State v. Shumaker , 200 Ind. 623 ( 1927 )

The Attorney-General of Indiana, by an amended verified information filed in this court, in substance, alleged that the respondents, Edward S. Shumaker, superintendent and directing head of an association known as the "Anti-Saloon League of Indiana," Ethan A. Miles, an attorney and counsel for the league, and Jesse E. Martin, a trustee and attorney of the league, are guilty of an indirect contempt of this court, in that, Shumaker, with whom Miles and Martin collaborated, prepared, printed, published, circulated and distributed to the clergy and members of the Woman's Christian Temperance organization throughout the state a pamphlet, in which was incorporated misleading, false and defamatory statements of and concerning the Supreme Court, its judges, and decisions in respect to violations of the liquor laws of the state, a copy of which pamphlet, including said false and defamatory statements and matters, was, by Shumaker, caused to be printed in the Indiana edition of the "American Issue" of February 6, 1926, and circulated among its readers and subscribers. The entire pamphlet, as reprinted in the "American Issue," is exhibited with the information, and purports to be an annual report of the superintendent of the Indiana Anti-Saloon League, wherein, after asserting that the Supreme Court of the United States in 1907 changed its rule theretofore existing admitting evidence obtained by an invalid search warrant in the trial of an accused person, and for so doing has been very severely criticised by a text writer, it falsely and contemptuously stated that this court has "held that a defectivesearch warrant should operate to let a guilty person go free"; that"this court in the Callender case from Elkhart, and moreparticularly in the Flum case from Beech Grove in Marion County,and these reenforced by a number of later decisions, has heldthat no matter how guilty a person may be of violating theprohibition law, even though he might have as many as threestills in his home and be engaged in manufacturing a ``white mule'that is poisonous and deadly in its effects — should there be anymistake in the search warrant — such a person must be turnedfree. We think that such rulings, coupled with the splitting ofjudicial hairs in many cases coming before our supreme courtwhereby substantial justice has been defeated repeatedly, hasbeen to a great degree responsible for the great increase in theappeals of criminal cases to our state's highest judiciary." In1918, twenty-four criminal cases were appealed to the StateSupreme Court, while in 1925 there were 212. (Our italics.)

After asserting that a majority of the court is at least liberal in its sentiments, the report states: "One of its members is said to be bitterly hostile to prohibition, and, if he had it in his power, would wipe all prohibition laws from the statutes." Under the heading, LIQUOR ASSAULT ON COURTS, the report states that: "We well remember how the late Colonel Eli F. Ritter, pioneer attorney for the temperance forces in Indiana, used to say to us that when the liquor interests could no longer control the legislative or executive branches of our government, they would then turn their attention to our courts and seek to control them. I think there is no doubt that this is true today in abigger sense than ever before, and that the law-abiding people ofour state will have to strive for the nomination and election ofjudges of such high judicial equipment and such a sense of honorand loyalty to the Constitution and the laws enacted thereunderthat they will give judicial decisions carrying out in full, and effective manner both the letter and the spirit of ourConstitution and laws enacted thereunder. (Our italics.) To those who would urge that we are attacking the courts, and encouraging disrespect for the same, I would say that our courts are the servants (our italics) not the masters, of the general public, and that nothing but the highest respect should be held for our American judiciary, even though it may at times err."

The report then proceeds to call attention to the newspaper attacks on the dry law, what the so-called liquor interests are doing, and that many "wet" bills will be before the next Congress which will receive over 12,000,000 citizens' signatures for the repeal of our existing prohibition laws, and the church must rally and meet the oncoming titanic struggle, suggesting the necessity of having thousands of dollars at once for the circulation of literature and other uses, and finally, under the head of STATE BECOMING AROUSED, says: "The above is a darkpicture, but it should be understood by the righteous people ofour state and nation before it is too late." (Our italics.) Then follows a statement as to what is being done on what is termed "Field Days," to arouse the people to contribute money, and referring to the fact that at Fort Wayne $3,000 in cash and subscriptions and in St. Joseph County "three dozen public meetings were held," resulting "in cash and subscriptions over $5,000" for the cause. "If the entire state can be thus arousedbetween this and the time of the primaries, we hope to be ablethen after the election in November to present again a solid drydelegation, both in the Senate and in the House ofRepresentatives, from Indiana. . . . And we trust that the nextelection will give us a Supreme Court that will be dry and notwet." (Our italics.)

