*1 age against trial as defendant account of Geil. On delay witnesses, and plaintiff condition of other of the the new trial appeals cause, incident two trials two promptly possible. should had as Anderson, Associate Adair and Morris Erickson, Justices concur. NIEWOEHNER, HALL, Relator,
STATE ex Rel. Respondent. (No. 8564.) (Submitted 1944.) 1944. Decided December December (2d) 205.] [155 *3 General; Lay, Bottomly, Attorney Fred First Mr. Mr. R. V. Hall, Special C. Pros- Attorney General, and Mr. H. Assistant ecutor, filed a Relator, for brief. Timothy Nolan, Sullivan, J. Strommes, F. Horace
Messrs. E. J. Respondent, submitted Davis, George Niewoehner, S. and E. for a brief.
Opinion: PER CURIAM. proceeding. contempt
This ais Respondent, George Niewoehner, an attorney at law ad- practice mitted and licensed this court to it. before Saturday, On 7, 1944, October office came of the clerk of court and filing there delivered and presentation typewritten- court a motion. He left also copies the clerk five of such motion. The motion reads: Supreme
“In the Court of the State of Montana. “In Supreme Re minutes of the Court “Motion Directing Order that the and Records Minutes Supreme Court Purged State of Montana be Misleading Entries and Made Whole. George Niewoehner, Esq.,
“Comes now as an officer Court, support pres- above entitled and in of his motion to be ently represents alleges: made and July 7, 1941,
“That on or before Mr. Leif Justice Erickson prerogatives abandoned his and Supreme duties as Justice of the Montana, Court of thereupon accepted employ- the State of and Adjustment ment as a Board, referee for the Railroad National all in office, violation of his oath and in breach of his trust people; to the
“That Leif Mr. Erickson did such continue abandonment neglect including 1941; September until and 12, 1943, “That May acting Mr. Leif before Justice again prerogatives Erickson did as abandon his duties Supreme Justice of the Montana, Court of the State of thereupon again accepted employment referee for Adjustment Board, National Railroad all violation Constitution, Montana office, violation of his oath of people; breach of trust to the ‘‘That Leif continue abandonment and Mr. Erickson did such neglect including 6, 1943; June until July 15, 1943, acting
“That Mr. Leif on or before *4 prerogatives again still abandon his duties and as Erickson did Supreme Montana, Court of the State of Justice of thereupon again accept employment did as a referee for still Adjustment Board, all in National of Railroad violation office, of of his oath Constitution, Montana violation people; in breach his trust to the of such abandonment “That Erickson did continue Mr. Leif 1943; September neglect including until and Railroad “That Mr. Leif Erickson thus served the National Constitution, in Adjustment Board, in violation the Montana of neglect office, and in of his duties violation oath of his people Montana, following periods: for the inclusive, period “July 7, 1941, September 8, 1941, sixty-four (64) days, consecutive twenty- period
“May 12, 1943, 1943, inclusive, a to June (26) days, six consecutive fifty-nine 11, 1943, period
“July September time in service days, all told made total (59) which consecutive Adjustment hundred Railroad Board of one for the National forty-seven (147) days; Railroad referee for the National
“That for his services as Board, paid the sum of Adjustment Mr. Leif Erickson was Seventy-five ($7,- Dollars Seven Thousand Three Hundred per day, and did ($50.00) 375.00) Fifty at the Dollars rate of Thousand amount of One expenses per receive diem in the making a total Sixty-seven ($1,267.00), Dollars Two Hundred Forty-two Dollars payment Hundred Eight Thousand Six days (147) forty-seven ($8,642.00) hundred received for one duties employment outside his unlawful and unconstitutional Court; of this lets, the Minutes let, still did Mr. Erickson Leif “That of Montana people that he served indicate of this Court he (147) days, and that forty-seven hundred during these one against salary support claims under oath to statements has made covering these Montana the State Treasurer of the State days; identical Forty- Hundred Eight Thousand Six to the
“That addition employment outside received ($8,642.00) two Dollars salary as Jus- full drawn his has state, Leif Erickson Mr. forty- one hundred same Montana for the tice from the State of *5 (147) days seven at the date of Seven Thousand Hundred Five ($7,500.00) year; Dollars a
“That as a result of alleged the facts hereinabove the said Mr. Leif Erickson in in neglected has fact and truth his duties July as Justice since 1941, and has much of the time been earning wages absent Fifty at himself of the rate Dollars ($50.00) per day, together expenses per diem, and when Supreme the session; Court was in “That as a result of said facts Mr. Leif Erickson has jure been a justice Supreme de 1941; year Court since the despite “That facts, many the aforesaid of them known to other Court, Justices this the Minutes of Court have being continued to present indicate the said Leif as Erickson when in absent; he was fact
‘‘ Supreme That the records of cases decided official Court, printed reports decisions, and official make of those appear many it in that cases and Mr. Leif these decisions properly participated by exercising judicial Erickson dis- people cretion vested in him of the State of Montana when in fact and in Mr. properly truth Leif did Erickson not so participate and his exercise discretion those and cases decisions;
“That as now Supreme stand the Minutes Court of the State of Montana misleading repre- are not true sentation of conduct Leif of Mr. Erickson Supreme making Court Montana, of the State of it im- possible people for the of Montana to ascertain the true fashion in which the business Supreme of their Court has been conducted; things alleged
“That the matters hereinabove are cal- destroy integrity and dignity Supreme culated to of the Montana, Court and that State of the Constitutional guarantees thereby rights people of the of Montana are imminently jeopardized; being Court, your petitioner an Supreme
“That officer of the Supreme duty endeavor have the Minutes rectified; Court therefore, Supreme Court for order
“Now, I move all directing' purged those that the Minutes records present appear that Leif Erickson was entries which make it Mr. appear not, he which make it Court when fact was or. properly participating Leif the decisions Mr. Erickson was not, directing when in fact the Court Mr. Minutes and be made to show that Leif Erickson records *6 absent, was absent from he was fact Court when be participate in Mr. made to show that Leif Erickson did not properly those in which in fact did not cases decisions participate exercising judicial in him by the discretion vested people the Montana. the State of
“George Neiwoehner” promptly presented it receiving' the clerk Upon motion the together copies for use with the five the to the Chief .Justice published XI Justices, of the rules of the subdivision of Rule ordered, mo- providing that, otherwise a “Unless this disposed argument.” tion will be of without oral considered day, the Monday, being the next business On October bar this state mailed all members of the to the a together a letter mimeographed copy of motion signed by him. letter reads: ‘ ‘George Niewoehner
“Lawyer Sulphur Springs, Montana “White 9, 1944
“October “Dear Sir.- may you throw reading this letter you finished
“When have mind, you your if affair away dismiss whole my business. experiences is none of my you think of wish. What why you I have taken tell going I am to “In three sentences every lawyer to mimeographed letter this send the trouble to lawyers, have including Montana, people the state. The what Supreme Court show records of the right have the Supreme Court, business is transacted how and when transacted, participate. the business is and what Justices De- spite right, I believe that the Minutes do not show how ‘ Supreme Court took care of certain matter entitled Be Supreme Minutes going give of the I Court.’ am Therefore you facts, your with no comment whatsoever —draw own conclusions.
“Just before noon on Thursday, 5th, I October called the Marshal Supreme Court, told him I would have an ex parte matter to be heard 10:00 A. Saturday, at M. on October 7th, and notify asked him to them Justices have Bench at that I give time. did not him any information as the nature of Early the case. He requested. said he would do as that afternoon the Marshal advised me he had notified Justices Johnson, Anderson, Adair, Morris and and that those Justices said would present. be
“Then I noticing went board Court’s which noticed, matters to heard and there was notice on the Saturday. board that would 10:00 A. there be a matter at M. on ‘ My appeared (Niewoehner) name thus: the notice ’. Saturday, 7th, I “On October at waiting the office of Supreme Clerk of Court at ten to 9:00 A. M. when minutes Motion, gave the Clerk arrived. I asked him the Clerk to file *7 copies the thereof, gave Motion and and him ten five a dollar bill A filing copy for the the Motion is enclosed herewith. fee.
