Powers v. People , 114 Ill. App. 323 ( 1904 )

Mr. Justice Stein

delivered the opinion of the court.

Proceedings for contempts are classified as civil and criminal. When a person fails or refuses to do something which he has been ordered to do for the benefit of the opposite party, and he is punished therefor either by imprisonment or fine, the contempt is a civil one. A criminal contempt embraces all acts committed against the majesty of the law or the dignity of the court, and the primary purpose of their punishment is the vindication of public authority. People v. Diedrich, 141 Ill. 665; Oster v. People, 192 Ill. 473; Thompson v. Penn. R. R. Co., 48 N. J. Eq. 105; 7 A. & E. Ency. of Law, 2nd ed., 28. As in Oster v. People, supra, the purpose of the present proceeding “was hot to enforce any act for the benefit of the creditors of the said firm or to advance the private rights of any such creditor, but to vindicate the authority and dignity of the court. The proceeding was punitive and for the purpose of punishing” appellant. It “was criminal in its nature.” Section 280 of our Criminal Code provides that “a criminal offense consists in a violation of a public law in the commission of which there shall be a union or joint operation of act and intention, or criminal negligence.” Before inflicting any punishment on appellant, it should, therefore, clearly appear, inasmuch as the act constituting the alleged contempt occurred out of the presence of the court, that he was actuated by some malevolent intention to lower or assail the. dignity of the court, or wilfully and knowingly interfered with the administration of justice. Even in civil contempts there must be an intent to do wrong or a wilful refusal to comply with the order of the court. Where a party is attached for failure to pay alimony he may show that his disobedience was not wilful, but due to pecuniary inability or some other misfortune. O’Callaghan v. O’Callaghan, 69 Ill. 552; Dinet v. People, 73 Ill. 183. In Dines v. The People, 39 Ill. App. 565, which was an information for contempt against the clerk of the court in destroying ballots in his custody in violation of the court’s order to preserve them, it is said: “ Plaintiff' in error might be presumed to know the orders and proceedings of the court of which he is clerk in so far as any person might be damaged by reason of his ignorance, and if may be that in such cases he would not be allowed to plead his ignorance; but in a proceeding like the present for contempt, there must exist a wilful intention to disobey or “obstruct the orders of the court. In other words, there must be an intention to do wrong.” In Hughson v. The People, 91 Ill. App. 396, it was held that the power to punish for contempt cannot be properly exercised where the disobedience of a decree is nob wilful and does not clearly appear to have arisen from an intent to set at naught the same or bid defiance thereto.

That in a technical sense the publication of the article complained of was an interference with the partnership assets in the hands of the court through its receiver may be conceded; but it was so only in an indirect and remote sort of way. The Athlete died an early death with the filing of the bill, and the receiver made no attempt to revive it. Under such circumstances it was a most natural thing for appellant as a means of making a living to engage in the enterprise of publishing a similar newspaper, to call it the successor of the defunct one, and to announce that “it will be sent to all paid-up subscribers whose names are on the old list of The Athlete.” There is nothing in the proof to show that he was aware or had any reason for believing that his acts constituted or might be considered an interference with the functions of the receiver or the assets in his hands. For aught that appears he wrote the editorial and began the new enterprise in good faith, believing he had a right so to do, and without any wrongful intention whatever. In the course of the proceeding he expressly disavowed under oath all intention of disobeying “ any order or direction of this court,” and there is no proof to the contrary. In compliance with the suggestions of the court, he published a retraxit calculated to remove all erroneous impressions that might have arisen from the publication of the article in question. His acts resulted in no harm or damage to any one, and though technically improper, do not call for or deserve punishment. A court should not cause inconvenience or loss to any one subject to its jurisdiction because of some mistake or inadvertence on his part, even if there was, in a legal sense, interference with its jurisdiction.

As early as 1842 Mr. Justice Breese in Stuart v. The People, 3 Scam. 395, uttered these memorable words : “It(the power to punish for contempt of court) may be so frequently exercised as to destroy that moral influence which is their best possession, until finally the administration of justice is brought into disrepute. Respect to courts cannot be compelled; it is the voluntary tribute of the public to worth, virtue and intelligence; and while they are found upon the judgment seat, so long and no longer will they retain the public confidence. * * * It is at best an arbitrary power and should only be exercised on the preservative and not on the vindictive principle. It is not a jewel of the court to be admired and prized, but a rod rather, and most potent when rarely used.”

The order appealed from is reversed.

Reversed.