The information then alleges that these respondents always expend large sums of money in every general election and particularly in elections where judges of this court are elected; that at the time the pamphlet was published and circulated as aforesaid, and by Shumaker caused to be reprinted and circulated in the Indiana edition of the "American Issue," there were pending in this court for decision many appeals from liquor law convictions wherein the question of the admissibility of evidence obtained pursuant to alleged unlawful searches and seizures was involved. Twenty-one of these cases are referred to by number, and, for the purpose and object of controlling the decision of these cases and all others of like character pending or which might be appealed, the respondents entered upon a plan and scheme and are putting the same into execution, as clearly appears from the false and defamatory matter published and circulated as aforesaid, to intimidate and influence the judges and thereby to control the decisions of the court in such cases by falsely reporting certain decisions of the court, by falsely stating the personal attitude of the judges toward the prohibition cause, by imputing to the judges false and dishonest motives in rendering decisions in this class of cases, and thus and thereby to mislead and prejudice the people of the state against the court and its personnel, and to keep and hold the judges under the constant fear of being, by respondents, misrepresented as to their character, their integrity, their work as judges, and of political defeat for re-election, unless the decisions of the court conform to the opinions and desires of respondents, regardless of the command of Art. 1, § 11 of the Constitution of Indiana; that, as evidence of respondents' plan, scheme and purpose of controlling this court's opinions in the particular class of cases, Shumaker, a member of the clergy and head of the Anti-Saloon League, having a large acquaintance with the clergy and church membership of the state, when permitted so to do, occupies church pulpits for the purpose of arousing people to political action and for soliciting funds to be used largely to control political nominations for public office, or for the election of public officials.

The information, in furtherance or in aggravation of the alleged contempt, and as evidence of the respondent's willful purpose to control the decisions of this court in the class of cases to which reference has been made, refers, by exhibit, to a certain article in the Indiana edition of the "American Issue" of date October 18, 1924, concerning one of the judges of this court who was at that time a candidate for re-election. A portion of the article so published and circulated is set out and characterized as a false statement of and concerning the opinion in what is styled "the Batts case." The article stated that the judge — then a candidate for re-election — "wrote an obiteropinion in the Batts case where he practically held that anautomobile cannot be searched without a search warrant. He alsomade the statement in this opinion that the vessels which hadbeen thrown out of the car in the Batts case smelled as if theremight have been whisky in them, when, as a matter of fact, theuncontradicted evidence shows that these vessels containedtwenty-three gallons of white mule." (Our italics.)

Under the heading "FEDERAL AND STATE SUPREME COURTS DIFFER," the reader is referred only to the cases of United States v.Borkowski (1920), 268 Fed. 408, and Dumas v. State (1925),197 Ind. 123, and the article assumes to state the similarity of facts in both cases and the rulings. Thus, of the Borkowski case, he says: "It is held that where officers smelled raisins cookingand saw a light in the cellar of a house and persons there movingaround and their experience told them that the odor of boilingraisins meant that a crime was being committed, they had a rightto enter and seize the utensils employed, and that as an officermay arrest when he actually sees the commission of a misdemeanor,he may do the same if the sense of smell informs him that the crime is beingcommitted". In the second case, "appealed from Vigo County, ourcourt takes the opposite view. In this case, the officersdistinctly smelled mash cooking in a small house. They entered,found a still and arrested the owner. The court reversed thecase, holding that the officers had no right to enter the housewithout a search warrant." (Our italics.)

Respondents moved to strike out certain parts of the foregoing information, and thereafter filed a joint and several response, and later Shumaker separately filed a second and additional paragraph of response, and from these answers under oath, it appears, in substance, that Miles and Martin had nothing to do with the preparation or publication of the pamphlet or with its being reprinted and circulated in the American Issue, except that respondent Martin is and was a trustee of the Anti-Saloon League, and, by the joint and several response and separate additional and supplemental responses by Shumaker, it appears that the board of trustees of the Indiana Anti-Saloon League approved the so-called report of Shumaker and ordered it published in pamphlet form for distribution, and to be reprinted in the Indiana edition of the American Issue February 6, 1926.