“Thereupon any I papers the Clerk said he file would not might have, Justices, that he would transmit the the Motion to and I that would be advised as to what the Court would do.
“I waited, ready, A. until and after 10:00 M. The Justices did not the take Bench. after 10:00 A. M. Clerk took
“At five minutes the about office, heard, I would not and me into told me be told me his notify what it would do at that the Court would me as to some my returned ten dollars. indefinite time in the future. The Clerk board, “Thereafter, again I at and the looked the bulletin hearing which I was have had was still notice the there. was Court. There Minutes of the "Thereafter I looked at the covering item business. entry no this very truly, "Yours copy George
"Enc. of motion. Niewoehner” attorney 14, 1944, Hall, Esq., On H. at law October C. an court, presented and an affidavit officer this court to the respondent the afore- charging, among things, other that did contempt thereby said committed this court. acts made, accusatory and, was filed order affidavit The requiring him to respondent and served on citation was issued adjudged why not cause, certain, a should day show on contempt punished accordingly. 4, On October Disqualify Justices. Motion to 194 a attorneys and herein filed appeared respondent Justices of four of the five disqualify an motion for order disqualifying an alternative, order court, or, this Erickson. and Associate Justice herein Chief Justice Justices disqualification the four urged for the ground prejudged alleged the matter to have was that are an they joined making order for 14, 1944, October alleged conduct wherein is recited the issuance of citation ex rel. complaint State respondent is here made. of which R. 52 A. L. 66, 256 Pac. Owens, 125 Okl. Short motion made court overruled a like * * * challenged that the therein, saying: "While he contends prosecuting him in this action against informed Justices begun the action it is rule to show cause true have surety respondent does at instance of temerity against proper that in the case to assert and, power act, contempt committed is without which trial, dis- having bring matter to is therefore moved to qualified. never the law.” Such is not and has been a citation
It is also manifest the order for issuance contempt prejudgment than the is no or a conviction more by writ, made district order for an alternative or- order attorney judge county during directing of a trial course *8 against perjury. (33 a J. file an witness for C. information 167.) 1009, 1010, sec.
The alternative of motion that Chief Justice Johnson disqualified Justice Associate Erickson were because both had served as referees' with National Railroad Ad justment personal Board and had a interest the determination question propriety legality of the as to the or of such service. As below, question noted that was not an in either motion issue records, although proceeding, amend or this would seem respondent’s purpose throughout that has been calculated to give public impression. Manifestly question that cannot be adjudicated in this case no member of the is dis court qualified by possible question. interest
Respondent’s original lengthy allegations motion contains as to the service of Mr. Justice Erickson as a board. referee It daily compensation paid sets out the him for this service. It contains a him, statement paid as to total amount includ- ing even his railroad charges fare. It him such service inwas Montana, violation of the Constitution of but it asks no order of the Court based charges any these or of the other allegations set forth any ruling above. motion does not seek service Supreme Justice Montana of the at the Court call government disputes federal arbiter in labor violates the Montana Constitution. It does not ask that for- feiture of his office worked. The motion not does seek the recovery any monies from Mr. Erickson. Under its allegations only impossible any is it to determine of these questions in might which Mr. per- Justice Erickson such a have disqualify him, sonal interest as to but the motion does not ask only purpose determination of them. The ostensible motion is to seek correction of the minutes records of the Court. granted The relief that could be denied this motion affects the clerk and the court itself any and not Justices, of true of Justices Erickson and Johnson as well as of the other three members of the court.
It
question
was also contended that the two
were
Justices
*9
as
respondent had summoned them
disqualified because
testify concerning Associate Justice
to
witnesses on his behalf
payment
and
as
concerning his service
and
Erickson’s absences
concerning the manner of
during
and
referee
those absences
the
minutes,
records and decisions of
preparing
signing
and
as a
payment
referee
noted,
Court. As
the Justice’s service
ease,
minutes and records
was not
in the
and since the
issue
present
was
when he was
did not
the member
indicate
to
issues
it was not material
alleged to
been absent
have
not,
manner the
actually
or what
whether he
absent or
prepared
and
minutes,
and
court were
records
decisions
calling
judge as
is relied
signed. "Where
of a
witness
materiality
cases,
and the
disqualification
proper
for his
necessity
testimony
(State ex rel. Short
for
must be shown.
599,
Owens, supra;
Wells, 5
Cr.
115 Pac.
v.
Johnson v.
Okl.
375; Dancy
879;
State,
Owens,
37,
v.
126 Okl.
258 Pac.
Goad v.
to
411,
927.)
43
Cr.
279 Pac.
Here the affidavits annexed
Okl.
materiality
sought
motion
neither
showed
of the evidence
necessity
obtaining it
these
adduced,
to be
nor the
for
particular
In
witnesses.
at
trial
did not
fact
concerning
call the
but
Justice
witnesses
the desired evidence
payment
Erickson’s absences and his
as a
service
referee
Adjustment
with
stipulated
the National Railroad
Board was
parties, subject
materiality.
objection
to
as
its
any
action
not for the benefit
Justices.
is
Court,
46, 56, 155
v.
52 Mont.
rel.
District
State ex
Metcalf
1918A,
985,
Ann.
278, 281,
1916F,
R. A.
Cas.
L.
through
Holloway
power
Mr.
said:
speaking
“The
reposed
contempt
nature a trust
in the
punish
its
courts,
themselves,
people whose
not for
but for the
laws
(Watson Wil
interpret
authority they
v.
whose
exercise.
liams,
would
331.)
36 Miss.
a court which
hesitate
While
guilty
warrant would
power when the circumstances
use the
kept
duty
always
in mind
of craven faithlessness to
it is
to' be
power
summary
its
imperious
such
in its nature
law
been modified to harmonize
execution. Under the
as it has
genius
institutions,
very judge
of our
who is libeled
may become complainant, prosecutor, witness,
judge.” (See,
also,
Owens,
State ex rel. Short v.
supra;
Dancy,
Owens
Cir., 36
(2d) 882.) “Contempts
Fed.
punished
court are
as
against
offenses
justice,
administration of
per-
not as
* *
sonal
judicial
affronts to
functions,
those who exercise
(Ex parte Sullivan,
815, 818,
Okl. Cr.
138 Pac.
Ann.
1916A,
Cas.
719.) Accordingly
Nelson,
in In
this court held
re
(2d)
Mont.
60 Pac.
opinion
in an
concurred in
Mathews, Ralph
Anderson,
Justices
John A.
J.
V.
Samuel
Morris,
objectionable
Stewart and Claude F.
that it was
testify
Associate Justices Stewart and Anderson to
to material
participate
matters and
also to
members of the court. In his
attempt
disqualify
two of the Justices
ac
of this court on
*10
count
being subpoenaed
behalf,
of their
on his
witnesses
principally
relies
a certain dictum of this
court in its recent decision in
rel.
v. District
State ex
Moser
305,
Court, 116 Mont.,
(2d)
151 Pac.
1002,
the court
where
quoted
approval
from the
the Criminal
decision of
Court
Appeals
of
Ex parte Owens,
118,
Oklahoma in
37 Old.
258
Cr.
opinion
Pac. 758. The author of the
failed to note
at
Moser
that
beginning
report
parte Owens,
supra,
Ex
in the
Reporter
opinion
Pacific
appears
there
this
“For
notation:
Supreme
quashing
annulling
opinion,
Court
and
258
this
see
879.”
did,
Pac.
however,
(2d)
He
write
:
[151
1008]
“See,
Dancy
Owens,
37,
also:
v.
