17 Mont. 140 | Mont. | 1895
This proceeding is based upon subdivision 7, § 293, of the Penal Code. Under this subdivision, ‘ ‘the publication of a false and grossly inaccurate report of the proceedings of any court’ ’ is recognized as a contempt of court, and the perpetrator thereof is declared to be guilty of a misdemeanor.
The first question that presents itself is this: Is the publication under discussion a report of the proceedings of this court in the cases referred to in the affidavit ? We think this question must be answered in the affirmative. It refers to the cases, tells what was done by this court, and then says how and why it was done, in language contained in the Statement. So that, if the publication constitutes a report of the proceedings of this court in the cases referred tó, and is “false and grossly inaccurate,” it amounted to and was a contempt of
The respondent, as. a second ground for quashing the writ in the case, contends that it does not appear that, at the time of the publication in question, any of the cases referred to therein were pending before this court. In this the respondent is in error, we think. The affidavit states that no remittitur had been issued by this court in any of the cases mentioned therein. This court obtained jurisdiction of the cases by appeal. It did not part with that jurisdiction as long as no remittitur had been issued returning the case to the district court. In Kimpton v. Jubilee Placer Mining Co., 16 Mont. 379, on petition for rehearing, this court held that it had jurisdiction until the remittitur had been issued. (See authorities cited in that opinion. See, also, Haynes, New Trials & App. § 293, and authorities cited.)
This proceeding having, been instituted under the section of the Penal Code cited above, would it make any difference if the remittiturs had been issued in the cases ? By the provisions of the Code, the contempt consists in publishing a “false and grossly inaccurate report of the proceedings, ” of the court. How could any report be published of the proceedings in question of the court until after the proceedings had been had, or of any opinion or decision of the court until such opinion or decision had been rendered ?
“If an ignorant or impolite man stalks into a courthouse with his hat on, or makes a noise about the door, or disobeys process, all agree that he may be punished for contempt, but if a man has an important case pending in court, and, willing to resort to desperate measures to succeed, publishes, on the eve of the trial, a libel, alleging that the judge has been bribed to charge the jury against him, and that all the witnesses who are to appear on behalf of the opposing party have been corrupted, and are unworthy of credit, it is no contempt, and the judge must labor under- the embarrassment of sitting in the case, under such circumstances, with his mouth closed ! Or if a judgment is rendered against a man, as soon as the judge leaves the bench, he is met at the door, insulted and assaulted by the party, in consequence of his decision, and then a publication is made in a newspaper charging him with corruption in rendering the judgment, and calling upon the community to disregard and resist its execution, and yet this is no contempt ! ’ ’
The respondent, as a third ground for quashing the writ, contends that, if the matter contained in the publication is punishable at all, it is by criminal prosecution, and not in proceedings in contempt. This contention is evidently urged upon the theory that the cases referred to in the affidavit and publication were not pending in this court at the date of the publication of the alleged contemptuous matter. But it becomes appropriate to notice this contention further, for the reason that, in their argument, the able counsel of respondent dealt eloquently and at length upon the constitutional liberty of the press, which they claim is involved in the case. This court is not less mindful of the importance and absolute necessity of maintaining the freedom of the public press than the eloquent counsel themselves, if we would preserve the liberties of the people and republican institutions and government in this country.
While this section of the constitution secures the largest liberty to the press, it also imposes responsibilities. It is a statute of liberty, not of ‘ ‘ licentious scandal. ’ ’ The liberty of the press is one thing; the ‘‘ abuse of that liberty ” is quite another. (People v. Stapleton (Colo. Sup.) 33 Pac. 167.)
We cannot better express our views of this most important subject than by appropriating the language of the court in State v. Morrill, quoted above, — an able and exhaustive opinion on the freedom of the press in this country. The court in that case, after speaking of the limited powers of the legislature to punish contempt, says :
‘ ‘ But the fact that the convention which framed the constitution had the subject of contempts before them, placed a limitation upon the power of the two houses to punish contempts, but did not think proper to place any such limitation upon the power of the courts, warrants the conclusion that the courts were left to exercise such common law powers on the subject as, in their sound discretion, might be found necessary to preserve their authority, and enforce their legal process, orders, judgments and decrees, without which they could not answer the purposes of their creation. And there is a good reason why the framers of the constitution might well have made this distinction. The legislature is a political body. If its proceedings and the conduct and motives of its members are unjustly assailed by libelous publications, they may defend their official conduct, and repel attacks through the press, and upon the ‘ stump; ’ but it is not the usage of the country, nor would it comport with the dignity of judicial stations, for judges to resort to newspapers or the public forum in defense of the integrity of their decisions, etc., and it would be an unwise policy that would drive them to such a course. Moreover, the fact that judges of this country, or the one from which we
And in this case it will be observed that although such matters may be crimes, and punishable as such, still this does not deprive the courts of the power to punish such acts as contempts. As being in harmony with the views expressed in--State v. Morrill, we cite People v. Stapleton (Colo. Sup.) 33 Pac. 167, and State v. Frew, 24 W. Va. 416. Authorities to the same effect might be multiplied to any extent. The views herein expressed are in harmony with the decision of this court in Territory v. Murray, 7 Mont. 251, 15 Pac. 145, in which case the distinguished counsel for this respondent appeared as the friend of the court. The case at bar is distinguished- from In re MacKnight 11 Mont. 126, 27 Pac. 336, for the-reason that the law of contempts has been changed in this state since that decision. The law upon which this proceeding is based was
Counsel for respondent have cited many authorities to the effect that courts have no authority to punish as contempts publications of newspapers, however contemptuous, and even libelous, they may be, if they are published of and concerning cases and proceedings that are not pending in court. But these authorities are not applicable or pertinent, since we hold that the cases referred to in the publication under discussion were pending in this court at the date thereof, and, besides, this opinion is confined to the determination of the question whether the publication under discussion constitutes a.contempt of court, under the section of the Penal Code under which this proceeding was instituted. Having fully considered this case in this light and from this standpoint, we are of the opinion that the publication mentioned in the affidavit constitutes a contempt of court.
This brings us to a consideration of the answer of respondent, in which he denies all intention to insult this court or bring it into contempt by said publication, and in which he asserts that the publication was intended to apply to others, and not to this court in any respect whatever. Under like circumstances, in People v. Stapleton, cited above, the court, after holding Stapleton guilty of contempt, accepted his sworn answer that he did not intend to insult or bring the court into contempt, as a sufficient ground for refraining from inflicting other punishment than the payment of costs. In the Morrill case, cited above, the same action was taken by the court, except that the court did not tax the costs against Morrill. W e think it entirely within our discretion whether we will inflict punishment or not in this case. We have no desire to oppress the respondent. We understand and fully appreciate the delicate and unenviable position of this court in this peculiar case, as we are, in a sense, trying a matter that involves an offense against our own tribunal. We regret that we have felt called upon by a sense of duty to proceed in this matter at all. Only the belief that it was our duty to defend the court and its pro
The writ is ordered vacated, and the respondent discharged.
Writ vacated.