155 P. 278 | Mont. | 1916
delivered tbe opinion of tbe court.
In May, 1915, George L. Metcalf instituted proceedings in the district court to oust C. W. Ward from his office as county commissioner of Ravalli county. A demurrer to his complaint was sustained, and a judgment of dismissal entered. A like proceeding against N. J. Tillman was disposed of in like manner. In November following Metcalf caused to be published in the “Western News,” a newspaper of general circulation in Ravalli county, a tirade of vilification and abuse directed at the county commissioners, the county attorney, and Honorable R. Lee Mc-Culloch, the judge who presided in the Ward and Tillman cases. The publication is altogether too lengthy to be reproduced. In effect it charged the county commissioners with looting the pub-
The causes to which the publication referred had been finally determined some.time before the article was published; but the references to Judge McCulloch were not merely personal to him but related to his character as judge of the district court. One reference follows: “My first ease was thrown out of court on a technicality, and again I brought suit. The judge threw it out of court, characterizing it as ‘a dirty mess.’ If a man takes a horse or a few head of cattle that do not belong to him, he goes to Deer Lodge [penitentiary]; but when two of our commisrsioners take $683.90 of the county’s money, that is simply ‘a dirty mess.’ ”
The right to punish for contempt is as old as the law itself.
The publication of a false or grossly inaccurate report of the
In Roach v. Garvan (St. James Evening Post Case), 2 Atk. 469 (26 Eng. Reprint, Chap. 683), Lord Hardwicke said: “There are three different sorts of contempt. One kind of contempt is -scandalizing the court itself. There may be likewise a contempt of this court in abusing parties who are concerned in causes here. There may be also a contempt of this court in prejudicing mankind against persons before the cause is heard.”
There is not any doubt that the publication of scandalous matter concerning a court constituted contempt at common law, irrespective of whether the publication related to a case pending ; but, unless it did relate to a cause before the court, it was treated as contempt only because it tended to bring the court into disrespect, or, in other words, to scandalize the court. The rule has been adopted and applied in a few instances in this country. (Commonwealth v. Dandridge, 2 Va. Cas. 408; Burdett. v. Commonwealth, 103 Va. 838, 106 Am. St. Rep. 916, 68 L. R. A. 251, 48 S. E. 878; State v. Morrill, 16 Ark. 384; State v. Hildreth, 82 Vt. 382, 137 Am. St. Rep. 1022, 18 Ann. Cas. 661, 24 L. R. A. (n. s.) 551, 74 Atl. 71; In re Moore, 63 N. C. 397.)
In Ex parte McLeod, 120 Fed. 130, the United States district court for the district of Alabama treated as contempt an assault upon a United States commissioner because of his official act, although the assault did not occur in the presence of the court, or in any manner interfere with court proceedings. This case is sui generis.
In State ex rel. Haskell v. Faulds, 17 Mont. 140, 42 Pac. 285, this court had before it a publication concerning cases then pending in court, and determined that the publisher was guilty of contempt. The court declined to consider whether the same publication concerning cases finally determined would or would not constitute contempt, but for some reason not apparent quoted at considerable length from State v. Morrill, above.
The common law of England is not our birthright. To whatever extent it has been in force, it was and is ours by adoption and not by inheritance. The territory embraced within this state was not a British possession in colonial days, and came under the influence of the common law only by virtue of an Act of the first legislative assembly which provided: “That the common law of England, so' far as the same is applicable and of a general nature, and not in conflict with special enactments of this territory, shall be the law and the rule of decision, and shall be considered as of full force until repealed by legislative author
It is worthy of note that, while some of our courts have recently adhered to the rule announced by the high court of chancery in 1742, in England, where it had its origin, it has long since fallen into a state of innocuous desuetude. In 1899, in McLeod v. St. Aubyn, 68 L. J. R. 137, the Judicial Committee of the Privy Council, after referring to the law of contempt as stated by Lord Hardwicke, said: “Committals for contempt of court by scandalizing the court itself have become obsolete in this country. Courts are satisfied to leave to public opinion attacks or comments derogatory or scandalous to them.” There is nothing in Rex v. Gray, 2 Q. B. 36, 69 L. J. R. (n. s.) 502, to indicate a contrary view.
The history of the legislation regulating the power to punish for contempt in the federal courts, other than the supreme court, is indicative of the trend of public opinion upon this subject. In 1826 James H. Peck, United States district judge for the district of Missouri, imposed severe punishment upon Luke Lawless, an attorney, for publishing an article criticising one of his decisions. When the matter was called to the attention of the House of Representatives, Judge Peck was impeached, but, upon trial before the Senate, he was acquitted. • The Congress, however, immediately enacted what is now section 725, United States Revised Statutes, which attaches the following
The supreme court of North Carolina has recently receded from the position taken in the Moore Case above. While challenging the authority of the legislature to destroy or sensibly impair the power of a court to punish for contempt, the court-treated a recent statute of that state upon the subject of contempt as follows: “Having reference to the history of this statute, the context, and the language employed, it was clearly the purpose and meaning of the Act to restrict the power' of the court, in this last respect, to the publication of grossly inaccurate reports about a trial or other matter still pending, and, this being in our view the proper and only permissible occasion for the éxereise of such a power in reference to these publications, we are of opinion that the provision of the statute should, in this respect, be upheld as written, and the power to punish summarily for defamatory reports and criticisms, about a matter that is past and ended, no longer exists.” (In re Brown, 168 N. C. 417, 84 S. E. 690.)