126 Okl.
In cause, to the citation and order to show the re- spondent 21, 1944, on November appeared court in before this person attorneys his and the At matter heard. hearing respondent presented (1) quash seriatim motion to citation, (2) special plea bar, (3) plea an oral of “Not Guilty,” (4) a written answer. quash. accusatory
Motion In to affidavit affiant states allegations that “is- informed and believes” certain quash, respondent therein set motion forth. his contends allegations that such made on so information belief render the affidavit insufficient but this court has held the con trary. (See Court, State ex rel. Grice v. District 37 Mont. 97 Pac. ex Young Court, and State rel. v. District (2d) 1243.) Mont. 58 Pac. quash motion to asserts proceeding this respondent’s rights is violative of under section of Article III of the Constitution of Montana and First Amendment to the Constitution of the United States, objections (See but such In Nelson, not tenable. re supra.) The quash urges motion in denying re also spondent’s four, disqualify motion to two, or in the alternative of the Justices of rights this court under section III Article of the Constitution of Montana and the Fourteenth Amendment to the Constitution of the United States were vio lated, but we found no merit in this and the motion contention quash the citation was denied. 14, 1944, court made
Special in Bar. On October Plea *11 setting alleged forth show cause the conduct an order to directing alleged contempt and constituting that citation the 8562, upon respondent, being No. and be served Cause issue accusatory determined but before such cause was heard or the Hall, Esq., proceeding H. C. now us affidavit of in the before thereupon prior presented and filed and said cause No. was, prejudice. order this dismissed without By special plea bar, urges a now that under sec- prejudice dismissal
tion 12229 of Penal such without the Code contempt any prosecution a bar further constituted to only supra, charges against respondent. 12229, relates Section prosecutions, to must be commenced criminal which actions filing complaint, a an indictment. The information or present provisions of proceedings were instituted under the not supra, 12229, applicable. Penal Code not here and section 140, 42 Pac. Faulds, 148, v. 17 Mont. ex rel. Haskell State may 288, “although matters 285, this court observed that such such, deprive crimes, and this does not punishable as still punish contempts.” The power such acts courts to as itself, nature, is not contempt proceeding criminal while of prosecution meaning Code. within of the Criminal criminal (State Flynn Court, 24 Mont. ex rel. Judicial District Fifth contempt question 493.) Furthermore penal under within the acts enumerated as misdemeanors (see. 10944). special plea in failed to facts The bar state statute proceed sufficient to constitute either a bar or defense to this ing and author relator’s demurrer thereto was sustained ity parte Brambini, Ex 192 Cal. 218 Pac. and State ex Court, (2d) rel. District 98 Mont. 38 Pac. 269. Odenwald v. accusatory alleges affidavit that re-
Accusatory affidavit. filing; spondent his motion to clerk delivered copies motion, to letters, enclosing of said thereafter mailed Montana; that the motion throughout state of persons divers manifestly place by respondent “to calculated was intended and improper in the and records of and matter files irrelevant judicial purposes apart from Court, the same for the and to use embarrass, hinder namely purposes, and business, political respect for justice, lessen and administration of obstruct motion destroy dignity, which such its all of Court posi- manifestly do”; respondent “has misused his tends misused privilege tion an officer of this Court has proceedings purely thereof for records this Court’s purposes”; motion irrelevant political and that the contains *12 impertinent in minutes matters which eonld not be reflected respondent knew. the records of this court as well Guilty” respondent pleads
Answer. In answer “Not charges accusatory contained in the affidavit and then avers prosecution: that (1) Impairs speech freedom of violation of Montana; (2) section 10 of III Article of of the Constitution process him denies due III violation section of Article of the Constitution of Montana and the Fourteenth Amendment to the Federal Constitution; (3) privilege denies him speech free and the freedom press in violation the First and Fourteenth Amendments to the Federal Constitution. hearing, evidence,
At the were various documents received namely: (1) Respondent’s directing motion for an that order purged; (2) minutes records be court the minutes separate periods respondent’s of time the three mentioned in motion; (3) 15, 1944, denying order of the court of November respondent’s motion; (4) by letter of October 9th mailed re- spondent state; to the (5) proclama- members of the bar of this by tion proclaiming issued a general the Governor election elect, be held in 7, 1944, the state of Montana on November among others, governor justices and two associate of the Su- preme Court; (6) pri- at certificate Governor that mary July 19, 1944, Erickson, election held on Leif now an justice associate duly of this nominated as candidate party (7) the Democratic governor; for the office of Mr. Morris, dissent of 17, 1944, filed November to the order theretofore denying respondent’s made for an motion order amending the minutes and records of the court. respondent clerk testified that on October delivered respondent’s motion, original copies say-
to him the and five them; ing “accepted wished that he to file the clerk papers and transmitted them Chief Justice Howard John- son;” immediately respondent thereafter he advised papers. Wuertimer, what he had done with Julius J. attorney law, through at testified that received the United respondent’s Falls, resides, at letter States mails Great where he mimeographed copy 9; therewith was a October that enclosed respondent’s knew that similar motion; and that the witness or about the or identical communications had been received on city lawyers date other in the of Great Falls. Counsel same open respondent’s signa- admitted that *13 Wuerth- was affixed the witness ture to letter so received ner, and relator rested. It testify. though present in did not
Respondent, respondent in the state stipulated was born by counsel that the day 13th America, on the Dakota, of North States United native- remained a March, 1912, and at all times thereafter Respondent called the clerk United States. born citizen of the in correspondent Press as witnesses and a Associated for the in tends to contradict testimony his their manner behalf but no any any accusatory affidavit nor charges of the made No was introduced introduced relator. evidence evidence original by respondent disputing fact that he delivered the day filing that on next business to the for or motion clerk copies thereof, together with his letter mimeographed he mailed lawyer respondent and has every October to the state why and not con- wholly failed to acts conduct are show such tempt of this court. motion, reading a it does not
As noted of the will be justice’s legality purport seek a of the of the determination Adjustment Railroad National service as referee during periods provisions federal law Board under the upon an determination of absence. In fact there can be no such any making the interested parte ex motion without nor event proceeding. Nevertheless the person party action or to the greater part statements, consists accusations of the motion matters. concerning such extraneous conclusions of law Respondent’s presented clerk motion was delivered to the exactly prior to 7th, being month October one Erickson was November 7th. Mr. Justice general election of at and since governor for the office of that election candidate justice respondent’s concerning set forth the statements said possible purpose motion had no reference the ostensible apparent respondent, motion had inserted same for judicial namely purposes, political purposes than other pre- to influence the a rebuttable outcome of said election. It is sumption attempted which has to refute person ordinary “that a consequence intends the of his volun- tary 3). (sec. act” subsec.
