24 W. Va. 416 | W. Va. | 1884
Lead Opinion
It is claimed in the answers, that the proceedings in this case are irregular; that the rule is too vague and indefinite and ought only to have issued upon affidavit. There is no sufficient irregularity in the proceedings here, that would justify' the Court in discharging the rule, as clearly appears by the opinion of brother Snyder, which meets my entire approval. The main question, the one most discussed at the bar, is: Has the Court the power to punish summarily a constructive contempt of the character described in the-rule? It is insisted, that the power to punish for contempt is limited by sections 27 and 28 of chapter 147 of the Code. The said two sections are as follows:
“ 27. The courts and judges thereof may issue attachments for contempts and punish them summarily only in the cases*437 following: First, misbehavior in the presence of the court or so near thereto as to obstruct or interrupt the administration of justice; secondly, violence or threats of violence to a judge or officer of the court or to a juror, witness, or party going to, attending or returning from the court, for or in respect of any act or proceeding had, or to be had, in such court; thirdly, misbehavior of an officer of the court in his official character; fourthly, disobedience or resistance of any officer of the court, juror, witness, or other person to any lawful process, judgment, decree or order of the said court.”
“ 28. JSTo court shall, without a jury, for any such contempt as is mentioned in the first class embraced in the preceding section, impose a fine exceeding fifty dollars or imprison more than ten days. But in any such case the court may impanel a jury (without an indictment or other formal pleading), to ascertain the fine or imprisonment proper to be inflicted, and may give judgment according to the verdict.”
It is also insisted, that the Legislature had the right thus to limit the powers of courts over the subject of contempts and entirely prohibit the courts from punishing summarily such a constructive contempt, as is set up in the rule. Counsel cite the following authorities to sustain this position: State v. Storey, 79 Ill. 48; Wharton’s Pl. & Pr. §§ 957-961; Trial of Judge Peck, pp. 87, 91, 92, 295, 400, 426; Const. of State, arts. 3, 6 § 39; Ex parte Bollenan and Swartwout, 4 Cranch 93; Ex parte Hardy, 68 Ala. 303; State v. Woolley, 11 Bush 95; Whittem v. State, 36 Ind. 196; 20 Am. Law Reg. 432; 1 Wood. & M. 440; State v. Galloway, 5 Coldw. 326; Ex parte Hickey, 4 Sm. & M. 776; People v. Yates, 6 Johns. 337; Hummel’s Case, 9 Watts 431; 42 Cal. 412; Wheeling v. B. & O. R. R. Co., 13 Gratt. 40; Lindsay v. Com’s, 2 Bay 61; Hoover v. Wood, 9 Ind. 286; Ireland v. Turnpike Co., 19 Ohio St. 373; State v. Sauvinet, 24 La. Ann. 119; Hill v. Crandall, 52 Ill. 70; Lewis v. McElvain, 16 Ohio 347; Ex parte Schenck, 65 N. C. 353; Weaver v. Hamilton, 2 Jones’ Law 343; In re Daves, 81 N. C. 72; In re Walker, 82 N. C. 95; Cromartie v. Com’rs, 85 N. C. 211; Dunham v. State, 6 Iowa 245; State v. Anderson, 40 Iowa 207; Ex parte Edwards, 11 Fla. 185; Stuart v. People, 3 Scam. 395; Batchelder v. Moore, 42 Cal. 412; Rutherford v. Holmes, 5 Hun 317; Newton v. Com., 1 Grant’s
The case in 79 Illinois was a proceeding against Storey for contempt of court and publication of certain articles in The Chicago Times reflecting upon the action of the grand jury in finding indictments against him in said court. The court below found him guilty and sentenced him to imprisonment in the county jail. To this judgment he obtained a writ of error. Mr. Justice Scholfield in delivering, the opinion of the court, after referring to the fact that there was no allegation, that the publication of the articles is calculated to prevent the obtaining of a competent petit jury to try the respondent on the' several indictments, or that the judge, whose duty it will be to preside during such trial, will in anywise be affected thereby in the discharge of his duty, said:
“ The only question therefore is, assuming the articles to be libelous, whether the publishing of a libel on the grand jury or on any of the members thereof because of an act already done, may be summarily punished as a contempt. We 'do not understand the articles as having a tendency directly to impede, embarrass or obstruct the grand jury in the discharge of any of its duties remaining to be discharged after the publications were made. * ' * * All that it would seem could be claimed is, that the publications would cause disrespect to be entertained by the public for the grand jury and for its actions in the particular eases criticised and thereby to that extent to bring odium upon the administration of the law. That this is a grave offence, deserving of prompt and severe punishment might be conceded without in the slightest degree strengthening the position that it may be treated and punished as a contempt of court. * * It is not denied by counsel for respondent that courts may punish, as for contempt, those who do any act directly tending to impede, embarrass or obstruct the administration of the law, but they deny that any publication, however disrespectful, when applied to jurymen in regard to the manner in which they have already discharged a duty, does or is calculated to impede, embarrass or obstruct the administration of the law.
“ Authority máy be found in the text-books and in*439 English and American cases holding a doctrine at variance with this position. Thus for instance Blackstone says contempts of courts may be committed ‘by speaking or writing contemptuously of the court or judges acting in their judicial capacity; by printing false accounts, (or even true ones without proper permission) of causes then depending in judgment, and by anything in short that demonstrates a gross want of that regard and respect, which, when courts of justice are deprived of their authority, (so necessary for the order of the kingdom,) is entirely lost among the people.’ But the law in relation to contempts has never been held in any case decided hv this court to he so indefinitely broad, as it is thus settled by Blackstone. Our Constitution and.statutes certainly affect the question to some extent; and it is only in determining how, for they do so, that we have any difficulty. A statute of this State in force for many years provided, that the circuit and supreme courts should have power to punish contempts offered by any person to them while sitting, and for disobeying their process, rules and orders issued and made conformably to law. And this court held in Stuart v. The People, 3 Scam. 402, that this statute might he regarded as a limitation on the power of courts to punish for any other contempts, and newspaper articles commenting on the conduct of a juror, who was also the editor of a rival political paper to that in which the articles were published and reflecting contemptuously upon the judge published during the pendency of a trial for murder, were held not to authorize an attachment for contempt. It was said in that case in speaking of the power to punish, as. for contempt, in cases of mere libels upon the court having no direct tendency to interfere with the administration of the law:
“It does not seem necessary for the protection of courts in the exercise of their legitimate powers, that this one so liable to abuse should also be conceded to them. It may be so frequently exercised as to destroy that moral influencewhich is their best possession until finally the administration of justice is brought into disrepute. Respect to courts can not be compelled; it is the voluntary tribute of the public to worth, virtue and intelligence, and whilst they are found*440 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; aud if he has received an injury ample remuneration will be made.”
“In the more recent case of The People v. Wilson, 64 Ill. 195, a majority of the court held, that the publication of an article indirectly charging, that money had been used to procure a decision favorable to the defendant in a case pending before this court on writ of error, was a contempt, and the court accordingly imposed fines upon the editor and publisher of the newspaper, in which the offensive article was published.
“Authorities were referred to in support of the positions assumed by one or more of the members of the court in that case, and a train of reasoning pursued in the separate opinions delivered, from which the court bedow may have inferred, and probably did infer, assuming that the law had not since then been materially changed in this respect, that any libel upon the court or jury, whether tending directly to interfere with the administration of the law or not, might be punished for a contempt. But the decision turned upon the point, as will be seen by reference to the opinion of the chief justice, that the cause in reference to which the article was published, was then pending before the court, undecided, and that the article was calculated to and was designed to influence the members of the court in deciding it. Had the law therefore as then in force remained unchanged, it would be difficult to sustain the conviction of the respondent. But since the decision of that case the statutes have been revised, aud the provision in regard to contempts before quoted has been repealed, leaving no statute in force on that subject, except in regard to the enforcement ‘of decrees in chancery and the punishment of certain specific offences, such as the failure of juries to attend in obedience to summons, the failure of officers to make service and return of writs, &e.