In 6 Ruling Case Law, 512, the modern American doctrine is tersely stated as follows: “At common law the mere writing contemptuously of the judge of a superior court was a constructive contempt, but this doctrine has not been fully adopted in this country and. has been limited by our constitutional guaranties of free speech and liberty of the press to pending cases. The common-law rule was founded on the obsequious and flatter
The framers of our Constitution recognized, without limiting, the power of the courts to punish for contempt (see. 3, Art. VIII); but they understood the law of contempt to be a law of necessity, and its exercise in any given instance to be measured and restricted by the necessity which calls it into existence. The purpose to be subserved by investing our courts with such extraordinary power is to enable them to maintain order and decorum, compel respect for their lawful orders and process, and enable them to investigate and determine the causes before them without let or hindrance from any extraneous sources. Any publication which tends to interrupt the due course of
It cannot be that liberty of the press means only the right to publish laudatory matter concerning a court or judge, but that as to their shortcomings or demerits there must be profound silence. In the language of a distinguished jurist: “No such divinity doth hedge about a judge.”
The publication of a false, or grossly inaccurate, report of the proceedings of a court, constitutes contempt of court, and subjects the offender to prosecution in a criminal action for a misdemeanor. (Rev. Codes, sec. 8275.) Standing alone, the language might be deemed sufficiently comprehensive to include comments upon cases finally determined; but it is to be remembered that the provision first found its way into the statutes of this state in 1895, and therefore is to be construed in the light of our constitutional guaranties, the decisions of courts generally, and the fact that the section does not undertake to define con-tempts but only to designate certain contempts as crimes. The most cogent reason exists for restraining a false publication concerning matters pending in court, where the administration of the law may be impeded or justice actually defeated, and the interests of the public are sufficiently involved to warrant classifying such a contempt as a crime. But we cannot believe that the legislature ever intended to denounce as a crime every false or grossly inaccurate report concerning causes finally determined, when no pnblic interest ean suffer as a consequence of the publication.
If it be contempt of court and a crime to publish a false report concerning a cause finally decided a week or a month ago, the offense is equally as great if the false report concerned the proceedings taken in the most trivial cause a year ago. To say that the plaintiff was successful in the case of A. v. B., when in fact the defendant prevailed, would be a false report of the pro
The publication by this relator is hardly susceptible of classification as a report of court proceedings. If it offends, it is because it libels the judge and scandalizes the court; but the offense of “scandalizing the court,” as understood at common law, is unknown to our jurisprudence, particularly since the adoption of the Constitution, and ample provision is made for redress for libel, by civil action. The supreme court of Kansas has said: “No judge, and no court, high or low, is beyond the reach of public and individual criticism. After a ease is disposed of, a court or judge has no power to compel the public, or any individual thereof, attorney or otherwise, to consider his rulings correct, his conduct proper, or even his integrity free from stain, or to punish for contempt any mere criticism or animadversion thereon, no matter how severe or unjust.” (In re Pryor, above.)
And the supreme court of the United States declared: “When a case is finished, courts are subject to the same criticism as other people.” (Patterson v. Colorado, 205 U. S. 454, 463, 10 Ann. Cas. 689, 51 L. Ed. 879, 27 Sup. Ct. Rep. 556.)
A court, as such, has no sentient existence. It is only through its administrators that it can be assailed, and every attack necessarily has its personal as well as its official phase. So long as published criticism does not impede the due administration ef the law, it were better that we maintain the guaranty of our Constitution than undertake to compel respect or punish libel by the summary process of attachment for contempt. In Field v. Thornell, above, the supreme court of Iowa said: “It must be added, however, that the courts have no power or desire to control the press in its legitimate sphere. Its freedom is jealously guarded by the law, and made secure in the Constitution. It enjoys the utmost latitude in reviewing the action of the courts, and may, after the particular litigation is ended, assail,
The power to punish for contempt is in its nature a trust reposed in the courts, not for themselves, but for the people whose laws they interpret and whose authority they exercise. (Watson v. Williams, 36 Miss. 331.) While a court which would hesitate to use the power when the circumstances warrant would be guilty of craven faithlessness to duty, it is always to be kept in mind that such power is imperious in its nature and summary in its execution. Under the law as it has been modified to harmonize with the genius of our institutions, the very judge who is libeled may become complainant, prosecutor, witness and judge. It countenances arrest without warrant, trial without jury, and punishment without the right of appeal. It is the nearest approach to autocratic power of any permitted under our form of government, and is not to be extended by implication. To confine its operations within the limits we have indicated will not impair the usefulness of the courts. Libel may still be prosecuted criminally or by civil action. “Respect to courts cannot be compelled; it is the voluntary tribute of the public to worth, virtue, and intelligence, and whilst they are found upon the judgment seat, so long, and no longer, will they retain the public confidence. If a judge be libeled by the public press, he and his assailant should be placed on equal grounds, and their common arbiter should be a jury of the country; and if he has received an injury, ample remuneration will be made.” (Stuart v. People, 3 Scam. (4 Ill.) 395.)
' The affidavit does not state facts sufficient to constitute contempt of court, and the judgment of the district court is annulled.