It is not an allegations, issue extraneous here whether the legal scurrilous, defamatory accusations and conclusions are or whether properly political could used cam- have been paign material. simply The issue is whether or not the attor- ney’s said guilty contempt. conduct is such as show him respondent.is chargeable
As attorney law, at w ith irrelevancy edge impertinency of the matters which wholly set forth in motion and which foreign were purpose Respondent to the ostensible of the motion. is likewise chargeable with the knowledge of his duties as an officer of court; files, machinery only to use it and its records *14 judicial purposes. bona fide Monday, 9, 1944, his letter of respondent October amade upon
further attack they the court’s minutes because did any not then show upon action taken pre the motion which he sented through the court preceding clerk its on the business day. further He attacks the court because the Justices did not at 10 day convene o’clock a. m. on motion, that despite to hear his the fact published that under the and practice rules established such disposed motions are considered and argu of without oral ment (subdivision unless XI) otherwise ordered 3 of and Rule any that in event it court, would be respondent, for the not the hearing. complains to set the time He further “the that clerk any might said not I papers have, he would file that he Justices, would transmit the motion to the I that would be advised as what the court respondent would do.” When the papers delivered his to the clerk with directions that filed when accepted papers the clerk and transmitted by them to the Chief Justice for action the documents court, irrespective then and there filed before the were anything may clerk said or or not he that have whether any filing stamped, then marked or wrote memoranda or data papers. paper “A is it is delivered to the filed when filing.” (21 S., proper by officer and him received for C. J. Courts, 228, p.,427.) sec. shortly
Respondent complained further after 10 o’clock m., a. him heard the clerk informed that he would not then be notify and that would him do at the court as to what would stated, some indefinite future. the re- time As before spondent charged knowledge promulgated the rules practice and the followed in this he known court and should have argue to an orally he was not entitled his motion nor specify any particular immediate decision thereon. He did not entry being erroneous, generally attack but made an during covering separate periods two minutes three of time separate years required and time examine the minutes periods charges thus records for such and to consider made, required well knew for this he that time would be study but next busi- notwithstanding sent his letter out on the he day filing ness after the motion. further, clerk returned
Complaining states “the prescribed clerk are my Ten Dollars.” The fees Codes.) prescribed for (Sec. 372, Rev. fee legislature. No accepted filing and therefore no fee could be of motion by law. any prescribed may collect fee not clerk for he Court, 24 Mont. (State District ex v. Second Judicial rel. Baker 688; District King rel. Judicial 425, 62 State Second ex 402.) Court, 63 Pac. Mont. the clerk further, respondent states that after
Complaining dollars, up minutes of looked returned his ten business. covering item of entry and that there was no *15 place what takes simply memoranda of minutes are brief do not minutes authority court. The by made reception past indicated the time they nor now have pay- time of printed or the filing typewritten motions or or 455 appearance fees, znent of the amount of collected. nor fees Clearly writing publication 9th of the letter October contempt. constituted 117 Shay, Re Cal. Pac. ‘‘ publication the court said: That writing and" letter, if the believed, false statements therein made would were upon cast thereof, discredit this court and the Justices cannot falsely be denied. It imputes im to the Justices of this court proper entirely conduct of which innocent. are Whether wittingly, made through or carelessness, sheer inadvertence or grave duty attorney it was a- part breach of his as an on the Shay. Apparently Mr. public. was not intended to made publication Its recent does appear to have been made at Shay the instance of Mr. Mr. McKinley, against but rather their wish and will. This palliates fact somewhat the offense. But the writing of such a publication possible. letter made the Its untruthful statements well are calculated to create the false impression that the members of this court terms of undue intimacy powerful litigants. impression Such a false mischievous, most greatly impair must tend the con fidence of people integrity attempt court. To to create impression, such an individuals, even to few is a serious duty enjoins one whom the law violation.of fidelity utmost vigilance preserve jus court and its appearance tices from even (See of evil.” also Falloon v. Superior Court, App. 1057; Daily Cal. 248 Pac. Superior Court, App. (2d) 127, (2d) Cal. 936.) purpose respondent’s
The ostensible motion was to obtain directing from court an order that its minutes purged records be alleges falsely of entries which represent present that one of the Justices was when in fact he government. only absent from the seat of issue tendered was: the motion Do the minutes records indicate that Mr. present Justice Erickson was when in fact he was absent major Helena? It is portion obvious that of the mo wholly tion consists of impertinent having irrelevent and matters question bearing no on the of the correctness of this court’s *16 456 and it of motion apparent the face
records. This is a within of this court to forbid such was the sound discretion spread upon being from its records. court document if in deny place document a its files since empowered to there- already filed, power had order it stricken the court to held, with concurrence from as this court Mr. Justice Morris’ 586, 558, (2d) 69 Pac. Company, v. 104 Mont. Nadeau Texas law, course, that elementary 111 R. “It 593, A. L. 874. is of records. right protect integrity court of its own has the to '(Gaston Any indispensable authority.” court record has that of 84, “A of Collins, 449, (2d) 87.) v. 72 court Kan. Pac. they and are authority records, its general record has own over custody control, particularly pertain within its seCfaras proper far as to the court’s business so is essential * * * justice. its exercising control over administration of irrelevant, un- records, power protect a court has them important superfluous keep free papers, or and to the records pertinent from stain and and unneces- scandal not the cause sary (21 S., 229, p. 430.) Courts, the decision.” C. J. sec. 798, 211, 225, (2d) 793, Huppe, 92 Mont.
In In re attorney an assumes obligation which “The said: maintenance admitted to the bar includes the when judicial obligation This respect officers. for our courts merely observing demeanor discharged by a courteous not court, from open court, abstaining, in and out of but includes written or language, spoken, insulting and libelous the use personally judges printed, or other offensive conduct toward only to generally applied or their official This rule is acts. 209), such State, Ark. 50 Am. Dec. (Neel official acts v. judge abusing him because stopping as street Green, 7 Colo. (People decision conduct of ease or include extended to Rep. 356), but should be 374, 49 Am. 3 Pac. disrepute. bring into courts misconduct which tends to all in the judicial officers criticising the motives of The habit proceedings áre when duties, performance of their criticised, in and conduct are against whose acts the officers subvert proceeding impeachment, tends to the case of a direct justice community in the courts of the confidence of the administration, an their and when such criticism is made guilty pro attorney, he is who is officer of the (Matter App. Rockmore, 127 Div. fessional misconduct 879).” 111 N. Y. S. Codes, provides: fol- 9908, subdiv. Revised “The
Section omissions, respect justice, to a court of lowing or acts therein, contempts authority of the court: proceedings *17 *# * neglect office, or wilful Misbehavior other or viola- ** attorney duty by provision an *.” tion of This was before Shay, in In said: “If supra, the court re wherein the court the persons immediately with thus connected the court do ob- proper respect it, derogatory toward or make serve statements character, public to regard its and the confidence would be much part ordinary more affected than similar behavior on the of citizens not connected with pro- the court or familiar with its ceedings. The greater persons court should have control of these necessary ordinary than would respect be citizens. It was purpose giving for the of protection to the court a means of against upon such attacks, were, attacks its as it character — from within —that this subdivision was enacted.”