“ Courts however possess certain common-law powers, subject to modifications that may have been imposed by our Constitution and statutes, among which is included that of*441 punishing for contempts. Diffei’ent opinions have been entertained by members of this court at different times in regard to the extent of such modifications; and wo feel constrained, in giving expression to our views in the present ease, to disagree to some extent with remarks made by some of the members composing the majority of the court in Wilson’s Case, supra.
“In our opinion it is not admissible, under our Constitution, that a publication however libelous, not directly calculated to hinder, obstruct or delay courts in the exercise of their proper functions, shall be treated and punished summarily as a contempt of court.”
The court held that the constitutional provision, “that every person may freely speak, write and publish on all subjects, being responsible for the abuse of that liberty; and in all trials for libel both civil and criminal the truth, when published with good motives and for justifiable ends, shall be-a sufficient defence,” applies to words spoken or published in regard to judicial conduct and character.
I do not understand this case as overruling People v. Wilson, but it docs dissent from the broad ground taken by some of the judges in that case. It is true that Wharton in his Criminal Pl. & Pr. takes the ground that a contempt of the character now under consideration cannot be summarily punished. But Bishop, 2 Crim. L. section 259, takes an opposite view of the question. In the celebrated case of Judge Peck, there was nothing decided, as I understand it, except that the Senate of the United States believed that the action of the judge was an error of judgment. It seems to me apparent that Lawless was not guilty of a constructive contempt unless a dignified criticism of the opinion of the court is such contempt; a position that would not he taken by any court.
In Woollen's Case, 11 Bush it was held that the right of self-preservation is an inherent right in the courts noj¿ derived from the Legislature, and cannot be made to depend upon the legislative will. Whether the Legislature might interfere with the manner, in which courts protect themselves from insults and indignities, was doubted and left an open question. This was a contempt to the court of appeals of Kentucky and was punished by a fine.
Whittem v. State, 36 Ind., shows, that the Legislature in that State has given, if it could give, power to the courts to punish either direct or constructive contempts. It seems to me the case of State v. Galloway, 5 Cold., properly decides
The case in 4 Smedes & Marshall, is not decided by the supreme court of Mississippi, and the opinion there pronounced and so much relied on in the argument before us was the opinion of a single judge of the supreme court pronounced in discharging a prisoner on writ of habeas corpus.
The court said in Batchelder v. Moore, 42 Cal. 412: “The power of a court to punish for an alleged contempt of its authority, though undoubted, is in its nature arbitrary, and its exercise is not to bo upheld, except under the circumstances and in the manner prescribed by law.” It did not then appear, that the statute did not confer ample power for the proper protection of the courts, and this authority therefore recognizes the right of the Legislature to limit and regulate but not to take away the right of self-protection from the courts.
In ex parte Schenck, 65 N. C. 853, it was held that “the act of April 4, 1871, declaring that no attorney who has been duly licensed to practice law shall be debarred or deprived of his license and right to practice, except apon conviction for a criminal offence or after confession in open court is constitutional; that said act docs not take away any of the inherent rights which are absolutely essential in the administration of justice.” This case does not overrule ex parte
In Walker’s Case, 82 N. C. 95, it was held, that it was unlawful to imprison for more than thirty days for a contempt of court, citing the statute. The constitutionality of the act is not discussed, and it seems to be admitted by the court that the Legislature has the right to regulate the power to punish for contempts
Again Cromartie v. Com’rs, 85 N. C. 211, was a construction of a statute without considering its constitutionality; audit washeld that “under the Act of 1868-9 chapter 117, the court has no power to punish a contempt already committed by an imprisonment of indefinite duration, but it may by proceedings as for contempt coerce obedience to any lawful order by imprisoningthe contumacious party, until he shall comply.”
Dunham v. State, 6 Ia. 245, was a writ of. error to the judgment of the circuit court, punishing for a contempt an editor for a libel on the court during a trial; and the court held, reversing the judgment, tbat“the publication of articles in a newspaper, reflecting upon the conduct of a judge in relation to cases pending in his court, and which war. disposed of before the publication, or the publication of the evidence and arguments of counsel in a case undisposed of, in which there was no rule of court prohibiting such publication, however unjust and libelous the publication may be, do not amount to contemptuous or violent behavior towards the court, under chapter 94 of the Code, nor arc they so calculated to impede, embarrass or obstruct the court in the administration of the law, as to justify the summary punishment of the offender under that chapter.” In that case the court said: “We are strongly inclined to think however, that the provisions of the Code upon this subject must be regarded as a limitation upon the power of the courts to punish for any other contempts. We can conceive of no possible state of case in which the exercise, of this power might become necessary for the protection of the court, or the duo administration of the law, that is not covered by these provisions. If such a case could by possibility arise, we woiikl not say that by virtue of its inherent power, the punishment might not bo inflicted.” They admit the right
In State v. Anderson, 40 Ia. 207, it was held, “that the publication by an attorney in a newspaper, criticising the rulings of tlie court in a case tried and determined prior to the publication does not constitute contemptuous or violent behavior toward the court, punishable as contempt. "Whether the publication if made daring the pending of the trial, would justify the court in punishing the writer for contempt, quccre.”
In ex parte Edwards, 11 Fla. 174, it was held: “In the absence of any statutory limitation or restriction, the power of the several courts over the matter of ‘ contempts’ is omnipotent and its exercise in any particular case is not to be questioned by any. other tribunal. It is the great bulwark established by the common-law for the protection of courts of justice, and for the maintenance of their dignity, authority and efficiency. By our statute the power to punish for £ con-tempts ’ is limited to fine and imprisonment, the fine in any-case not to exceed one hundred dollars, or imprisonment thirty days, and this statute is made to ajjply as well to courts of equity as to courts of common-law. As applicable to courts of chancery, the restrictions in the statute must be confined to such acts as are the subject, merely of punishment. It never was designed to deprive that court of its ancient authority to enforce its affirmative orders or decrees, or any order or decree, whether affirmative or otherwise, which may he pronounced at the final hearing of the cause.” The court says of the power of courts over the subject, p. 186: “This is the great bulwark established by the common-law for the protection of courts of justice, and for the maintenance of their dignity, authority and efficiency, and neither in England nor in the United States has this unrestricted power been seriously questioned.”
In Rutherford v. Holmes, 5 Hun 317, it is held by the supreme court of Hew York, not the court of appeals, which is the court of last resort: “The power to punish for contempt is, in its nature, an exception to the provisions of the Constitution, and it cannot he extended in the least degree, beyond the limits which has been imposed by statute.” This was a review of a contempt-proceeding by a justice ofthepeaee.
In delivering the opinion of the court Carpenter, J., said : “But independently of the statute we think the power is inherent in all courts. A court of justice must of necessity have the power to preserve its own dignity and protect itself. In re Cooper 32 Vt. 257; State v. Woodfin, 5 Ired. L. 199; Stephen’s Case, 404. Many other cases might be cited to the same point but it is unnecessary, as we aware of no authority directly in point to the contrary.”
I have reviewed the strongest eases cited by counsel to sustain their position, and deem it unnecessary to refer to their other citations more particularly.
Judge Cooley in his work on Torts 424, says: “It has also been held in many cases that the publication of an article in a newspaper commenting on proceedings in courtthen pending and undetermined, or upon the court in its relation thereto, made at a time and under circumstances calculated to affect the cause of justice in such proceedings, and obviously intended for that purpose, may be punished as a contempt, even though the court was not in session when the publication was made. Such a publication when made, however, is a continuous wrong, as much as would be something of a physical nature, planned in advance ' and so arranged, as that its natural and necessary results should be to throw the court into disorder and confusion when its sitting should commence.”