They each deny that they were parties to any plan or scheme to degrade, impede or influence this court. They separately state that they are citizens and residents of the city of Indianapolis, and that Shumaker, for more than nineteen years, has been superintendent of the Indiana Anti-Saloon League; that one of his duties is to make reports to the trustees of the league "of the progress and work of said league, the general status of the matters pertaining to the cause of temperance, prohibition and liquor-law enforcement, and concerning what has been accomplished, and conditions generally in that connection"; that Shumaker, in accordance with his duties, prepared and presented to the board of trustees the report exhibited in the amended information, which was approved and adopted by them and ordered published; that after editing it, under the supervision of the headquarters committee, he published the same in pamphlet form and caused it to be printed in the American Issue "pursuant to the direction of said board of trustees"; that the objectionable parts of the report or pamphlet were not ordered deleted by the trustees of the league; that the American Issue is the official organ of the league and it was published therein for the benefit of its subscribers, and for the benefit of the officers, trustees and subscribers to the league and mailed to them as a part of the consideration for their subscription. Five times in this paragraph, he asserts that the statements in the pamphlet and as republished "are not contemptuous." It is then denied that the respondents, at any time, by any of the means, plans, schemes and designs alleged or referred to in the amended information or otherwise, or in connection with the annual report or the publication thereof, or by means of either of them, or by means of any statement contained therein, deliberately, intentionally, purposely, maliciously or willfully made any false statement or report of any kind or character concerning the court or any of its decisions or proceedings pending, disposed of, or otherwise, or any of its members with any such intent, purpose or design. Shumaker denies any purpose to intimidate or to put the court in fear, or to control or influence its decisions; that any statements contained in his report were made with reference to any pending case, or that they concerned any case other than those specifically mentioned in the report; and denies any knowledge of pending cases mentioned in the information, or that any of such cases involved questions of the admissibility in evidence of articles seized pursuant to searches and seizures which were alleged to be unlawful. He denies that he made any statement or report at any time or under any circumstances with any intent or purpose of being disrespectful to the court or any of its proceedings or decisions, or that he had any purpose to do anything in contempt of the court, or that he had any intent or purpose of encouraging disrespect for the court or for any of its decisions.

Shumaker says that, "for more than twenty years last past, he has been a member of the clergy, during nearly all of which time, he has been superintendent of the Anti-Saloon League of Indiana, and editor of the Indiana edition of the American Issue; that, during all this time, he has developed a state-wide acquaintance with a large portion of the clergy of the state, as well as with the members of many of the churches of the state, that among these people he has procured a large number of subscribers to said American Issue; that, at all times, he occupies the pulpits of churches in the state who are interested in the purposes of the Anti-Saloon League and not otherwise, and for the purpose of arousing the people to political action in furtherance of the purposes of the Anti-Saloon League in the matter of electing men of dry sentiment to office in furtherance of the purpose of the Anti-Saloon League, and not otherwise. And they solicit contributions of money on such occasions to be used for the purposes of the Anti-Saloon League," which purposes, he previously states in his response, are the maintaining of offices, officers and employees "who devote their entire time and attention to its affairs," which involves a large expense and outlay in carrying on its work, and that the money collected by means of Field Days "is used and expended in payment of the legitimate expenses of said league in that connection and not otherwise"; that the language in the report or pamphlet concerned the "results of certain Field Days wherein subscriptions were solicited and the report contained the statement of what the Anti-Saloon League hoped to achieve if given support, and the only purpose of said quoted excerpt was to so report and to advise said persons interested in said Anti-Saloon League of the work it considered necessary in furtherance of its purpose in Indiana, to wit, the election of members to the legislature who will be more militantly dry than the last Indiana legislature, to retain the Indiana liquor laws as now constituted, and to elect individuals to the Supreme Court whose sentiments are dry, and that respondent, by said publication, or said Anti-Saloon League, by said action, has no intention other than the legitimate furtherance of its purposes, and all allegations to the contrary are false and untrue." He states that, as superintendent of the Anti-Saloon League, he is active in general elections, and "does expend money legitimately in general elections, but not particularly more in elections where judges of this honorable court are elected; that such expenditures are of a legitimate character at all times, and in furtherance of the purpose of the Anti-Saloon League." That he did not, "for the purpose of defeating one of the judges of this court who was a candidate for re-election and who theretofore failed to yield to intimidation by respondent, cause to be distributed, printed or published any statement in said American Issue dated October 18, 1924," but that such article was part of a report by the Anti-Saloon League of its opinion of candidates for office, both in the counties and state, as well as nationally.