“It is well contempt may settled that be committed in corporating impertinent, scandalous, insulting contemptuous or language reflecting integrity on the of the court in pleadings, motions, motions, affidavits, notice of papers and other filed in court.” (Citing (Hume authorities.) Superior numerous v. Court, (2d) 17 506, (2d) 669, Cal. See, also, Pac. In 674. re Freebourn, 92 585, (2d) 1115.) Mont. early In the case v. McCormick, 18, Brownell 651, 653, 7 Mont. 14 Pac. presenting “In court, this court said: this case there has severely which must been conduct we condemn. brief of The language attempting appellant reproach contains the to cast proceedings below, seeking the of the court and to make * * * object contemptuous wit and ridicule. No character persons deeper a in preserving can have dignity interest bench, maintaining of the pro- courtesies onr honorable fession, bar, than the act ac- members and should cordingly. purposes This is which bar one of avowed formed, objects associations are and to which their one efforts language The brief in this directed. ease reprehensible, courtesy as being in and violation of the conduct due from bar bench, and will not be tolerated.” (2d) 882, 885, In 36 Fed. the court Dancy, Cir., Owens ** * to contemptuous pleading “Appellant said: caused the brought placed among in the into court and the files ease inspection action there- party which he for the court’s was clearly contemptuous pres- conduct in the on. This constituted by appellant facts, ence of the court. As to the the motion filed case; they presented question of law.” whole 165 Atl. the court parte Bowles, 164 Ex Md. ‘‘ in- directly by necessary whole, affidavit as said: The honesty court, and con- integrity and ference, impugns the pass could not without serious which the court stitutes an attack standing for the instrument dignity its impairment of language con- justice. contemptuous administration among public records of filed an affidavit tained have, in- has, must it. The court and directed to *18 dignity and preserve right power maintain and its herent to (Citing preserved.” decorum, its usefulness be in order that cases.) by presented facts, case, in instant the motion
So as to by respondent and mailed him all the letter mo enclosing mimeographed copy of the lawyers in the state They law. They present question whole tion are the case. they intended explained. apparent It were not been have integrity by question and attack the respondent and calculated destroy, respect for the court. lessen, if not of this court and to ad embarrass, and obstruct the They hinder were intended to they have justice by and this done. court ministration of its and to coerce to intimidate the court They calculated were 459 find Accordingly we must failed. in this have action but contempt gffense of this court. guilty respondent Respondent is mitigating circumstance. There however a A inexperienced practice before this court. comparatively in by we take the actions taken this of which reference to judicial (sec. 10532, Codes), the court notice Rev. discloses that only prior in which re has dealt with four actions matters spondent appeared in pending has as counsel. Aside from a case appears which he counsel for the Board Industrial Accident Montana, the State of all of those cases involved attacks Chapter 47 1941, by Legislative of the Laws which As sembly granted in military effect leaves of absence to certain public employees entering military officers service of the United States. Mitchell, The first such ease was v. Gullickson 359, 126 (2d) Mont. Pac. 1106, this wherein court held the statute with constitutional Mr. dissenting. Justice Morris There respondent appeared as amicus curiae and attacked the con stitutionality of the statute. The decision therein has cited been approval by followed California, courts Ken tucky, Utah Virginia. and West
Next in rel. Mitchell, State ex 617, Niewoehner Mont. (2d) respondent appeared Pac. both as relator and sought counsel. unsuccessfully there He writ of mandate to compel secretary accept nominating state to petition, presented day on the last filing nominating petitions, sought which he be a intervening general candidate at the election of 1942 attorney office of general, which was governor’s not included proclamation, election and which v. Mitchell, supra, Gullickson had held would not open then be military election because of the leave allowed Chapter 47, under Laws Bonner, attorney to John general elected people four-year in 1940 for a term. case, Bottomly,
In the third rel. Niewoehner v. State ex 116. (2d) Mont. again was both relator- quo against and of counsel. action warranto R. V. Bottomly, appointed who had been the Governor under
460 the office
Chapter 47, 1941, perform the duties of Laws of military Bon- Attorney during absence of John General spite ner, four-year term. in the officer elected Mitchell, supra, and in of this court’s decisions in Gullickson ap- spite attorney general did not of the fact that the office of pear upon the proclamation or the Governor’s election ballots, respondent election claimed the office virtue of 170,000 write-in him ballots voted. votes received out of some upheld again again The relator was court unsuccessful Chapter 47, dissenting. 1941, Justice Morris Laws of Mr. speaking through Mr. century ago, half said
As this Faulds, 17 Haskell v. ex rel. Chief Pemberton State oppress 285, 289: have no desire Mont. “We delicate fully appreciate the respondent. understand and We case, as peculiar in this position of this unenviable an offense sense, trying a matter that involves are, in a we regret have felt called against that we our own tribunal. We Only matter at all. upon by duty proceed sense of pro court and its duty defend the the belief that it was our contemptuous, and calumnious ceedings unwarrantable, ’’ matter. inspired attack us has moved contempt. guilty of find the defendant stated, we above As finding with this in accordance court that order of this It is the Niewoehner, appear before George E. respondent, guilt judgment the twentieth pronouncement of this court for the p. o’clock, m. 1944, at two day December, judg- pronounced the Court December Note: On Niewoehner. upon respondent imposing $250 a fine of ment 474): p. Opinion Court at (See Supplemental also 1944.) December (Filed Dissenting opinion, Morris: Mr. Justice us majority now before by opinion
I dissent. hearing in this just preceding the bench read from the one fact being the the same. Such substance, much are, matter, the Montana to not encumber may found' advisable logic- would omitted it If either be both. Reporter Pacific *20 ally first, permit Ias do not intend to numerous majority assertions and go unchallenged conclusions of the to I incorporate major shall portion my dissent to the former opinion in this. opinion majority
The last like the former is burdened throughout with one assertion after another that this that or issue, immaterial; contention the contemnor is in or is charged having that Constitution; no one is violated the that no any justice decree is asked oust to office compel any him to turn over to the state monies received for services from other than ques- sources the state and that such tions cannot proceeding. be determined in this It should be any obvious to reasonable mind that would be futile to com- mence any actions for purposes such while confronted with court that speak minutes do not truth as to the absence or presence any member technicality of the court. One after interposed another was hearing, at the and others are now relied deny any right one the question the minutes court or have them permitted corrected. Technicalities are procedure in the interest of dispatch litiga- reasonable tion, but such technicalities never were intended to shield the judiciary, particularly members of this court from criticism appropriate within quotations bounds. The numerous from vari- ous power decisions as to the punish of courts to cite contempt are a energy. waste of time and No questions one such power legal within and rational bounds. It is the abuse power problem that is the that confronts us here. majority opinion respondent’s
The denied disqualify motion to justices certain support of this court to sit in In this case. ruling question their on that five Montana cases were cited. In all proceeding those cases each when came here was in the nature of a review of act some or decree of the lower very court. The situation parties is different in all here. The those unquestioned cases had at all right, rulings times the if the adverse, lower court were to seek redress from court. In respondent the case at bar except has no means of redress
such as the federal In courts afford. none of cases cited any suggestion might there that Justices of this court not be disqualified, expressly provides “any section * * * justice any must proceed not sit or act as such action or ’’ ing : 1. party, To which he or which is interested. alleged Supreme that “the Minutes of the misleading and Court of Montana are are not true state Erickson,” (This representation of Mr. Leif of the conduct etc. allegation in should named Chief Johnson fairness have also.) allegation Such is true as is shown the dissent of the 17, 1944, dissenting writer filed extended docu November to the “Opinion majority ment of the filed November 15th entitled ’ prior Order. Per Curiam.’ such dissent it is shown that February 14, 1940, the minutes of this court had at all times *21 preceded by word the names of the Justices listed thereon the ap not “Present,” present and since that word has time the February peared impossible in the It after minutes. thus became 14, 1940, to which Justices were determine from the minutes any present particular at time and which absent. were change keeping in minutes was purpose of the the What the all the clear that result is that appear, but it is the does were Johnson and Justice Erickson that Chief Justice times 1942, 1943 and 1944 such absence is not shown in absent they Both stated that were by of the Court. have the minutes Adjustment they serving Railway Board. Can Chicago in on the they in a say, that were not interested say, or either of them in at bar the way keeping in the record the case financial off $7,000 in while absent from fact that each earned excess Chicago Board, and at time serving the the same Montana my in this court. This drawing their salaries as members of judgment disqualified both under section was such an interest reputation both these Justices to sit this case. The was at issue serving the state as members of this court hearing, disqualified were under sec Niewoehner and both the by majority that It is said tion Revised Codes. apply in con- disqualification judges does not affidavit of obviously tempt disqualification to which refer cases. The applies (see 4 of section only judges district court subsection 8868). part applies 8868 that to Justices Su- section