In Spalding v. The People, 7 Hill 301, it was said by Nelson, C. J.: “The remedy by indictment is oftimes -found too tardy for the exigency of the case; and hence the law has always authorized the mere summary proceeding by attachment as for a criminal contempt, whereby the offender is arraigned at once upon the charges and the course of justice more promptly vindicated and sustained. As has been well remarked in reference to this subject, laws without a competent authority to secure their administration from disobedience and contempt would be vain and nugatory. Apower in the courts of justice therefore to-suppress such contempts,
In Yates v. Lansing, 9 Johns. 417, Platt, Senator, said: “A contempt is an offence against the court as an organ of justice; and the court can rightfully punish it on summary conviction, whether the same act be punishable as a crime or misdemeanor, on indictment or not. * * * A conviction on indictment will not purge the contempt; nor will a conviction for contempt be a bar toan indictment.”
In Rutherford v. Holmes, 66 N. Y. 369, it was held: “A court of a justice of the peace has no power to adjudge a person in contempt and to punish him therefor save in the cases prescribed in the statute.” Andrews and Miller, Judges, dissented. The two dissenting judges must have thought that even a justice of the peace could not bo by statute deprived of- his necessary power to punish for certain con-tempts.
In Matter of Kerrigan, 38 N. J. L. 344, it was held: “ The power to punish by commitment for contempt is a power belonging only to judges of certain courts, and does not arise from the mere exercise of judicial functions. The power so far as it may bo exercised by judicial officers is an incident to a court, belonging alike to civil and criminal jurisdiction, but not extending at the common-law, below such as are courts of record, recognized in the common-law.”
In Cartwright's Case, 114 Mass. 238, Gray, C. J., said: “ The summary power to commit and punish for contempts tending to obstruct or degrade the administration of justice is inherent in courts of chancery and other supreme courts as essential to the execution of their powers, and to the maintenance of their authority, and is a part of the law of the land within the meaning of Magna Charta and of the twelfth article of our declaration of rights.”
In State v. Matthews, 37 N. H. 450, it was held, that “the authority to punish contempt is a necessary incident, inherent in the organization of all legislative bodies, and all courts of law or equity.”
In Sturo’s Case, 48 N. H. 428, it was held : “ The publication of an article in a newspaper printed and circulated in
In Morrison v. McDonald, 21 Me. 550, it was held: “ The power to commit for contempts of court is incidental to all courts of record.”
In Gaudy v. The State, 13 Neb. 445, it was held: “The district court has authority to punish by proceedings for contempt, any person who attempts to corrupt or' unlawfully influence jurors in a ease pending before the court.” It was further held, that “as the proceeding was solely to protect justice from obstruction,The accused is not entitled to a trial by jury.”
In State v. Williams, 2 Spee. 26, it was held: “The seventh and eighth clauses of the act of 1839 in relation to the office of constable, which prescribe the proceeding by indictment in eases of official misconduct, do not supersede or impair a judge’s common law jurisdiction over the subordinate officers of court, so as to deprive him of the power without indictment of punishing a constable for contempt, or of ordering him to be put under a rule to show'cause why he should not be stricken from the roll for official misdemeanor coming under the observation of the judge himself, or which may be brought to his knowledge through official channels. The remedy provided by this act is rather to be regarded as cumulative than exclusive.”
In the old case of Respublica v. Oswold, 1 Dal. 319, decided by the supreme court of Pennsylvania in 1788, it appears from the opinion of McKean, C. J., that it was a motion for an attachment against Elcazer Oswald printer and publisher of the Independent Gazetteer. That an action for libel had been instituted in that court, in which Andrew Brown was plaintiff and said Oswald defendant; that a question with respect to bail in the action had been agitated before one of the judges, from whose order discharging the defendant on common bail the plaintiff had appealed to the court; and that
In Passmore’s Case, 3 Yeates 441, decided by the same court in 1802 it was held: “ The publication of a paper to prejudice the public mind in a cause depending is a contempt, if it manifestly refers to the cause though it does not expressly appear on the face of the writing. But however libelous the' paper may be the court can have no cognizance of it in a summary way, unless it be a contempt. ” In that case the publication related to the plaintiff in a civil suit against said Passmore. Shippen, C. J., said: “However libelous the publication complained of may be, we have no cognizance of it in this summai’y mode, unless it be a contempt of the court. 2 Atk. 469. But we are unanimously of opinion that in point of law it is such a contempt, and readily concur with Lord Hardwieko that ‘ there cannot be anything of greater consequence than to keep the streams of justice clear and pure, that parties may proceed with safety both to themselves and their characters.’ Ib. 461. If the minds of the public can be prejudiced, by such improper publications, before a cause is hoard, justice cannot be administered. The defendant has set at naught the advice we gave him when we ordered the attachment. He has made no atonement whatever to the person whom he has so deeply injured, and he' can only blame himself for the consequences. The judgment of the court is, that the defendant pay a fine of fifty dollars to the commonwealth, and be imprisoned in the debtors’ prison for thirty days, and afterwards until the fine and costs are paid.”
On April 3, 1809, the Legislature of Pennsylvania passed an act, the second Section of which provided, that “publications out of court respecting the conduct of the judges, officers of the court, jurors, witnesses, parties or any of them, if in and concerning any cause pending before any court of this commonwealth, shall not be construed a contempt of the said court, so as to render the author, printer, publisher, or either óf them liable to attachment and summary punishment for the same, &c., but authorizes a proceeding by indictment for the same, and gives the party aggrieved his action at law to recover damages for the injury sustained.”
In the ease of Hummel and Bishoff, 9 Watts 416, a section of the contempt-law was construed on writ of error, and it was held the defendants were officers within the meaning of the act of Juno 16, 1836, restricting the powers of the several courts to issue attachments, and to inflict summary punishments for contempts of court, and affirmed the judgment of the court below, summarily punishing the defendants.
It will be seen that in none of the numerous authorities, which we have cited, has it been expressly held, that it is within the legislative power to so limit the right of the courts of record, as to take from them their inherent power to punish summarily constructive contempts, when the exercise of such right is essential to the administration of justice. But in a number of cases it has been held that the Legislature cannot impose such limit.
In Hughes v. The People, 5 Col. 436, it appears that the Code of Colorado provided, that “the following acts or omissions shall be deemed a contempt:” (then follow the classes). The court evidently did not regard the contempt as coming within the provisions of the statute; and Stone, J., in delivering the opinion of the court, said: “ Aside from the inapt language and faulty manneifcof expression these enumerated causes of legal contempt in the Code are much narrower than the common-law.” Then after quoting the language of Breese, J., in Stuart v. People, 3 Scam. 395, that the language of the statute might with great propriety, “be regarded as a limitation upon the power of the court to punish for any other contempt,” further says, “while we do not think upon the whole case this language intended to declare a doctrine so broadly as is contended for it, there are on the other hand ample authorities for the more reasonable doctrine, that such a statutory enumeration of causes as is found in our Code, when applied to the ever varying facts and circumstances, out of which questions for contempt arise, cannot be taken as the arbitrary measure and limit of the inhei’ent power of a court for its own preservation and for that proper dignity of authority, which is essential to the effective administration of justice.”
In People v. Wilson, 64 Ill. 195, it was held that “the power to punish for contempts is an incident to all courts of justice independent'of statutory provisions; that the statute which declares that the supreme court ‘shall have power to punish contempts offered by any person to it while sitting’ merely affirms a pre-existent power and does not attempt to restrict its exorcise to contempts in the presence of the court but leaves them to he determined by the principles of the common-law. And if a statute should be regarded as a limitation upon the power of the court to punish for any other contempts than those committed in its presence, yet in this power would necessarily be included all acts calculated to impede, embarrass or obstruct the court in the administration of justice. Such acts would be considered as-done in the presence of the court.” And the supreme court of Illinois in that case punished by attachment the publisher and editor of a newspaper for publishing in a city of the State remote from where the court was sitting a charge of bribery against the court ou account of its action in a case pending on a writ of error.
