150 N.W. 267 | N.D. | 1914
Section 174 of tbe Constitution of North Dakota limits tbe amount which may be yearly expended by the state to 4 mills on the dollar of the assessed valuation of all taxable property in the state. The legislature of 1913 made certain appropriations for the educational institutions, wolf bounty, bovine tuberculosis, glandered horses, terminal elevators, and agricultural training schools, which apparently exceeded the possible income leviable under this constitutional limit. The state board of equalization refused to levy the full amount of such appropriations, but sealed the same to come within the constitutional limit aforesaid. Hearing was had October 22, 1914, on the question, among others, of whether the state tax levy as made and apportioned by the state board of equalization, and which reduced the educational institutional tax levy below 1-J mills was valid, and, if so, was justifiable as necessary, when the state’s total possible income from taxation and from all other sources was apportioned to its total disbursements authorized by specific appropriations, and its auditor’s estimate of all other necessary and legal expense as authorized by various statutes. This court, not being conversant with the figures, appointed a referee before whom testimony might be taken to establish the exact amounts. Such referee called as a witness the state auditor, and requested him to furnish such estimates. In compliance therewith, the auditor fur
The Co-operators’ Herald is published at Eargo, North Dakota, and owned by a corporation, the entire stock of which we are advised is owned by five persons, of whom the defendants Baker and Nelson constitute two. They claim between 5,000 and 6,000 circulation. A. M. Baker is the manager, and George L. Nelson the editor, of such publication. In the issue for November 13, 1914, in a double column article, in a conspicuous place on the first page, is an editorial signed by George L. Nelson, entitled:
Levy Decision, Gauzy Erame-up. The Eoxy Boss and Henchmen Pull Off Lovely Erame-up Stunt and Bamboozle Voters.
It has been persistently whispered that the supreme court hearing*159 and opinion on tbe tax- levy ease was purely a frame-up to. appease tbe state educational institutions of tbe state, and ward off a real bearing on tbe merits of tbe case until after election. We beard this rumor, but could give it no credence, and gave it no publicity before election, because we could not believe tbat tbe highest tribunal of tbe state could be inveigled into a conspiracy of such a character. We feel at perfect liberty to say tbat at no time bad we a very exalted opinion of tbe personnel of tbat body, but we could not bring ourselves to believe tbat its members would besmirch their high office by resorting to tbe tricks of ordinary machine politics, and dirty politics at tbat, in order to save tbe political scalp of tbe “foxy boss.”
Apparently tbe whole reactionary bunch, governor, attorney general, auditor, deputy auditor, treasurer, et al., not forgetting tbe members of tbe board of equalization and supreme bench, were in tbe plot to bold a fake bearing before election, and appease tbe beads of tbe educational institutions with a favorable opinion, in order to bold them in line, with tbe secret understanding tbat tbe board of equalization would demand a rehearing after election, and tbat it would be granted and tbe ways all greased for tbe supreme court to be able to gracefully reverse itself and knock tbe educational institutions out. ... It is a foregone conclusion tbat tbe supreme court will reverse itself, in fact it may have done so before this issue reaches our readers.
On tbe 18th of November, 1914, tbe attorney general of tbe state laid information against A. M. Baker, business manager, and George L. Nelson, editor, charging them with contempt. After citation and plea of not guilty, tbe defendants filed an answer wherein it was stated: “Tbe contention of defendants is tbat at tbe time of tbe publication of tbe alleged contemptuous article as set forth in tbe information, and admitted in tbe information to have been published on tbe 13th of November, a. d. 1914, was published after a final and complete determination of tbe controversy to which tbe article referred.”