preme Court subsection is so clear a child could have meaning. grasping no excuse for not its respondent “pre- that was not The contention cause by every judged” and act of the is discredited almost move majority. presented his petition When Niewoehner first peremptorily filing, right by to do so the Chief denied authority from Court. Justice without Two members of campaigning. candidates for absent were office were Morris, present. Justices Adair and the Chief were attempt was not Niewoehner Justice Morris advised of the petition filing to file his until its had That denied. act been prejudged alone is sufficient to show Chief that Justice had demands, not mean give Niewoehner’s did him hear- ing. proceeding prejudicially prejudged That the had been again striking shown majority the order issued the records dissent of Justice Morris the citation. relative to Again majority begun by citing for direct contempt, showing an intention to make short shift with the respondent by disposing summary pro- of him manner in the vided for contempt only direct saved blunder were from that by the lawyer. intervention proceeding If there was ever a perfectly prior more prejudged shows the cause was hearing my rather has it. extensive research not revealed every act majority premises utterance of since *22 the Chief denied right petition, Justice Niewoehner the to file clearly already became obvious that Niewoehner con- demned and hearing begun the on the 21st a farce. inst. became supposition my
The reason of dissent to the issuance disqualified, only of the I was citation is untenable. inter- The I preserve efficiency est have in matter integrity the is to the highest justice our state and make it an instrument of oppression. Erickson not of Chief The Justice Justice pecuniary suppressing
had a interest a revision court’s of the by keeping off minutes the minutes the record of their evidence duty length from absence for such of'time as each to enabled power receive for services rendered under other than state eight each, of Montana some all seven or thousand dollars which was received in VIII violation section of Article A supposition of the Constitution of state. further grounded upon presumption that if all five of Justices disqualified were member no of the court would be left to call judges compose provided by district a court as section ques- of Article VIII the Constitution is erroneous. The same tion preceding Tipton was under consideration the case of Sands, 103 (2d) 662, Mont. 60 Pac. 106 A. R. and was L. readily disqualifying solved four Justices themselves calling judges remaining Justice four district court who assembling remaining could dis- determined Justice qualify himself, court, speaking through four district and the judge up judges, could call in an additional to make the court of remaining five, judges preferred district to have but the four furnish a no sit with them. Either course would Justice any pecuniary member of which had or other selfish interest involved here. a court in at bar would the issues Such the case provided antagonism have a court removed from natural toward have resulting personal Niewoehner criticism. It would State been wise course to have harkened to the advice of the approval Bar Association submitted with the of the President and all members the Executive Committee that all five disqualify Personally I would have Court should themselves. I happy comply I been with that advice whether believed disqualified were or not. grounded disqualification on the common against defense having a “substantial necessity
law relative to the litigation” illustrates in the event of or direct interest majority driven in their efforts which absurd extent to palpable attaching violation of section evade the odium provides: “No Constitution which VIII of the 30 of Article
465 judge district court shall justice supreme court nor of the of the fee, allowance, mileage, any compensation, accept or receive any office, in account of his perquisite or on or emolument ’’ by whatever, except salary provided form law. allowance, justice any compensation, Note: shall “No receive office, any in perquisite or on account his or emolument salary provided by form law.” What was whatever, except the justices per fifty day each of the two dollars received mentioned if it on account of his office? were emolument 45 S. practice Board, Under National Mediation U. of the seq., page Eighth Report C. A. Annual secs. et of the Board, supreme National of the Mediation members of the courts of the various states were called National Railroad to sit on the Adjustment Board, being mem- it was reason of their hence bers of this court that Justices were chosen to sit on the two Chicago per day. $50 Board and receive each day per attempt appear $50 that the majority to make
The
Chicago
a member of the
as
for services
expenses
received
in
Niewoehner Case.
interest”
“pecuniary
Board were not
have this court
attempting to
that Niewoehner
It
is clear
members
of its
practice of some
of the
take official notice
receiving
Adjustment Board
Railway
accepting office on the
members of
as
than their salaries
therefor other
emoluments
Constitution, and
provisions of the
of the
in violation
fact
the Court of
minutes of
record
to make official
jeopardize the
would
record
absences. Such official
of such
him a
way
give
in such a
salary
member
of the
office
attempt
any
to make
pecuniary
interest
interest and
direct
court. Such situation
from the
his absence
record of
official
here-
absented himself as
has
the court who
gives any member of
in the Nie-
interest
pecuniary
a direct
inbefore mentioned
Certainly
illegal.
to be
if
absence were shown
woehner
Case
state,
should
this,
last resort
member
the court of
no
a decision on
to avoid
technicality
advanced
permit a
to be
charge
biased when
he is
whether or not
question seriously
against
effect
brought
(See
him.
Cooke v. United
States,
State v. Pac. support import contention that the minutes the court verity Such and cannot be overcome extrinsic evidence. con- presumption predicated clusions in that ease that were kept pursuant were law.” It the minutes “made and is idle to contend that when records of a court contain false and misleading may no statements that evidence introduced to misleading show such false and entries. All that the Niewoehner petition asked was in that our minutes be corrected to effect speak By merely listing the truth. the names of members presence nothing the court the show as to the minutes any incomplete By showing absence of Justice. minutes are challenge they import verity does not the rule as to so brings much recorded facts as is but issue vital known appear exist from other evidence that does not the minutes. said, through what speaking Let us this court Chief Jus see Callaway, 798, Poole, 178, 68 216 tice State v. Mont. Pac. amending In about court records. defendant had case the appealed degree; murder first from conviction of in the new trial appears motion for a it that the minute record did not
467 during the present was at all times show that the defendant appeal perfected After the state asked leave to trial. supplemental transcript consisting minutes file of corrected opposed request. lower court. defendant This court said: ‘‘ every court doubt that of record has the inherent There is no right proceedings correctly acts and to be set forth to cause its 146, 60 (Currey Co., v. Electric R. Mont. its records. Butte 243.) actions, appears 199 in civil Pac. This is the rule there why applicable (People in criminal to be no reason ones. 628, 306; Shain, v. 111 Ward, v. 141 Cal. 75 Pac. Cal. Kaufman Tucker, 4 16, 393, Rep. 139; 43 Pac. 52 Am. St. Okl. Cr. re 221, 665; Breeding, 169, 111 75 182 Pac. Okl. Pac. [Petition of] 899; 637; Mulligan v. People, 126, Benedict v. 23 Colo. 46 Pac. People, 5; Winter, 24 68 Colo. 189 Pac. v. Idaho State 739; 436; Gilbert, State v. Or. 112 Pac. Mitchell State, 1009; Hart, [5], 6, 45 Fla. 33 So. State v. La. 161.) possession So. Inasmuch as its retains power minutes and records it has the to correct and amend the same, so them as to make conform to the truth whether an *25 appeal taken (15 977.) While, appeal being or not. C. J. taken, jurisdiction case, court loses it does not its records, by misprision clerk, and where reason of or where through inadvertence or mistake matter has been omitted some * * * record, may the correction made. trial be The having right had the to amend its to state minutes so as truth, precise question presents now itself to whether may It the amended record be filed this court. would abe stronge commentary upon justice this court should if refuse * * permit the truth to be shown *. The state’s motion for leave transcript granted. (Pappot Howard, amended file the v. 581; 306, Booth, 154 45 App. 470, Ala. So. Breene v. 3 33 Colo. 1007; 579; Higgins, Pac. v. Blanchard, Judson 3 Conn. Adams v. 23 13, 321; 447, Fla. 1 111 Salinger, So. Culbertson v. Iowa 82. 925; 22 Swango, 20, Ky. N. W. Chambers v. 59 S. Law. W. 923).” Rep.
468
We find jurisdictions: the same rule effect other may “The minutes of court corrected, any time, at to reflect (State Johnson, the truth.” 592, v. 171 721.) La. 131 So. “Every general court of record authority has over its own power records. The of such a court to correct its records so as to ’’ them speak make (Brown the truth Sutton, is inherent. v. 158 78, Miss. 121 835, 837.) So.
