conspiring with others to manufacture business for the purpose of extorting money from the government. Unquestionably the record discloses some cases of hardship,—prosecutions for frivolous offenses which should never have been commenced; but the number, considering the amount of business transacted, is not large; and the suggestion that the respondent was instrumental in procuring the complaints to be made with a knowledge of the inadequacy of the proof is founded entirely upon conjecture.

The respondent is a respectable citizen of Rochester, where he has resided since he left the army, at the close of the war of the Rebellion, and the reputation which he has built up through years of patient and painstaking endeavor ought not to be assailed upon mere suspicion. We are pleased to say that we do not find any charge affecting his integrity sustained by the proof. The most serious criticism made against the administration of his office is, in our judgment, that he received the evidence of witnesses who spent a large portion of their time in ferreting out trivial and technical infractions of the revenue laws for the sole purpose of obtaining the fees of witnesses. In the great majority of revenue cases presented to the respondent these “professional witnesses” appear. That they embarked in the business solely for the money they could make is not denied, and their names appear with painful regularity upon the roll of witnesses. It is true that this practice is not at all confined to Rochester. It is true that the revenue laws cannot be enforced if none but the most respectable members of society can be called to the witness stand. It is true that if the- prosecution of offenders becomes lax the government will lose in revenue many times the amount now expended in fees. All this is true, and yet we are of the opinion that the practice of tolerating the co-operation of this class of informers, in the manner stated, is demoralizing, and tends to bring the administration of justice in the federal courts into disrepute. If it be necessary to employ spies and informers to bring offenders to justice, it should be done by administrative officers.

There is, unquestionably, room for difference of opinion upon this subject, and we accept the statement of the respondent that he thought it his duty to act upon all cases which he considered meritorious, no matter by whom presented, or how supported. But, entertaining the views we do upon this subject, we deem it proper to say that hereafter we shall regard it as a sufficient cause for removal if a commissioner abets or encourages the prosecution of violations of the internal revenue laws [279]*279set in motion by “professional witnesses.” If the officers of the revenue, or the law officers of the government, do not deem the cases of sufficient consequence to institute and follow up prosecutions, commissioners, who are judicial officers, and whose only duty it is to hear cases when they are presented, should not, directly or indirectly, instigate or countenance others in bringing criminal proceedings. Much less should they permit such cases to be brought by a class of men who act merely from mercenary motives, and cannot be expected to exercise judgment or-good sense in discriminating between real and technical'violations of the law.

The order to show cause is discharged.

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Bluebook (online)

31 F. 277, 24 Blatchf. 325, 1887 U.S. App. LEXIS 2300, Counsel Stack Legal Research, https://law.counselstack.com/opinion/in-re-gilbert-circtndny-1887.