Before SWAN, MEDINA and WATERMAN, Circuit Judges.
We have recently dealt with an attempt to assimilate into the admiralty practice the harsh and often criticized provisions of the New York Civil Practice Act authorizing in certain cases body executions as a means of collecting money judgments. Archawski v. Hanioti, 2 Cir., 239 F.2d 806. This case presents the allied question, whether the contempt method of collecting judgments authorized by Section 793 of the New York Civil Practice Act is available to the Government as a means of compelling payment of the unpaid balance of a committed fine imposed on appellant by the District Court in a criminal case.
On June 26, 1945, appellant was convicted in the United States District Court for the Southern District of New York of violating the Second War Powers Act of 1942, 50 U.S.C.A.Appendix, § 633, by using newsprint paper in excess of his quarterly consumption quota. He was sentenced to 60 days in jail and fined $20,000. We affirmed the judgment. United States v. Rewl Publications, 2 Cir., 153 F.2d 610. Appellant served the sentence and an additional 30 days, after which he made application for his release from imprisonment, offering to take the poor person's oath provided in 18 U.S.C. § 3569, entitled "Discharge of indigent prisoner." At that time he had paid only $6,547.06 of the fine.
The Commissioner denied the application for discharge "due to the fact that the government has information that the defendant is concealing moneys"; but after some negotiations and on August 8, 1946, appellant paid another $1,099.40 on account, and he requested that certain "equipments" be not "attached" by the Government and that he be permitted to pay the balance of the fine in monthly installments of not less than $100 each, beginning November 1, 1946. Thereupon he was permitted to take the oath of inability to pay and he was discharged from imprisonment.
There ensued a long series of proceedings. He paid for a time; a bailable attachment was issued against him; various orders were made directing the payment of the balance in installments and a number of contempt proceedings were started and then withdrawn. This culminated in an order of Judge Murphy, consented to by appellant, made on March 10, 1955, which reduced the installment payments to $25 each month through December 1955, and $100 each month thereafter "until the entire unpaid balance shall be paid in full."
Appellant again fell into arrears. After personal service of an order to show cause why he should not be punished for contempt, for failure to obey the directions in Judge Murphy's order, a hearing was had and he was on March 21, 1956 adjudged in contempt by Judge Dawson; and this appeal followed. The order is entitled "In the Matter of Supplementary Proceedings, United States of America, Plaintiff and Judgment Creditor, v. Lindsey L. Baird, Defendant and Judgment Debtor"; and it directs appellant's imprisonment "until all past due installments of fine are paid, as provided in the amended order of Honorable Thomas F. Murphy, or the judgment debtor is otherwise discharged according to law." The execution of this commitment has been stayed by order of this court during the pendency of this appeal.
We are not concerned with the character of appellant nor with the sincerity of his protestations of inability to pay the balance of the criminal fine imposed upon him. Nor, in the view we take of the case, need we search the record to see whether all the intricate requirements of the New York Civil Practice Act in such matters have been complied with.
It is the position of the Government that we cannot pass on the validity of Judge Murphy's order because no appeal was taken from that order. But we take a different view.
It is now settled law that the validity of the underlying order may be reviewed on an appeal from the order of commitment for contempt, if the contempt adjudication is civil in character. United States v. United Mine Workers, 330 U.S. 258, 294-295, 67 S. Ct. 677, 91 L. Ed. 884.See also Nye v. United States, 313 U.S. 33, 42, 61 S. Ct. 810, 85 L. Ed. 1192; McCrone v. United States, 307 U.S. 61, 64, 59 S. Ct. 685, 83 L. Ed. 1108; Duell v. Duell, 85 U.S.App.D.C. 78, 178 F.2d 683, 14 A.L.R.2d 560. Where the punishment is wholly remedial, serves only the purposes of the complainant, and is not intended as a deterrent to offenses against the public, the contempt adjudication is plainly civil in character. Such is the case here, despite the fact that the proceedings constitute an attempt to collect a fine imposed on appellant in a criminal case, and despite the immaterial circumstance that the contempt proceeding was brought on for hearing in the "Criminal Motion Part, Room 318" in the United States Courthouse in the Southern District of New York. The order of commitment clearly directs the imprisonment of appellant "until all past due installments of fine are paid." Accordingly, we hold that the purpose of the imprisonment was collection of the overdue installments rather than punishment for disobedience of Judge Murphy's order.
We turn to the merits. The question is interesting and novel. In substance the argument of the Government is that "the collection of fines and penalties" is governed by the procedure applicable to the "collection of a civil judgment"; Rules of Criminal Procedure, Rule 54(b)(5), 18 U.S.C.; Rules of Civil Procedure, Rule 69(a), 28 U.S.C.; that the whole scheme of Article 45 of the New York Civil Practice Act, entitled "Proceedings Supplementary to Judgment," including Section 793 thereof, is available for the collection of this money judgment, because Rule 69(b) states that the procedure on execution and in proceedings supplementary to and in aid of a judgment or execution "shall be in accordance with the practice and procedure of the state in which the district court is held." It is not disputed that New York Civil Practice Act, § 793, authorizes, under certain conditions and with certain safeguards against abuse, an order directing the judgment-debtor to pay the judgment in installments and it further specifically provides that a failure or neglect to comply with such an order "shall constitute a contempt, punishable civilly."
We hold, however, that the federal statutes governing the "Collection and payment of fines and penalties," and the "Discharge of indigent prisoner", 18 U.S.C. §§ 3565, 3569, provide an exclusive pattern of procedure to be followed in the matter of committed fines imposed in criminal cases; and that, if a defendant is released upon taking what is described in the old cases as "the pauper's oath," subsequent to his remaining in prison for 30 days after the expiration of such part of the judgment of conviction as constitutes sentence for a prison term, the Government is restricted thereafter to the prosecution of proceedings against his property and may not, as here, proceed against his person.
" § 3565. Collection and payment of fines ...