In ex parte Moore, 63 N. C. 397, the supreme court of Korth Carolina assorted the right to punish summarily for contempt an attorney at its bar for a publication of an article in a newspaper reflecting on the court and published when the
In the case of State v. Morrill, 16 Ark. 384, the court directly holds, that a statute taking away the right of a court summarily to punish for a constructive contempt is unconstitutional. The court in an able and elaborate opinion by English, C. J., held, that it had the constitutional power to punish as for contempt for the publication of a libel made during a term of the court in reference to a case then decided and imputing to the court officially bribery in making the decision; “such porver being inherent in courts of justice springing into existence upon their creation as a necessary incident to the exercise of the powers conferred upon them,” and that “the Legislature may regulate the exercise of but can not abridge the express or necessarily implied powers granted to this court by the Constitution;” that the statute (Digest, chapter 36 section 1) “so far as it sanctions the powers of the courts to punish as contempts the acts therein enumerated, is merely declaratory of what the law was before its passage;” that the prohibitory clause is entitled to respect as an opinion of the Legislature but is not binding on the courts; that “by the common-law the courts possessed the power to punish as for contempt libelous publications upon-their proceedings, pending or past, upon the ground that they tended to degrade the tribunals, destroy that public confidence and respect for their judgments and decrees so essentially necessary to the good order and well being of society, and most effectually obstructed the free course of justice;” that “when the supreme court was created by the Constitu
In Dandridge’s Case 2 Va. Cases 408, it appears that the circuit judge being about to enter the court-house for the purpose of opening court, Dandridge, who was standing at the door, grossly insulted him, charging him with corruption and cowardice in delivering an opinion in a case at a previous term of the court, in which Dandridge had some interest. Proceedings for contempt having been instituted against him, the case was adjourned to the general court of Virginia on account of its importance, novelty and difficulty. By the general court the whole doctrine of constructive contempt is discussed thoroughly and ably, and the conclusion was reached that the conduct of the defendant was punishable as a _contem.pt.
It is conceded here in the argument that it is not in the power of the Legislature to take from courts the inherent power possessed by them to punish contempts' in the face of the courts; hut it is insisted that the Legislature may at will deprive the courts of the power to punish summarily constructive contempts such as that described in the rule. At common-law, as clearly appears in Dandridge’s Case, the power to punish for such constructive contempts was as much an inherent because a necessary power, as to punish for direct contempts; and as we have seen, this position is abundantly sustained by authority. Does not the reason for the existence of the power as much obtain in the one case as the other? If an attorney at the bar should charge the court in its presence with being'bribed to decide the cause under argument against his client, no one would doubt for a moment the right of the court to summarily punish him for such contempt. "Why? Xot because he had interrupted the court in its despatch of business; for there was no interruption in the hearing of the cause. • The court Avould have the right to punish the offender, because the language used was designed and calculated to destroy the confidence of the people in the court and to degrade the court in the opinion of the public and to corrupt the streams of justice. In such case the court would be wanting in respect for the people, whose servant it is, if it
It was well and truly* said by the high court of errors and
We are well aware that the trust reposed in us to protect the people’s court from degradation is a delicate as well as a sacred trust. The power claimed, it is said, is arbitrary and liable to abuse. That is no reason Avhy the power should not exist and be reposed somewhere. The few instances in which this power has been used during the last century, shows that it was wisely placed and may be safely left in the hands of the courts. It is well established by the authorities, that the power is inherent in courts of justice to summarily punish constructive as well as direct contempts. And in this country, where the courts are in the divisions of power by the Constitutions of the several States constituted a separate and distinct department of government clothed with jurisdiction and not expressly limited by the Constitution in their powers to punish for contempt, the inherent power that is thus necessarily granted them cannot bo taken away by the legislative department of the government. The supreme court of Arkansas in 16 Ark. page 390, said: “The Legislature may regulate the exercise of, but cannot abridge the express or necessarily implied powers granted to this court by the Constitution. If it could, it might encroach upon
It is not claimed, that the power to punish contempts need be exercised in this country to the same extent allowed by the common-law. Mr. Justice Scott, in Neel v. State, 4 Eng. 263, said: “It has never been contended in this country, that the common-law, although it is our birthright, and in force among us, without express recognition by our Constitution and laws, was over actually in force in all its length and breadth, but only to an extent that was not wholly inconsistent with these great principles,'upon which our free-institutions, purely American, have been reared and maintained. So these doctrines, which we are considering, (powers of courts to punish contempts,) in being recognized by the courts must be regarded as having received a corresponding abatement of those of its lineaments which are at open war with the nature and character of our Constitution, and the actual state of things among us, under its legitimate operation, or it would be an exotic that could not germinate in our soil.” Therefore courts will tolerate the regulation of the power, so that the Legislature does not by such regulation substantially destroy the efficiency of the court.
The courts must have just enough power and will exercise it for their own protection, and they want and demand no more. 'Whether or no the Legislature in its regulation has left sufficient power for the purpose, the court, which is called to exercise it, must be the sole judge, unless its judgment may be reviewed, and in that case the court of last resort would be the exclusive judge. There is no disposition in the courts to seek opportunities to exercise this power; and it will not be exercised, unless there is a necessity for it. When a judge remembers that he has no right to'avenge in this manner individual wrongs, but only an injury to the court, the people’s court, it becomes a matter of stern and inflexible duty, from the performance of which under his official oath he dare not shrink. For he well knows, that as
"We have thus tar been considering whether the Legislature has the right to limit the power of courts created by Constitutions. It is very different as to its power over courts of its own creation.
In ex parte Robinson, 19 Wall. 505, it was held that Congress had the power to limit the right of the circuit and district courts of the United States to punish contempts because they were the creations of Congress. Mr. Justice Field in delivering the opinion of the court in perfect accord with the authorities we have cited said: “The power to punish for contempts is inherent in all courts; its existence is esseutial to the promotion of order, injudicial proceedings, and to the enforcement of the judgments, orders and writs of the courts, and consequently to the due administration of justice. The moment the courts of the United States were-called into existence, and invested with jurisdiction over any subject they become possessed of this power. But the power has been limited and defined by the act of Congress of March 2, 1881. The act in terms applies to all courts; whether it can be held to limit the authority of the supreme court, which derives its existence and powers from the Constitution, may perhaps be a matter of doubt. But that it applies to the circuit and district courts, there can be no question. These courts were created by act of Congress. Their powers and duties depend upon the act calling them into existence, or subsequent acts extending or limiting their jurisdiction. The act of 1831 is therefore to them the law specifying the cases in wdiich summary punishments for contempts maj' be inflicted.”
We have already seen that the power of courts created by the Constitution to punish contempts is an inherent power without which they might wholly fail in the object of their creation. When a courtis created and exists by some legislative act, it follows that the power which creates, must confer, and can take away its jurisdiction at its pleasure. As a consequence of this, the same power, can define contempts against, and prescribe the measure and mode of punishment, or even withhold altogether from such court, the power to punish the same. These are not questions of power, but of expe
It is contended, however, that the general court of Virginia in the case of the Commonwealth v. Deskins, &c., reported in 4 Leigh, decided, that the act of the General Assembly, passed on April 16th, 1851, defining contempts, and limiting the power of the courts to punish the same, deprived the courts of the power to punish summarily any contempts, except those therein enumerated. It is not necessary to contend that section 25 of that act, was not warranted by the Constitution of Virginiá, adopted in 1776, or by the amended Constitution adopted on the-day of April, 1830 ; for by both of said Constitutions, the jurisdiction of all courts created or existing, was conferred by legislative act, and not by constitutional provision. The case of Commonwealth v. Dandridge, already referred to, was decided by the general court in 1824, and that of Commonwealth v. Deskins, &c., in 1834. The case of Dandridge was decided under the Constitution of 1776.