In Burnett Burnett, v. 11 (2d) 259, (2d) 89, 90, Cal. 79 Pac. it was said:
“Admittedly a trial court parte its own motion or on ex jurisdiction application, has to correct mistakes in its orders and records which actually are not the result of the exercise of judgment. (Lauchere Lambert, 274, 412; 210 291 Cal. Pac. Willard, re Estate Cal. 73 Pac. E. A. L. 554; Carter v. Trucking Co., (2d) 198, J. W. Silver Cal. 733).” (2d) proceedings against
The initial Niewoehner are without precedent to sustain them and void for this reason: nothing pending in this court when Niewoehner
There was presented petition filing, anything pending for nor was there his circular before us when he mailed his letter to the members of By improrer pro a nunc the bar of the state. use of tunc attempt order an was made to have that remedied situation petition having records of court show that Niewoehner’s pending at he sent out his circular letter. Here was the time presented petition filing are the facts: Niewoehner for 7, 1944, right it, October he was denied the to file and was later bring contempt. original attempt cited Niewoehner majority before the court was abandoned as stated filed an affidavit which was the H. C. October Hall proceedings against and on commencement of the Niewoehner things which he was tried convicted. After all acts necessary hearing, time deemed to the were done pro hearing set, 15, 1944, November a nunc tunc order *26 directing the Niewoehner was issued and filed clerk to file the presented by Niewoehner, petition original as it was of the date 7, 1944, thereupon ordering after it filed another October denying petition. Hall order was issued Hence when the affidavit filed issued thereunder and served and the citation nothing pending Niewoehner there was whatever before only judge contemptuous court. a Criticism of court or pending when while which it before made the cause to refers is (In (2d) 365.) Nelson, court. re 60 Pac. Mont. directing pro petition order filed as of The nunc tunc 7th, stamped filing under October when it was on its face for 15, and entered on records under the latter date of November illegal employment pro improper an of nunc tunc date was universally order, recognized and under rule was void and pro order in State no effect. This court defined nunc tunc 304, 305, Francis, 659, 664, 58 Mont. 194 Pac. and the circum- may stances wherein it used: be “ pro then,’ literally, ‘Nunc tunc’ ‘now for and a valid means pro which, good reason, nunc tunc order is one for some should date, have been therefore, made at an earlier and which may court cause to take effect date when it should as been made. may have The circumstances under which this jurisdiction Lenoir, done in this concisely stated in Power v. Mont. may, follows: in all ‘The * * * proper cases, judgments pro enter orders and nunc tunc. The cases in which the court will this are two classes: The do parties first consists of those which dies after one rendered, decision, verdict has been or the cause submitted necessary judgment it is to enter the as of the date of * * * cause, prevent injustice. submission of the The second judgment has composed where order or class is of those cases court, but, reason of actually been or rendered made blame, parties entirely to misprision for which the are not some ” un- nothing left has never been entered.’ There was done or 7, 1944, by court, by the clerk of the done on October by any else, petition was denied at the time Niewoehner’s one pro order; failure b'y a nunc tunc filing, that could be remedied' any thing, any entry perfect the court records to do to make
470 was by not “overlooked reason inadvertence,” of otherwise, or filing pro the nunc tunc on 15, 1944, November have 7, effect as of October 1944, was any purpose. ineffective for Moreover, to such extent majority opinion as may the be based on the Niewoehner letter 9, 1944, pro October the nunc tunc order of 15, 1944, November directing that peti- the Niewoehner tion be filed as 7, of October 1944, antedating letter, it is to be condemned partaking iniquities the same post as ex legislation facto fixing increasing or penalty a relating back for an act which was lawful at the time it was committed. Bailey
It Rennert, Ky. was said v. 213 262, 280 S. 1103, W. 1104: was, therefore, jurisdiction “The court without to enter 23, the order made 1925, on June unless it was entered nunc pro In order, however, tunc. for the court to order, enter such an there must be some record authorizing it; evidence e., i. some minute, memorandum, entry or other showing that modified the actually order was rendered day, by on the former but over- sight was not entered on (Citing the record as rendered.” cases.) The common employed use of such order is to enter on the court judgment records a by or oversight decree which was not entered when Huggins rendered. It was said in Johnston, v. App., 937, Tex. Civ. 3 S. (2d) only W. 940: purpose “The a pro entry nunc tunc correctly upon evidence the records of the court a judgment, decree, actually by or order made court, but for proper some reason not entered of record at the ’’ time. Baylor 44 Killinger, App. 523, 512, In v. 513, Ohio 186 N. E. “ * * * pro it was said: nunc tunc feature the entries in wholly any purpose volved was valueless for under facts pro alleged, entry not, and void. The function of a nunc tunc by fiction, performance actual an which antedate the act occurred, never but is to make the record conform to that which ’’ actually done, at time it was done. Deuser, 159, 364,
In Becher v. Mo. W. it was S. tu,nc pro entry said: “it is not admissible make a nunc based upon testimony, upon memory any amount of oral nor only fur- judge. made ‘evidence Such entries can cause, something papers and files nished docket, as basis record, judge’s or in book or the minute ” by.’ to amend 265 N. Haray, Mich. W. Haray case, quoting former said: Michigan, supreme * * * entry now of some is an pro entry made “A nunc tunc done, effect as of actually previously to have thing which was action supply omitted is not to former date. Its office of action record supply omission but to * * through or mistake really had, inadvertence but omitted *28 mul any of the this found There is no variation from rule necessarily thereto. It follows titude of decisions relative acts done nothing pending was the court when the there before by arraigned for con Niewoehner were for which he was done Court, v. tempt. rel. District the ease of State ex Metcalf 46, 278, 281, 1916F, 132, Ann. 55, Mont. 155 Pac. L. A. Cas. R. court, (In Pryor, 1918A, quoting from a Kansas re case 747) judge, Kan. and no Rep. 26 Am. said: “No high low, beyond public or reach of and individual criti is the power After disposed of, judge cism. a case is or has no court compel thereof, attorney public, any to or the or individual otherwise, rulings correct, proper, his conduct or consider his to any stain, punish contempt even integrity free from or for to thereon, mere criticism how severe or animadversion no matter unjust.” or 591, 594, N. E. 97 A. L. R. State, 207 Ind.
In Nixon v. judge or court said, publication “If the criticises it was has been criticism has to do after matter with which the adjudicated proceedings ended so that the finally and the thereby judgment carrying cannot be ob out the court’s contempt and be sum structed, publication not cannot is false, unjust punished malicious or marily by however court by remedy judge an individual is action may be. The of the ’’ prosecution or for libel. false petition his circular letter contained If Niewoehner’s or defamatory any justice statements proceed as to should lie against him personally. Holloway,
Mr. in speaking ex State rel. Court, supra, contempt case, District quoted with Metcalf approval Ruling Case Law as follows: “ obsequious ‘The common-law rule founded and flattering principle judge representative that a was the king, theory government royalty which but invests imaginary perfection, and which question forbids or dis- cussion, diametrically opposed principles is to the of a free popular government, in liberty which utmost latitude and affecting public the discussion of business and the con- positions public trust, duct of those fill who that is consistent decency, only allowable, with truth and but is essential public amply welfare.’ And the text is sustained cases.) authorities. (Citing our Constitution recognized,
“The framers of without limit- power punish contempt (section 3, ing, the of the courts to contempt law 8); Art. but understood be a law given necessity, any its exercise instance to be measured necessity which calls restricted it into existence. by investing purpose subserved our such courts with extra- ordinary power decorum, them maintain to enable order and respect compel process, for their orders lawful enable investigate and them to the causes before determine them with- *29 * * * any out let or extraneous hindrance sources. approach power any per- “It the nearest autocratic of to government, mitted under our form of and to is not be extended by implication. operations its within To confine the limits we impair indicated have will the the coiirts. Libel usefulness of may prosecuted criminally by be ‘Bespect still civil action. compelled; A^oluntary to courts cannot the it is tribute of the public worth, intelligence, to virtue and they and whilst judgment seat, long, longer, found the will they so and no public judge by retain the public confidence. If a be libeled the press, and placed equal grounds, he his assailant should be on country; and jury the be a of should and their common arbiter ’made. ample will be injury, remuneration if has received 395).” People, [395, (Stuart Scam. Ill.] majority dealing with Niewoehner in appear It that the would rule and became obsessed must reverted common-law have to the in own,” “king’s robed with were notion that the the being the instead imaginary perfection, incapable of of error of beings they are and ordinary, fallible human servants majority people masters. of Montana instead of their The applied power” certainly have that “autocratic mentioned and power Mr. cite Holloway, in case at bar. The to any punish contempt in dangerous power most for is the vested department Dangle, government. Mr. Edward M. or division of ‘ ‘ ’’ say Contempt, preface book his recent on this to has of that work: lack contempt cases increasing number of and the
“The ever power principles application for the clearly defined uncertainty and contempt have created a state confusion upon this layman lawyer and to look which has caused alike power flexible, legal with fear and distrust. uncircumscribed judges accuse, decide, and power try, imprison The constantly contempt presence has been con- committed their greatest dangers demned a free nation. as one of opinion among uninformed “It is a matter common public particular func many judges regard tend to their * * * establishing contempt right tions matters punish contempt disregarding con even to the extent of legal guarantees. and fact courts stitutional other that the accusers, act judges, creates prosecutors, as the fraught danger. situation great safety government dependent to a extent of our
“The people respect have for which the confidence every by honorable duty to strive courts, and it is A respect. preserve merit and that confidence means to power con- program regulate the administration judiciary tempt encouraged should be fostered *30 protection public members of tbe bar for tbe of the and the hoped courts. It may some measure.this volume serve as an antidote to the fear of oppression, and illustrate to present courts exercising contempt manner power may degrade impugn judiciary do dignity more very than contempt.” conduct which constitutes the There can this orders, be called enforce court’s decrees judgments, arise, powers if the need should all the vested department government, the executive of the state with department control that has over all the militant forces at its Hence, command. the individual such as Mr. situated Niewoeh- ner is in any power this has no case recourse to within state protect against unjust him against condemnation rendered highest him the court in state.
