| Mont. | Aug 10, 1891
By return made to the writ of habeas corpus, and the writ of certiorari issued in aid thereof, it appears that the prisoner was adjudged, by the District Court of the Second Judicial District, guilty of having committed a contempt of that court, and was therefore committed to jail. The facts and proceedings whereby the judgment and order of commitment was made appear by the returns as follows: A certain newspaper, known as the Helena Daily Journal, printed and published at the city of Helena, and of general circulation, contained in its issue of July 7,1891, among other items, the following; — ■
WHY THERE’S PREJUDICE.
“An old Montanian, who is very familiar with all the ins and outs of the Mavis Will Case, was discussing yesterday the subject of the change of venue, asked in this celebrated case, when he said s ‘Prejudice? Why, of course, there’s prejudice. The money involved in this case has turned the head of every man, woman, and child in Silver Bow County. Republicans and Democrats are sworn allies and friends in all that pertains to keeping the estate in the hands of the Butte parties, and they stood together for the re-election of Judge McHatton solely because they knew that he could never be won over to any other view of the will than the Butte view. This was why no Republican nomination was made, and why McHatton was so
On the ninth day of July, 1891, Hon. John J. McHatton, judge of department 1 of said court, made and filed in his court an affidavit setting forth that an action or proceeding for the probate of an alleged will of Andrew J. Davis, deceased, was pending in said court; that such case or proceeding was generally known as the Davis Will Case; that said MacKnight and other persons named in the affidavit were the editors and publishers of said newspaper, and published the matter recited; and that “said publication has come under the observation of the judge of said court, and the charges therein made are false and contemptuous.”
Upon the filing of the affidavit, said court issued an attachment for the persons charged with commission of contempt by said publication. In .the proceedings which were afterwards had before said court, in the matter of this alleged contempt, the petitioner, MacKnight, appeared to show cause why he should not be punished for contempt as charged; and answered, admitting that he was the managing editor of said newspaper at the time of said publication; admitted that he alone wrote and caused to be published in said newspaper the matter recited ; but denied that the same was a contemptuous act towards said court, or the judge thereof, or was so intended by the author and publisher thereof.
Then followed an inquiry before said court, wherein said MacKnight, under oath, explained to the court where and
At this point the inquiry was directed to the ascertainment of the names of the persons who had made the comments mentioned.
In answer to questions calling for the names of such persons, the witness said s . “ There were individuals that made some of the comments in the article whose names I cannot possibly recall, but it was in private conversation.” In only one case could the witness recall the person who stated what constituted a portion of the comment published, namely, that which related to the political situation in Silver Bow County at the time of the last election. The witness saids aAs a matter of fact, the gentleman who made those remarks did not wish them printed. He had no feeling or interest in the Davis Will Case, I gave him my word that I would not in any way disclose his name, and wrote the paragraph several days after the conversation.” The name of the person in question was demanded by the court under peril of commitment for contempt if the witness refused to disclose it; but the witness declined to state the name of such individual without his permission. A continuance was then had to give the witness an opportunity to consult said person, and find whether it would be agreeable to have his name mentioned to the court in this proceeding. On resuming the hearing, the witness stated that the individual in question, whose comments had been thus taken by the witness and published, would not consent to have his name given to the court, and the witness declined to disclose it; whereupon the court adjudged
Upon the hearing before this court, counsel who appeared in the court below, as amicus curice in the proceedings, also appeared here, and raised the point that this court has no jurisdiction to bring up for review by writ of certiorari the proceedings of the lower court in the matter in question. In support of this position, he cites that clause of section 3, article viii. of the Constitution, which provides that the Supreme Court “shall have power, in its discretion, to issue and to hear and determine writs of habeas corpus, mandamus, quo warranto, certiorari, prohibition, and injunction, and such other original and remedial writs as may be necessary or proper to complete exercise of its appellate jurisdiction.” Counsel contends that the writ of certiorari, and others named in said clause, can only be issued by this court when the same are necessary or proper in the exercise of its appellate jurisdiction, and therefore the issuance of the Avrit of certiorari in this case was irregular, because it was not in aid of the appellate jurisdiction of this court. His position is that the latter words of said clause relate to the writs specifically mentioned, and restrict this court to the use of said writs, in the exercise of its appellate jurisdiction only.
The case at bar presents a striking illustration of the error involved in such a construction of said clause of the Constitution as is contended for by counsel. It is clear that this court is given power to issue, hear, and determine all of the writs mentioned, among others the writ of habeas corpus. That is conceded by all, but the contention is that this court can issue, hear, and determine said writs only in the exercise of its appellate jurisdiction. Now, how would the writ of habeas corpus be ordinarily used by the Supreme Court in the exercise of its appellate jurisdiction? So the writ of certiorari is among the writs which this court is expressly authorized to issue, hear, and determine. Yet that writ is peculiarly inapplicable to use
It is provided in the Constitution that this court shall have power “to issue and to hear and determine” said writs, which are known and certain implements of courts. Their office being known, the framers of the Constitution understood exactly what jurisdiction was being granted by placing them within the power of the court to issue, hear, and determine. In that there was no uncertain grant of jurisdiction. But the Constitution does not stop there. It adds: “And such other original and remedial writs as may be necessary or proper to complete exercise of its appellate jurisdiction.” These other original or remedial writs are restricted to the exercise of appellate jurisdiction. Why? Because otherwise this grant of jurisdiction to frame, issue, hear, and determine new writs, heretofore unknown in the administration of justice, would have been the granting of an unknown, unlimited, and undefined power; therefore such other writs were limited to the exercise of appellate jurisdiction.