(1) Thus tbe first and principal controversy is whether or not tbe case of State ex rel. Lenbart v. Hanna was pending in this court at tbe time of tbe publication of tbe article aforesaid. As already stated, an opinion bad been filed October 28, 1914, and an opinion on rehearing on November 12, 1914, both prior to tbe publication aforesaid, but
(2) The reason for punishment of contempt of court is that such acts tend to obstruct the administration of justice. From the earliest days such ruling has been enforced. In Reg. v. Wilkinson, 41 U. C. Q. B. 47, it is said: “The object of preventing, and, if necessary, of punishing, publications calculated to affect prejudicially the interest of suitors, is that there may be a fair trial; that the stream of justice shall be allowed to flow unruffled by extraneous influences.” And in Rex v. Parke, [1903] 2 K. B. 432, it is said: “The reason why the publications of articles like those with which we have to deal is treated as a contempt of court is because their tendency, and sometimes their object, is to deprive the court of the power of doing that which is the end for which it.exists, — -namely,'to administer justice duly, impartially, and with reference solely to the facts judicially brought before it: Their tendency is to reduce the court, which has to try the case, to impotence.” And in Fellman v. Mercantile F. & M. Ins. Co. 116 La. 723, 41 So. 49, it is said: “There is an obvious reason which appeals to the common sense of mankind, why outside influences should not be allowed to interfere with the conduct and decision of a cause or with the execution of a judgment, and that is that every individual, whether he be prosecuted criminally or be a litigant in a civil action, is guaranteed by the fundamental law a trial according to law, and protection by and under the law, for life, liberty, and property; and he is denied those rights, just as certainly as one who is hanged by a mob is denied them, if every interested, meddlesome, or malicious person who may choose to do so is allowed to intimidate his witnesses, corruptly influence the jurors to whom his case is submitted, denounce the judge for his rulings as the trial progresses, and obstruct the execution of judgment when obtained.” See also Globe Newspaper Co. v. Com. 188 Mass. 449, 74 N. E. 682, 3 Ann. Cas. 761; Lord v. County Comrs. 105 Me. 556, 75 Atl. 126, 18 Ann. Cas. 665,—interesting footnotes being given in each of the annotated cases.
Applying such law to the facts at hand, we find two litigants, the board of equalization of the state of North Dakota upon one side, and the educational institutions upon the other, contending in this court for a statutory construction under the Constitution of this state, both
Much has been said of tbe sacred rights of free speech. It is always conceded that tbe right is sacred, but at times sucb sacred right must give way to others even more sacred. It has never been claimed that it will protect a man in invading a church and interrupting tbe sermon with bis free speech. Tbe free right of speech will not protect a man in obstructing tbe streets of a crowded city; tbe free right of speech may not be used to interrupt even social gatherings or political meetings. Should it, then, be allowed to interrupt the courts of justice? Surely there must come a time when tbe rights of tbe free speaker are overshadowed by tbe rights of other men to unhampered justice. Tbe right of free speech and tbe freedom of tbe press are as sacred to tbe
(3) We come, now, to the question of punishment. The defendant Nelson in answering the interrogatories assumed the whole responsibility for the publication of the article aforesaid. When 'asked to state any reason why he had published the same, or any circumstances which had caused him to believe the same to be true, he replies: “I decline to state from what source or authority or information I obtained the facts or inference leading me to believe the same to be true, for the reason that it was a privileged communication, and for the further reason that if I divulged the source from which I received the information it would be a gross breach of professional ethics.”
In determining the punishment we would like to consider the provocation which induced the same, but in doing this we are completely obstructed by the defendant himself. The burden of proof was upon the defendant to show the truth of the allegations alleged by him. This he positively refused to' attempt, thereby, in effect at least, admitting their falsity. This is, of course, a serious offense, but we are inclined to leave his true punishment to his conscience and an enlightened public opinion. We do not believe the offense will be repeated. Therefore we will impose but a slight portion of the punishment which might be inflicted. It is the judgment of this court that George L. Nelson be confined in the Burleigh county jail for a period of ten days1 commencing at noon, November 23, 1914, and that he pay a fine of $200; and that in case such fine is not paid, he be confined in said jail for an additional period of twenty days.
(4) The ease of the defendant Baker is different. He states under