Before the Revolution the “general court” was the supreme criminal tribunal. Before the reign of James II. .the colonial assembly exercised appellate jurisdiction in civil cases. In 1683 the King directed that appeals should be allowed from the inferior courts to the general court. Up to the time of the Revolution, this court consisted of the Governor and Council for the time being, any five constituting a court. It had jurisdiction to hear and determine all causes, matters and things whatsoever, relating to or concerning any person or persons, ecclesiastical or civil, or to any person or thing whatsoever the same should be, whether brought before them by original process, appeal from any inferior court, or by any other way or means whatever, provided, the matter in controversy was of the value of ten pounds sterling or two thousand pounds of tobacco. It also had exclusive criminal jurisdiction as a. court of oyer and terminer of all cases of free persons, wherein the judgment
The Constitution of 1776 neither created any court, nor prescribed or limited its jurisdiction. It recognized the potential existence of the supreme court of appeals, and general court, judges in chancery, judges in admiralty by providing for the election of judges thereof, and fixing the tenure of their offices during good behavior; and by article 15, it in like manner recognized the existence of justices of the peace by providing for their appointment. It contained no provision prescribing or limiting the jurisdiction of any of said courts, save only that by section 16 it provided that certain impeachments should be tried in the general courts, and that impeachment of judges of the general court should be tried in the court of appeals. In all other respects the jurisdiction of each of said courts, remained to be prescribed and limited, according to law. To none of these courts was any other constitutional jurisdiction granted than for the trial of impeachments. The court of appeals was first established by chapter 22 of the Acts of the General Assembly, passed in May, 1779, and was composed of the judges of the high court of chancery, of the general court, and of the court of admiralty, and their jurisdiction was therein prescribed. The high court of chancery was established hy chapter 15 of the Acts of the General Assembly, passed in October, 1777, and its jurisdiction was defined as a court ot general chancery jurisdiction. By chapter 17 of said Acts, passed in October, 1777, the General Assembly established a court of common-law with general jurisdiction in all matters, civil and criminal, called the general court, and prescribed its jurisdiction. By chapter 67 of the Acts of the General Assembly, passed in January, 1788, district courts were established as courts of general common-law jurisdiction in all matters, civil and criminal, and their jurisdiction prescribed and limited. These district courts -were in their turn
The argument therefore of the respondent’s counsel in favor of the constitutionality of sections 27, 28, 29 and 30 of chapter 147 of the Code of West Virginia derived from the decision of the general court of Virginia in the ease of the Commonwealth v. Deskins, &c., falls to the ground, for it does not follow that if that statute was constitutional in Virginia, where her courts were created and existed, and the jurisdiction thereof conferred by statute, that the same is constitutional in this State where the courts are created and their jurisdiction is conferred by constitutional provision and not by statute.
That statute which has been handed down and is now found in our Code, under the changed condition of the State government might be considered constitutional now as to the circuit court, for under the principle before announced, it might be deemed a mere regulation of the power of courts to punish as for contempt, as it leaves power to the circuit courts by indictments under their own supervision to punish as for constructive contempts of the character which we are considering. Whether such power under the Code is sufficient for the protection of said courts, we will not now determine, leaving that question to be decided when occasion may require. hTeitlier is it necessary to decide whether the Legislature can limit the power of this Court to punish for constructive contempts, as it is evident to us it has not attempted todo so. Wo would not upon settled principles decide an act of the Legislature unconstitutional if by any construction it could be made consistent with the Constitution. The whole scope of the statute shows clearly that it was intended to apply to inferior courts and not to the Supreme Court of Appeals. Section 28 provides for the punishment of direct contempts without a jury by a fine not exceeding fifty dollars, and imprisonment not more than ten days. “But” (it further provides) “in any such case the
Is the publication complained of here a contempt of this Court? It seems to us that the books do not furnish a clearer case of contempt. It is a contempt, because it charges three of the judges of this Court, acting in their judicial capacity, with an oflence, which, if true, is just ground of impeachment; with an offence calculated to degrade the Court and destroy all confidence of the people therein. If to charge three of the judges of this Court with having attended a political caucus and advised a certain action by the same, coupled with the promise, that as a Court they would sustain the action of the caucus, and then in pursuance of that pledge made more than a year ago, the same judges as a Court were about to decide the case then before them as the caucus desired, is not a contempt of the Court, then it seems to us, that nothing would constitute a contempt. If to charge a court, or a majority of its members with having prostituted their high and sacred trust to base political purposes is not a contempt, then we may truly say that such a thing does not exist. The article ou its face shows, moreover, that it was intended to influence the decision of the Court in the cause, to which reference is therein made, and which was then pending, or to prevent the Court from deciding it at the present term. That it had no such effect, is not material, so far as the contempt is concerned. It first says: “ The campaign is shaping itself. It leaks out that the Supreme Court of Appeals is to be brought to the rescue in a decision affirming the unconstitutionality of the exemption act. and declaring the supplemental assessment order to be lawful and right. This is in effect what was promised by the three Supreme Court judges to the Democratic caucus
In every aspect of the-case the publication is clearly a contempt of this Court. Can such a publication be palliated or excused ? Far be it from us to take away the liberty of the press, or in the slightest degree to interfere with its lights. The good of society and of government demands, that the largest liberty should be accorded the press, which is a power and an engine of great good; but the press itself will not for a moment tolerate such licentiousness as is exhibited in said editorial. The press is interested in the purity of the courts, and if it had no respect for the judges on the bench, it should respect the Court; for when the judges now on the bench shall be remembered only in the decisions they.have rendered, the Court will still remain, it never dies; it is the people’s Court and the press as the champion of the people’s rights, is interested in preserving the respect due to the Court.
Have the defendants purged themselves of the contempt? The defendant, Frew, disclaims all knowledge of the pendency of the suit or that the article was published until he read it in the paper. We think he cannot be entirely acquitted, but that he should suffer a light punishment. He should not allow the paper, of which he is the publisher, to
The fact that the respondent in his answer disclaims any
As a further excuse he says the Court announced at the time the alternative writ issued in the mandamus case, that the respondent must be ready to proceed with the case on the return day, and directed the clerk to so inform the respondent; and that he did not at the time the article was published know that the law required the assessor’s books to be returned before the first of July. He must have known when the.article was published, that the Court had given the respondent six days for preparation after the return day ot the writ. Tie says the Court did not announce its reason for the necessity of having the case decided with despatch. This all shows how ready the defendant was to do the Court injustice. If he had proper respect for courts, he would presume they had good reasons for their judicial action, and that it might not be necessary at all times to give those reasons.
There is nothing in said Hart’s answer to palliate his oftence, but it is aggravated instead. This is a case in which the court would be justified in both fining and imprisoning 0. B. Hart. The contempt is of the most aggravated character. The books fail to show one that is any more so. But a majority of the Court is of opinion, that the ends of public justice will be attained in this ease by the imposition of a fine. Bor more than a century so far as I know, but one case of constructive contempt is found in the Virginia reports, and none in this State until now; and it is sincerely hoped that another centennial will arrive before th e necessity for punishiug for such a contempt will again arise. As this is the first case of this character in this State, we dislike to be severe. We would gladly discharge the rule, if we could. It never would have issued, had we dared consult our feelings in the matter. It is the unanimous judgment of the Court, that an attachment issue against John Brew and C. B. Hart, returnable forthwith.
Concurrence Opinion
concurring:
As the questions presented by this case are not only of great importance but of much delicacy, it may be, perhaps, more satisfactory both to myself and to others that I should briefly state, at least, some of the reasons which lead me to the conclusions on which the Court founds its judgment.
Before entering upon the merits it- may be proper to notice the objections made by the respondents to the rule awarded against them. They assert that the rule was improvidently awarded because:
First — It was not entered upon a complaint or other information supported by affidavit; and second, It was not set forth either in the rule or in the communication upon which it, at least in part, purports to be based, that respondents were, at the time of the publication of the article complained of, editors, proprietors and publishers of the Intelligencer, or in any manner connected therewith.
"While the rule does not, in terms, state that respondents were the proprietors and publishers of thn Intelligencer on the day the article complained of appeared in that paper, it does set forth the article in full and calls upon them to appear and show cause, “ why they and each of them shall not be attached for their contempt of this Court in publishing said article.” This plainly and explicitly notified them of the very cause and nature of the offence and by the strongest implication informed them that they were the persons charged with its commission.
The procoedure in cases of this character is various in different jurisdictions and the discretion of the presidiug judge is so broad even in inferior courts that it will seldom be revised by the appellate court—Androscoggin R. R. Co. v. Androscoggin, 49 Me. 392; Bates’ Case, 55 N. H. 326.