To further indicate the use which it was intended would be made of the writ of certiorari, the same section of the Constitution provides that “each of the justices of the Supreme Court may issue and hear and determine writs of certiorari in proceedings for contempt in the District Court.”
The jurisdictional question raised by counsel is not sustained.
Beturning to the consideration of the merits of the proceedings under review, we find counsel for the prisoner challenging the legality of the imprisonment by two propositions.
First. That if a contempt was committed by such publication, as charged, then the contempt was committed by that act;
Secondly. That in the main proceedings the matter charged, to wit, the writing and publishing of the matter set forth, did not in law amount to a contempt of court, and therefore the court was proceeding without jurisdiction, and all questions-pertaining to the matter in such proceeding were irrelevant and unauthorized, and the witness had a legal right to respectfully decline to answer any or all questions in a case where the court was without jurisdiction.
We are of the opinion that in this case the law fully sustains both propositions in favor of the prisoner. As to the first proposition, the record shows that the prisoner appeared before the court, and admitted every fact charged as constituting the contempt.
What fact there was in the charge not admitted, or what relevancy there was in the questions which the prisoner refused to-answer, the counsel who acted as amicus curiae was unable to explain, and we have been unable to ascertain. It is provided in sections 659 and 660 of the Code of Civil Procedure, that witnesses shall answer questions legal and pertinent to the matter in issue. They are not bound to answer questions irrelevant to the issue. (Ex parte Zeehandelaar, 71 Cal. 238" court="Cal." date_filed="1886-10-29" href="https://app.midpage.ai/document/ex-parte-zeehandelaar-5442787?utm_source=webapp" opinion_id="5442787">71 Cal. 238.)
After the prisoner had admitted the facts set forth in the charge as constituting a contempt, if, then, an inquiry as to facts outside of that charge was necessary to establish contempt, it follows that no contempt was charged in the proceeding.
But suppose the prisoner had answered the question put to-him, and said that A made the remarks about the “political situation in Silver Bow County.” Would the offense charged, to wit, the publication of said remarks, have been any more certain, or would the gravity of the offense been any greater or less, than it would have been if B had made those remarks? Suppose, again, the prisoner had answered that A made the remarks, and A had been called and questioned, and said that
The main charge preferred against the prisoner is not within the acts defined by statute as contempts, nor is it within the general definitions of that offense, as found in the authorities upon this subject. The principal ingredient of the definition of “contempt” is disregard of the authority of the court. It is provided in our statute that certain acts or omissions described “ are contempt of the authority of the court: First. Disorderly, contemptuous, or insolent behavior towards the judge while holding court, tending to interrupt the due course of a trial or other judicial proceeding. Second. A breach of peace, boisterous conduct, or violent disturbance, tending to interrupt the due course of the trial or other judicial proceeding.” (Code Civ. Proc. § 584.)
Definitions taken from works of authority are as follows:—
“ A wilful disregard or disobedience of a public authority.” (Bouvier’s Daw Diet.)
“Disrespect; wilful disregard of the authority of a court or legislature.” (Anderson’s Law Diet.)
“ Contempt is disorderly or insolent language or behavior in the presence of a legislature or judicial body, tending to disturb its proceedings, or impair the respect due to its authority; or a disobedience to the rules or orders of such a body, which interferes with the due administration of law.” (3 Am. & Eng, Encycl. of Law, 777.)
Counsel cites, in support of the proceedings, the law as laid down by Blackstone. This eminent commentator on the laws of England gave his works to the world many years before the adoption of the Constitution of the United States, and at a time when a censorship of the press was thought to be a proper office of government. It is well known that in his time the English courts assumed a much wider scope on the subject of applying the process of contempt to restrict the freedom of speech and publication than in more recent times. And yet this proceeding cannot be supported by citations from Blackstone, without culling from his text the most general observations. The case of Territory v. Murray, 7 Mont. 251" court="Mont." date_filed="1887-07-15" href="https://app.midpage.ai/document/territory-v-murray-6637777?utm_source=webapp" opinion_id="6637777">7 Mont. 251, is cited in support of this proceeding. That case, we think, has no application to the case at bar. The offender in that case was a suitor before the court. It appears that he concocted a scheme, and invented a fictitious set of facts, in relation to the very case under adjudication, in which he was a party. He caused to be telegraphed a statement of the fictitious and alleged events, which he had conjured into apparent existence, and caused the same to be published so as to get it communicated to the attention of the court; and it was clear that he did all this to cause an impression upon the mind of the court which he thought would work to his benefit in the litigation wherein he was interested. That case, it seems to us, ought not to have misled either court or counsel in the case at bar. The publication in the Mwrray Case, supra, was put out of consideration, the court observing that the offender had used the press to communicate to the court the fictitious matter which he had concocted, and which he hoped would have an influence. The court passed by the publisher, and turned its attention to the offending suitor. A review of authorities shows clearly that a suitor is held to a stricter accountability for his conduct than parties in no way connected with the litigation.
The people of this State did not omit that guaranty of freedom of speech and publication from their constitution, with the ordinary responsibility attached to the misuse thereof. (Art. iii. § 10.)
It is ordered that the prisoner be discharged.