Supplemental Opinion. (Filed 26, 1944.) December PER CURIAM. people
The provided the state of Montana have in their justices Constitution that majority necessary “shall be quorum pronounce to form a (Article VIII, decision.” 5.) sec. 15, 1944, On December justices four of the five com- prising per this court concurred curiam decision herein and, to opportunity furnish an remaining for the Justice to prepare his thereto, dissent ordered that the court’s decision promulgated be not until December on which date the decision was released.
On December submitted Mr. Justice Morris dissenting opinion beyond goes legitimate which far purposes beyond of a dissent far the issues and the record contempt proceeding. proceeding presentation
This was commenced to the charging court of an contempt. affidavit The respondent’s one issue was charged whether conduct there con- contempt. stitutes accusatory against affidavit Attorney Niewoehner herein indictment information or into an properly be turned
cannot It is the re- against any its members. against this court or *31 any of other and not that that is the issue spondent’s conduct person. 662, (2d) 60 Pac.
Tipton Sands, 103 Mont. Corrupt proceeding instituted under the a A. L. R. was B. Sands as chief Act the election of Walter Practices to contest Mr. campaign Sands justice pre-election this his of court. advertising wherein he stated published and matter circulated salary justice part annual paid as of his $1500 that to each legislature in Codes, by Revised the under section enacted 30 Ar- 1899, is section of unearned and unconstitutional under VIII district court of Constitution Montana. The ticle the county judgment in favor the rendered its Lewis Clark appeal an defendant was taken this court. On the Sands to appeal justices except all the of this court Mr. Justice Morris disqualified in participate themselves and case declined the and district in judges were sit their stead. The ease called to by judges. was heard ma- and four district The Morris jority opinion held Chief Justice Sands’ contentions without merit good faith, but that were made therefore decided the in the Mr. his In his dissent case contest favor. Justice Morris said: opinion holds, substance, that the contestee majority
“The guilty violating Corrupt charged, the Act as was Practices alleged reason that there is but affirms the trial court for the support findings substantial in the the evidence record by act was trial court that the violation of the contestee affirming good assigned made in No for faith. other reasons * * * judgment. Why inevitably contestee, arises, did not the question “The men under prudent from all '"obligation under due being proper action to circumstances, test the institute a such relating jus- the salaries of constitutionality statute law invalid for that had believed the He he tices? testified he had had extended years, and the record shows several controversy secretary of with the state over the correct amount filing a fee when candidate Chief Justice he became Attorney secretary solve, which the called General to Attorney legal contestee was advised General salary $7,500. was He secretary state, undertook to force the by legal a action, by much contention, accept filing but upon $6,000 salary. fee lawyer based As a must have known secretary accept any salary could not on fee fixed other than the recognized legal amount every justice as and drawn years; yet last 30 presumed knowledge face of such contestee agitate matter, paid continued to $15 the extra protest. of the fee resulting advertising under arising from the newspaper notoriety following good was no doubt considered for a just candidate launching a campaign. quite It is obvious salary question contestee believed prize cam- paign issue, given place it was first all the four lots of *32 campaign gotten cards by out and circulated him. He testified he discussed the issues by over and stump. the radio on the So this line why evidence we at arrive the obvious answer of of contestee did not test in using the matter instead as of prise special A proceeding issue. brought could have been agreed directly Supreme an statement Court, on of in facts being and an that was preference, argued action entitled to and long general decided before the election. But that course the deprived campaign issue, candidate would prize have been of his many would, probability, purpose and a vote all lost. plea good stripjted garb is revealed of faith is thus of its public consumption which it had been decked out for as economy, glaring issue and in its nakedness we behold a of political trick, spread impugning in- abroad over state tegrity every occupied place individual who had on the a of Supreme years. Bench the state last 30 ‘Good of faith’ question regularly that submit the demanded contestee to the adjudication charging constituted tribunals the state for before of filching all other members the court were thousands of of treasury illegally. dollars the state It must be remembered opinion, law was unconstitu- say that, in his did not that he $1,500 was unqualified bold, made the statement tional, but all his From the statement ‘unearned unconstitutional.’ just Justices the last might said, well have ‘all cards he thirty years $1,500 each, year for thirty years have stolen each positive made statement treasury.’ state He out carry question was de- such assurance as that the notion fully to announce a con- termined and settled. He assumed positiveness clusion with all the a court decision deliberate securing then, purpose votes, avowed when haled plea statements, into court to answer his false comes here on * * * of good faith! in this case to contend that the eontestee plain palpable should violation law be excused for a cheapen and degrade because he believed it invalid is to member, plea court of which the is a and to eontestee make ignorance ours.) corruption.” (Emphasis shield for disqualified argues that two.of the Justices “were
The dissent Revised Codes” reason of their interest under section compensation question receipt their as ref- whether VIII the Constitution. erees violated 30 of section Article provision Tipton v. which in This is the same constitutional Sands, supra, Sands had accused “all Justices the defendant Morris, violating thirty including years” for the last Justice chief provision regarded by Morris as the and which case, dis- yet in that consider himself issue he did not there Codes, qualified did deem that Revised nor section two any application he considers had whatever. Here however disqualified attempt has been made Justices because the inject obviously and cannot those issues which are extraneous be determined. *33 Mr. hearing, contempt proceeding this on
Before came facts re- writing Morris stated in which the that spondent set forth in motion to correct Niewoehner his complete against any pro- true and are a minutes “are defense ceeding contempt.” Notwithstanding positive unquali- such dissenting opinion sup- that, fied commitment the recites “The position my reason of dissent the issuance of the cita- I disqualified tion was is untenable.” dissenting opinion contains various inaccuracies and ad- appear verts numerous matters which nowhere the record bearing contempt and which on pro- have no the issues of this ceeding. Any attempt unditly to discuss them would extend opinion judicial purpose. serve no
Respondent has indicated his intention to seek review of this decision Supreme the United States Court. Will he present petition there Clerk of that court at nine o’clock Saturday morning; some demand that he heard be argument oral thereon; day fix ten o’clock the same hear- ing; justices demand that the marshal have on the bench at time; and, permitted orally the event he is then argue his cause, he, following every will Monday, mail to lawyer practice admitted to Supreme before the United States Court letter complaining ques- of -his-treatment? ask this To tion should be to answer it. Such conduct cannot tolerated. It is contempt.
STATE, Respondent, SALINA, Appellant. (No. 8458.) (Submitted September 19, 28, 1944.) 1944. Decided December (2d)
[154 484.]