In Dandridge’s Case, 2 Va. Cas. 408, decided in 1824, the general court, after a very full and able review of the law on the subject, both upon reason and authority, decided that, “an attachment for contempt has no other object than to bring the party into court. When the contempt is in open court, the party being present, there is no need of any process to bring him in, nor any need of interrogatories to ascertain what has occurred in open court.
The contempt in that case was committed in the presence of the judge, on the court-house steps, just as he was going upon the bench to open court; but the court not being then actually in session, it was held to be not a direct but a constructive contempt. The proceedings in the case against the defendant were instituted by the court without either rule or attachment. The defendant being in court, the judge made a statement of the facts constituting the contempt which was read in open court and the evidence of sundry witnesses as to the facts was also taken in open court and sworn to in the presence of the defendant. The evidence having been thus taken, on the motion of the attorney for the commonwealth and of the defendant the cause was continued until the next day and the defendant directed to show cause on that day “why he should not be committed.or fined for his said contempt.” These were all the ■ proceedings had in that case either to inform the defendant of the charge or to bring him befoie the court and the general court held them to be sufficient. •
In Moore’s Case, 63 N. C. 397, the court entered an order stating, that “the court being informed of a certain libelous publication directly tending to impair the respect due to the authority of the court,” &c. Upon this order proceedings by rule for a contempt were taken against the persons who had signed said publication. It does not appear how* the court became informed of said publication. The defendant appeared and protested in his answer that the rule “ought not to have been made in his absence; without notice, and without affidavit or other legal proof of the facts upon which
Many other authorities might be produced to show that' thejudges may, not only in cases of contempt in the face of the court but in cases of constructive contempt, upon their own motion and without affidavit or other sworn statement, award rules against the offenders. In direct contempts it is almost uniformly the practice for the judge to act on his own information. He acts upon the evidence of his own senses. 'And in the ease of constructive contempts, if he has the same kind of evidence, he is equally at liberty to act upon it. In some cases the character of the offence may be more complicated and less susceptible of furnishing such proofs of its existence.as will authorize the court to act upon it. In such cases a sworn statement is necessary and should always be required as the foundation of the rule. But a publication in a newspaper is not of that class, and especially is such the case when the publication charged as the contempt is an editorial article in a newspaper published in the very city or town in which the court is at the time being held. Such a publication furnishes not only the evidence of its character
The introduction by the defendants of the communication of Mi’. Russell in reference to what occurred between him and the President of this Court, in view of the precedents and the law in proceedings of this character, was gratuitous and irrelevant and could not possibly subserve any useful purpose. It was plainly the right, if not the positive duty, of the President of the Court, or any member with the assent of the others, to institute proceedings for contempt, and a fortiori, the President had the clear right to confer with the counsel who was about to call the attention of the Court to the facts requiring such proceedings. While said communication was thus unnecessarily and improperly brought before the Court, I do not wish to be understood as impugning the motives of counsel in permitting it to be done, as they doubtless regarded it material:
In The State v. Morrill, 16 Ark. 384, the rule was issued on the unsworn statement of a member of the bar and in all respects the proceedings in that case were followed in the one at bar. But if there could be any question about the legality and sufficiency of the rule in this case, the respondents by submitting to answer and admitting the fads necessary'to support the attachment, thereby waived all preliminary objections. It would certainly have been utterly useless if not absurd for the Court, after the respondents had fully answered and admitted all the facts to make out the offence, to award a rule, as it could have done at once, requiring them to admit the facts a second time. Under the circumstances I am clearly of opinion, that the objections to the rule and mode of proceedure are plainly untenable.
After the party is before the Court thoproceedinggs are to be regarded and entitled as of a criminal character—State v. Harper’s Ferry Bridge Co., 16 W. Va. 865; Ruhl v. Ruhl, supra 279. And where the offence is of agrave nature, if evidence beyond the examination or answer of the defendant
Upon the merits of this case it may be stated as a proposition of law unquestioned and unquestionable, that by the common-law of England as well as by the uniform decisions of the courts of this country, courts have the inherent power to punish for contempts in a summary manner, and that this power is an essential element and part' of the court itself which cannot be taken away without impairing the usefulness of the- court, because it is a power necessary to the exercise of all others. This much has never been disputed. But there has been in the past and still is much difference of opinion as to the character of contempts to which this doctrine applies, and as to the right of the Legislature to limit this power in courts created by written Constitutions. I do not propose to consider these questions as they have been fully discussed in the opinion announced by the President of this Court.
Apart from any statutory enactment, I regard it as the settled law of Virginia and this State, fully established by the able opinions and the decision of the general court of Virginia in Dandridge’s Case, 2 Va. Cas. 408, that the courts of these States possess the power to punish, in a summary manner, both direct and constructive contempts. The right to do so in cases of the first class no one denies. In respect to the other class, constructive contempts, I think, the right is fully established by the case just cited. That was a case of constructive contempt, so held to be by the court. The court, after quoting from Blackstone’s Com., to show that contempts “are either direct, which openly insult or resist the powers of courts, or the ]icrsons of the judges loho preside,” 'and that among the latter are those which .consist “in speaking or writing con-
This decision was made in 1824, by' a unanimous court composed of some of the most eminent and conservative judges that ever adorned the bench of Virginia. I think, therefore, it may be safely stated, that this decision declares the law of Virginia as it existed in 1824, and as no subse-
On April 16, 1831, the General Assembly of Virginia passed an act which was amended by chapter 24 section 1, Acts 1847-8, and was subsequently incorporated in the Codes of that and of this State. The provisions of said statute are substantially the same in each of the acts referred to and as they are now in our Code, chapter 147. Section 27 of said chapter provides that, “the courts and judges thereof may issue attachments for contempts, and punish them’summarily, only in the cases following:” (Here it mentions four classes of contempts all of which are either direct or in relation to the officers and process of courts). Sections 28 and 80 are as follows :
“ 28. Ho court shall without a jury, for any such contempt as is mentioned in the first class embraced in the preceding section, impose a fine exceeding fifty dollars or imprison for more than ten days. But in any such case the court may impanel a jury (without an indictment or formal pleading) to ascertain the fine and imprisonment proper to be inflicted, and may give judgment according to the verdict.”
“ 30. If any person by threats or force, attempt to intimidate or impede a judge, justice, juror, witness, or an officer of a court, in the discharge of his duty, or to obstruct or impede the administration of justice in any court, he shall be prosecuted as for a misdemeanor, and punished by fine and imprisonment, or either, at the discretion of a jury.”
To hold that this statute applies to the Supreme Court of Appeals of this State would be, in effect, to deprive that court of the right 1o punish summarily any constructive contempts of any kind whatever. It has no jurisdiction or machinery to try misdemeanors and the statute declares that such con-tempts shall be prosecuted in no other manner. As we have seen, by the common law of the State this Court had the power to punish such contempts. This, was declared to be one of the inherent and necessary powers of the court. This
In the class of constructive contempts mentioned in section 30, the punishment of which in airy maimer is, as we have shown, absolutely denied to the Appellate Court, the inferior courts still have under the statute an efficient means of punishing' They have the right at any time to call before them both grand and petit juries and under the statute they may with but little delay — almost as summarily as before the statute — punish such contempts. The statute as to such courts may well be regarded as a regulation and, perhaps, a
Having thus shown that this Court has the power to punish for contempts, it must not be overlooked that this power can be justified by necessity alone, and should rarely bo exercised, and never, except when the necessity is plain and unmistakable. It is not given for the private advantage of the judges who sit in the Court, but to preserve to them that respect and regard, of which courts cannot be deprived and maintain their usefulness. It is given that the law may be administered fairly and impartially, uninterrupted by any influence which might affect the rights of the parties or bias the minds of the judges — that the Court may command that respect and sanctity so essential to make the law itself respected — and that the streams of justice may be kept pure and uncorrupted. Tf the Court is scandalized and its motives or integrity impeached, in regard to official acts or conduct, the consequences cannot be otherwise than baneful. The administration of the law is embarrassed and impeded, the passions often unconsciously roused, the rights of the parties endangered, and a calm and dispassionate discussion and investigation of causes prevented.
