11 Mont. 67 | Mont. | 1891
It appears that the petitioner was proceeded against in the court of the police magistrate of the city of Butte, upon a charge of having committed contempt of said court, in that the petitioner, on the 28th of June, 1891, caused to be printed and published in the Daily Miner, a newspaper printed and published in said city, a certain article in terms as follows: —
“Card from J. W. Shannon. Butte, June 26. To the editor of the Miner: In this morning’s Miner an article on the local page recites, animadverts, and moralizes upon a case in the District Court which was appealed from a lower court, and in the determination of which the local government was put to cost of more than two hundred dollars, to save the defendant from paying the paltry fine of five dollars, when, according to a jury of his peers, he had done no wrong. I grant you that this is a representative case, and illustrates a flagrant and frequent abuse, with the emphasis on ‘frequent.’ But it is to the remedy proposed that this deponent would demur. ‘Fix a limit to appeal eases.’ Never. The right of appeal should be neither limited nor abridged. The right of vindication is cheap, at any cost. Why not correct the necessity of such appeals? Why not modify our ordinances so that the court and prosecuting attorney shall not be interested in their own convictions? Ray them fixed salaries, and free them from the imputation of running ‘ a cost shop,’ and waxing fat at the expense of victims who get into their toils. They would not then find it necessary
This publication was alleged in the proceedings to be “ a contemptuous and insolent article, concerning the proceedings of said court, and the practice therein.”
Upon the hearing, the petitioner raised the question of the jurisdiction of the court to proceed against him as for contempt upon the matter set forth, and insisted that the facts set forth did not constitute a contempt of court, and therefore that the court had no jurisdiction to entertain the proceeding. The police magistrate, however, found the petitioner “guilty as charged, and ordered and adjudged that he pay a fine of fifty dollars, and costs of this prosecution, amounting to the sum of ten dollars, and stand committed to the county jail until such judgment is satisfied.”
The proceedings of said court in the matter under consideration, and files and records concerning the same, duly authenticated by certificate and seal, are made a part of this application, to show wherein the imprisonment is “alleged to be illegal,” and “in what the alleged illegality consists.” (Comp. Stats, div. 5, § 1165.) And upon the showing it is insisted here by counsel for petitioner that the imprisonment is illegal, because the judgment and commitment proceeded upon a charge which ■in law does not constitute a contempt of said court, and hence the court was without jurisdiction to assess such punishment.
The act of incorporation of the city of Butte grants to the
Section 584 of the Code of Civil Procedure defines certain “acts or omissions in respect to a court of justice, or proceedings therein,” which constitute “contempts of the authority of the court.”
There is some controversy in the reports and authorities as to whether a statute defining what shall constitute contempt operates to take away common-law jurisdiction of courts of record in such proceedings, and leaves the court with only statutory-jurisdiction and power to punish only where the act or omission comes within the express provisions of statute, or whether such statutes are only declaratory of the- common law in part, or supplemental to it, and leave the court free to exercise common-law jurisdiction upon this subject, in eases not provided for by statute, where such case was formerly cognizable at common law. (Clark v. People, 12 Breese, 340; 12 Am. Dec. 177, and note; State v. Galloway, 5 Cold. 326; 98 Am. Dec. 404, and note, and cases cited.) That question was touched upon by the learned judge in delivering the opinion of the court in Territory v. Murray, 7 Mont. 251, although that case was declared to be within express provisions of our statutes. But such questions do not concern this inquiry. The Justice’s Court is not one of general or common-law jurisdiction. Its jurisdiction is restricted to the limits prescribed by statute. In cases of contempt, the statute provides that such courts “ may punish any person guilty of a contempt, as defined by this act.” Therefore the power of a justice of the peace to punish for contempt is confined to the acts or omissions prescribed
The power of inferior courts to punish persons for contempt, in cases where the act for which the punishment is adjudged did not occur in the presence of the court, is questioned by some authorities, and denied altogether by others. Mr. Bishop, in his work on Criminal Law, states the result of his investigation of the subject as follows: “ Contempts against justices of the peace — distinguished from Superior Courts of record. What has been said thus far refers particularly to contempts against higher courts of record. But there is an opinion, which may, perhaps, be well founded, that the authority of justices of the peace is somewhat more limited. They may commit for con-tempts in their presence while holding their court; but Mr. Gabbett observes that ‘courts of inferior jurisdiction cannot attach or commit a party for any contempt which does not arise in the face of the court.’ And there are many expressions in the English books apparently sustaining this general proposition. Thus, though the present County Courts are of record, and by the statute are permitted to commit only for contempts in court, still, being of inferior jurisdiction, it is strongly intimated that the same result would proceed from common-law principles. It is also held in England that the sessions cannot proceed in this way against a man for disobeying an order of filiation, but only on his recognizance; and we have some
Undoubtedly, the statute of Montana extends the power of justices of the peace beyond the narrowest limits referred to by the learned author. But that power cannot be extended beyond the statute. Its exercise must be confined to acts mentioned in the statute, occurring in the presence of the court, or so near as to “interrupt the due course of a trial or other judicial proceeding; or, when exercised in reference to acts done out of court, the act must be one expressly defined by statute; such, for example, as unlawful interference with the legal execution of processes. None of these would include power to punish for the expression of sentiments through the medium of the public press or otherwise regarding the practice of the court, or of results or abuses alleged to flow from the past administration of such court. A power to punish for such utterance, or to silence the voice of comment upon such matters, would be the discovery of an unknown quantity in jurisprudence, and the exercise of it would be a menace to a free and spirited people.
The constitutional right of freedom of speech, written in the tenth section, article iii. of our Constitution, would be set at naught by the exercise of such a power, whenever that freedom of speech happened to be directed to the action of public courts. There is no such exception. We speak now of the discussion of matters pertaining to courts, or the practice therein, which have no tendency to affect the merits or result of particular cases pending, which class of discussion is entirely distinguished from publications which are designed and put forth for the purpose and have a tendency to influence the result of particular cases.
So far as the article in question refers to any particular case, it refers to one determined in the District Court.
"Viewing the contents of this publication alone, free from any knowledge of local events, which might possibly direct the course of imagination, we are struck with surprise that the honorable police magistrate entertained an affidavit which declares that
It is ordered that the writ of habeas corpus issue, and if the imprisonment is found to be based upon the proceedings set forth in the application, the prisoner will be summarily discharged.