The public have a profound interest in the good name aud fame of their courts of justice, and especially of the courts of last resort. Everything that affects the well-being of organized society, the rights of property, and the life and liberty of the citizen is submitted to their final decision. The confidence of the public in the judiciary should not be wantonly impaired. It is all-important to the due and efficient
It must be and is cheerfully conceded that public journals have the right to criticisé freely the acts of all public officers —executive, legislative and judicial. It is a constitutional privilege that even the Legislature cannot abridge. But such criticism should always be just and with a view to promote the public good. 'Where the conduct of a public officer is wilfully corrupt, no measure of condemnation can be too severe, but when the misconduct, apparent or real, may be simply an honest error of judgment the condemnation ought to bo withheld or mingled with charity. As said by Holt in his work on Libel, chap. 9, “It is undoubtedly within the natural compass of the liberty of the press, to discuss in a decent and temperate manner, the decisions and judgments of a court of justice; to suggest even error; and provided it be done in the language and with the views of fair criticism, to censure what is apparently waong; but with this limita-tation, that no false or dishonest motives be assigned to any party..” These views are in my judgment sound and these rights should be cheerfully accorded' to the press in this free and enlightened country.
I know full well that respect to courts or judges cannot be compelled; “respect is the voluntary tribute of the people to worth, virtue and intelligence, and while these are found on the judgment seat, so long and no longer will courts retain the public confidence.” But the people have placed the judge in a position in which he unavoidably comes in conflict with the jealousies and resentments of those upon whose interest he has to act; his character, virtue and intelligence, however pure and unselfish, are not always a protection against the prejudices and passions of such as conceive themselves injured by his legitimate and proper official acts, and when assailed by such, if he may not punish them as a court, “he will be reduced to the alternative of either sub
The people, for the benefit of society and the promotion of law, order and justice, have placed the judge in a situation in which by reason of his office and duties as such, he is exposed to assaults and unjust suspicions which he would not have to incur as a private citizen. These assaults ’ and suspicions do not attach to him as a citizen. It is against these that the power of the court should defend him, and not from those which attach to him as a private person merely. In this country there are and ought to be no privileges but such as exist for the public good. Uo privilege can be claimed or admitted for a judge except such as pertain to. his official acts. Attacks upon these it is neither his duty nor his right as a private citizen to defend himself against. These are the acts of the people which they have imposed upon him, and it is their duty alone to defend or to give the judge the power as an officer to do so for them. Experience has shown that this is absolutely necessary and that its exercise cannot be withheld without destroying the efficiency and usefulness of courts. The judge as a private citizen is not entitled to redress his grievances except as other citizens; but his public acts are not of that character and cannot and ought not to be so defended.
’While it cannot be successfully, as' I think, denied, that this protective power, this right of self-defence exists as a necessity and must be exercised by some officer, it must be conceded that it is undefined and to a large extent arbitrary and would, therefore, seem to be, abstractly considered, liable to abuse, if not dangerous, in the hands of the court which is itself the subject of the offence. But in reply, we
I concur in the syllabus and judgment of the Court. In respect to the character and evident purpose of the editorial article complained of, I concur with the opinion announced by the President of the Court.
The members of this Court are well agreed as to the law applicable in this ease and also as to the propriety of permitting this proceeding to abate as to A. W. Campbell, one of the proprietors of the Wheeling Intelligencer, it appearing that he has been absent from the State for some ten months and was necessarily ignorant of the matters, on which the rule for contempt in this case was issued, and had practically no supervision of the Wheeling Intelligencer, when the editorial complained of was inserted. We are also agreed as to the punishment, which should be inflicted on'John Frew. But I differ from the other judges as to the character of the punishment, which should be inflicted on C. B. Hart, the chief editor of said paper, and the author of the obnoxious editorial, which appeared in the paper of June 18,1884. This editorial was as follows: “The State campaign seems to be shaping itself. It leaks out that the Supreme Court of Appeals is to brought to the rescue in a decision affirming the unconstitutionality of the exemption act and declaring the assessment order to be lawful and right. This is in effect what was promised by the Supreme Court judges to the Democratic caucus before the order was issued.
“It might be thought strange that anybody could know what the decision of the Supreme Court is to be on any question. But it seemed equally strange that three out of four*481 judges of the Supreme Court told the Democratic caucus more than a year ago to go ahead and rely ou the backing ot the Court. The present understanding is that the decision is to be rendered before the meeting of the Democratic State convention in order to simplify the situation. It is also understood that this move is not intended to advance the interest of Hon. E. Boyd Faulkner.
“ Of course it was not intended that the purpose of the Court should he made public, and publicity may induce the Court to change its mind just to show that somebody has been taking liberties with the text and misrepresenting the Court. We shall see what we shall see.”
The Democratic caucus referred to in this editorial appears in the answer of C. B. Hart, the chief editor of this newspaper, to have been a conference of leading Democratic members of the Legislature including the chairman of both the Senate and House finance committees, called together by the Governor during the session of the Legislature of 1883, to consider whether the statute-law should not he made to conform to the decision of this Court in the Chesapeake & Ohio Railway v. The Auditor, &c., 19 W. Va. 408, as interpreted by the Governor. ' It also appears from this answer, that the expected decision of this Court referred to in this editorial was to be rendered in the mandamus case of Joseph S. Miller, Auditor, v. T. H. Buchanan, assessor of Brooke county, then pending in this Court and decided on the day the rule in this case was returnable, June 28, 1884, reported supra, and which is referred to for a full understanding of that case.
Hart in his answer justified the publication of June 18, 1884, complained of, so far as the two first paragraphs in it are concerned, because ot a publication which he says appeared in the Greenbrier Independent some time prior to August 31, 1883. This publication in the Greenbrier Independent I never saw and never heard of till these jiroeeedings for contempt were .instituted; and I know now nothing whatever about it except what is stated in the Wheeling Daily Intelligeneer of August 31, 1883, which was filed with his answer by Hart. Hor did I ever see or hear of the editorial in that number of the Wheeling Intelligencer till the filing of this answer of ITart, which editorial is a comment on this
It is possible of course that the Greenbrier Independent may have endeavored to make more out of such casual observation of one or more of the judges than he ought to have done, and represented it in his publication as.a deliberate opinion of these judges. If so, he did-very wrong; or it may be possible he used the language contained in the Wheeling Daily Intelligencer of August 31, 1883. And as this may have been the case, I will give to the defendant, Hart, the full benefit of considering that the editorial in the Wheeling Intelligencer of August 31, 1883, has given fully and accurately what had been previously published in the Greenbrier Independent-, and I will receive and treat as true what ITart states in his answer, that he had good reason to believe and did believe it to be true. This I will do, although- he does say in his uncharitable commentary on this publication, as he calls it, of the Greenbrier Independent, when he first published it: “ Perhaps there is no truth whatever in the report of this disgraceful proceeding.” ITe claims now however in his answer that he believed it, when he published the editorial in his paper of June 18, 1884, and that he had good right to believé at least that the publication as it appeared in the Greenbrier Independent was true.
Admitting that he believed it to be true in- the form in which it was re-published in his paper of August 31, 1883, did it justify, as he claims, the first two paragraphs of his editorial of Juné 18, 1884; or does it in any degree palliate his offence in the publication of this outrageous libel on three members of this Court- ? ITe does not state, who are the three members intended; and we have no idea to which of the members of our Court he intended to refer. In this editorial of June 1, 1884, he states in substance as a fact, that three of the four judges of the ¡Supreme Court attended a
As a justification of the publication of the residue of this editorial of June 18, 1884, Hart says in his answer, that, when, he made this publication, he knew that Joseph S. Miller, the Auditor, and the plaintiff in the mandamus case, had been a candidate for Governor at the hands of a Democratic State convention called to meet in Wheeling on the 23d day of July, 1884; and that on the 7th day of June,
Is this either a justification or an excuse for a publication, which says: “It leaks out, that the Supreme Court of Appeals is to be brought to the rescue. * * * The present understanding is that the decision (one in favor of the Auditor) is to be rendered before the meeting of the Demo-ocratic State convention in order to simplify the situation. * * * * Qf eourse it wag 110t intended that the purpose of the Court should be made public, and publicity may induce the Court to change its mind just to show that somebody has been taking liberties with the text and misrepresenting the Court. We shall see what we shall see.” I will state the reasons, which operated on the Court in fixing as early a day
The reasons assigned by Hart in his answer stated above as a justification for this portion of his publication, strike me as not only ridiculous but as indicating a mind so blinded by prejudice and partisan bias as to render him a dangerous member of society. I cannot but regard the latter part of of this editorial quoted above as base and scandalous. There’ was nothing whatever in the proceedings in the mandamus suit peculiar or unusual. It was a case which, as every one knows, it was our duty it possible to decide during the present term, and that as it was a case of general public interest involving in the principles to be settled by its decision a large pecuniary interest, it was right and proper for the Court to give all the time it possibly could to its consideration, and with this end in view it was obviously proper to notify parties interested to prepare promptly to submit their views to the Court. This was done by the Court, and this it seems called forth this scandalous publication. I regard it as the result of an uncharitable and suspicious temper guided by reckless partisan bias.
At the close of the answer of Hart there is this remarkable passage: “The date of the publication may have been untimely, and if it had been considered, that said publication
But it is said in this answer of the defendant, Iiart, that lie had no personal interest in the decision of this mandamus case, and that as a politician he preferred that the case should be decided in favor of the Auditor, as it was decided after the filing of this answer. This I suppose is true. If the case was to be decided at all during this term, as the editor of a Republican paper, I presume, he did prefer its being decided as it was decided by this Court. But I can have as little doubt, that as the editor of a Republican paper and as a mere partisan having no regard to any interest but the supposed interest of his party, he earnestly desired that the case should not be decided at all during this term of the Court, or till after the 23d day of duly, 1884, -when the Democratic convention for the nomination of State officers ivas to held. This is a fair inference from the affidavit of his friend Parsons, filed with his auswer. The very editorial, which is the subject of complaint, says: “The present understanding is that the decision is to be rendered before the meeting of the Democratic State convention in order to simplify the situation.” Now from the spirit exhibited in his editorials and answers I hardly suppose he desired to aid the Demo
In my judgment this defendant, Hart, ought to be imprisoned as well as fined. His contempt of this Court consists of a libelous publication made in the city when the Court was sitting, charging that a majority of its members had entered into a corrupt arrangement to decide promptly a case pending before it in favor of the plaintiff, which charge was made with no other motive than a belief, that if he could prevent the Court by intimidating it from deciding the case during the present term, the political party, to which he belonged, would thereby have its interests promoted. If for such a contempt the guilty party should not be imprisoned, I can not conceive an offence in the nature of a contempt of this Court, for which any party should be imprisoned. The answer of this defendant Hart is itself highly offensive and greatly aggravates the libel, which he published, and the effect has been to cause this Court to impose on him a heavier fine than it would otherwise have done. This is generally all that can be done; for the answer would *of course generally be regarded as written and filed by the direction of the client, and his counsel would generally not know whether the allegations in it were true or false, or whether or not his client believed- them to be true. And ordinarily it would be the duty of counsel to file such answer as his client directed, even though it were insulting to the Court in its character. But if the counsel knew not only that the statements of the answer were false but also knew, when the answer was filed, that his client knew them to be false, then, I think, the counsel would violate their duty to the Court in filing such an answer. 'There is nothing on the face of Hart’s answer which would justify me in saying that it is of this character. But this Court knows certain facts,
These, facts are: That this Court begins its session in Charleston on the second Wednesday in January, the very day on which the Legislature under the Constitution begins its session. The Legislature sits forty-five days, unless the session is prolonged by a two thirds vote of all the members of each house. The session when not prolonged -terminates in February.- This Court holds every year a special term in Wheeling, which begins in March and on a day to be fixed by the Court. ' Of course when the session of the Legislature is not prolonged, it has adjourned, and its members have left Wheeling before the members of this Court reach there to hold this special term. In 1883 the session of the Legislature was not prolonged; and it adjourned on February 23, 1883, while our Court commenced its session on March 7, 1883, nearly two weeks afterwards. Three members of this Court therefore could not possibly have attended as charged a- Democratic caucus of this Legislature, unless two of them at leasf happened to be in Wheeling during a vacation of this Court, an event which has never happened since I have been on the bench during a period of eight years. Occasionally-one of the ijj.em.bers of this Court visits Wheeling, when this Court is not in session, but it is most unlikely that three* members of this Court would meet here, except when the Court was in session. And as the Legislature of 1883 adjourned February 23, 1883, and this Court did not meet here till March 7, it would seem almost impossible, that three members of this Court attended as charged a Democratic caucus of the members of the Legislature. These facts, it is presumed, were' known to Hart, the editor of the Wheeling Intelligencer, and to his counsel, one of whom resided in Wheeling and one in Parkersburg, and both of whom have a large practice in this Court and knew at what times this Court met. If counsel, when they filed the answer of Hart in this case, knew that when their client made the publica-
On the 7th day of July, 1884, the opinion of the Court was announced; and thereupon the following attachment in accordance therewith at once issued :
“State oe West Virginia,
“In the Supreme Court oe Appeals,
“Juue Term, 1884,
“ 27ic State of West Virginia to the Sheriff of Ohio county, greeting :
“Whereas it has been made to appear, that John Frew and C. B. Hart have printed and published an article, which has been adjudged by the said Court, now in session at Wheeling, in the aforesaid county and State, to have been printed and published in cpntempt of said Court while so. in session, as aforesaid. We therefore command you that you attach the said John Frew and C. B. Hart, so as to have their bodies forthwith before our said Supreme Court of Appeals here now in session at Wheeling in the county aforesaid, to answer the said Court of the said contempt, by them lately committed against it, as it is said, and further to do and receive what our said Court shall in that behalf consider. Hereof fail not and have you then and there this writ.*492 Witness tlie judges ot said Court, and tire seal thereof this 7th day of July, 1884.
“ 0. S. Lons,
“ Clerk Supreme Court of Appeals.”
In obedience thereto the defendants at once appeared at the bar of this Court, and Johnson, President, pronounced the following sentence:
THE SENTENCE.
“You, John Frew and C. B. Hart, are before this Court under an attachment for contempt, in consequence of an article relating to a cause in this Court, and published in a newspaper of which you and A. W. Campbell are the publishers and proprietors, and you, C. B. Hart, are the editor-in-chief.
“In the opinion delivered by this Court, when passing upon the return to the rule to show cause why an attachment should not issue against you, we have said all that we desire to say in regard to the character of the publication and the injury, which such publications tend to cause to the administration of justice. It was there held that your answers showed no reason why an attachment should not issue. It now only remains to impose on you a penalty for the offence. It is in the power of this Court to punish in 'this summary way such constructive contempts as that of which you have been found guilty, both by fine and imprisonment. We have no desire to inflict a severe penalty. Our object will be accomplished, if we show to you, that the law will not tolerate publications, the direct tendency of which is to degrade, impede, influence and obstruct courts in the administration of justice. . •
“We are not unmindful of the fact that you, John Frew, did not know that such editorial article was to be published until after its publication, and will therefore inflict upon you a nominal fine. But with you, C. B. Hart, the case is different, because in your answer while admitting that you were the chief editor of the paper and inserted said editorial therein, you attempt to justify yourself in a manner which aggravates your offence, and we shall impose upon you as moderate a fine as the circumstances will allow, as we can*493 not believe that you will in the future commit a similar offence.
“You,’John Frew, are adjudged to pay a fine of twenty-five dollars, and you, C. B. Hart, are adjudged to pay a fine of three hundred dollars into the treasury of this State. You are also adjudged to pay the costs of this proceeding. The fines will be paid to the clerk of this Court, Avho is directed immediately to pay the same into the treasury of this State, and procure the receipt of the proper officer therefor, which lie shall file with the papers in this case. The sheriff will hold the respondents in his custody, until the fine and costs are paid to the clerk.”