He refers to the Callender, Flum and Dumas cases, saying that they were all disposed of and not pending at the time the report was made, and that his statement with reference to the Borkowski and Dumas cases was that of a layman and not published with intent to falsify or misrepresent the decisions; that he "did not deliberately, falsely or maliciously state, in substance or otherwise, that the liquor interests have gained control of this court as alleged in said amended information, and the statements alleged in said amended information were not issued or uttered with the intent to convey said impression." That he had not undertaken to determine for the people of the State of Indiana what the decisions of the Supreme Court ought to be in liquor cases, or that § 11 of Art. 1 of the Constitution of Indiana ought to be disregarded. He then gives his reasons for making the statement concerning the decisions of this court which are, in substance, that in his opinion the earlier decisions of the Supreme Court of the United States and those of thirty states are the better rule of law for the promotion of justice than the rule more recently adopted by the Supreme Court of the United States and by the Supreme Court of this and other states. He justifies his position by the following statement. "His reasoning was, that the one who was guilty of crime was an outlaw, and was therefore not entitled to the protection of constitutional guaranties, and that since the evidence of guilt was undisputed, the suppression of such evidence has the effect of allowing the guilty to escape punishment and that the effect of such ruling was to defeat justice, and that, in the interest of justice, the better rule would be to admit the evidence regardless of the manner in which it was obtained."

At this stage of the proceedings, both the state and the respondents moved for judgment — the state for judgment of attachment and punishment, and the respondents for their discharge. Thereupon, the court, over the objection and protest of the respondents, invited Honorables George Dix of Terre Haute, then president of the Indiana Bar Association, Dan W. Simms of Lafayette, Evan D. Stotsenburg of New Albany, ex-attorney-general of Indiana, C.C. Shirley, Moses B. Lairy and Fred C. Gause of Indianapolis, the latter two ex-judges of the Supreme Court of Indiana, to act as amici curiae in this proceeding, and to submit a brief on the questions involved. These gentlemen were entirely disinterested. They accepted our invitation and have submitted a very able and exhaustive brief for our consideration. However, we may say that the objections and protest on the part of the respondents did not in the least question the high standing or integrity of any of these gentlemen in any particular, nor did they challenge any one of them because they were not well and favorably known to the bench and bar, or were not among the recognized leading lawyers of this state.

After the amici-curiae brief was filed, respondents filed a supplemental response, wherein they refer to the Batts, Callender, Flum and Dumas cases and attempt to both justify and excuse responsibility for the statements in the Shumaker report to the trustees of the Anti-Saloon League.

Shumaker admits that the judgment in the Batts case was reversed because of error in overruling the motion to quash the affidavit, and then asserts that the court, for the purpose of avoiding a retrial on an amended affidavit, "held that the evidence in the case could never be used and respondent believed that such holding had the effect of making impossible the further trial of the defendants." In the Callender case, the judgment was reversed and a new trial ordered; that, in part, as to the Batts case, and entirely so as to the Callender case, he was misled at the time he made his report by the thought that the court's opinion was based upon an actual reference to the transcript of the evidence rather than that furnished by counsel in their briefs. He then refers to certain excerpts said to be taken from the transcript of the evidence in justification of his claims. He next refers to the Flum case, and, following it, the Dumas case, quoting selected paragraphs or sentences from each of the opinions and on which he essays inferences to suit his purpose. Both of these cases were reversed and new trials ordered. He says of the Callender and Flum cases, he "had no purpose to make a false report of the decisions of said respective cases, and does not now understand that, as a general proposition, his statement or report of said decisions were materially misrepresentations of what actually occurred. Technically, from a legal standpoint perhaps, said statements may not be entirely accurate"; that he understands that none of these cases was retried; that "he compared the two decisions (Borkowski and Dumas) by adopting a statement of facts in each case which he, respondent Shumaker, believed to be true," and drew the conclusion that they were in conflict as stated in his report.

On the part of Shumaker, the remainder of this response is practically a reiteration of statements covered by his former answers, other than that he now asserts, in substance, that this proceeding is an attempt to abridge his inalienable and constitutional rights to speak, write, print and publish what may seem to him to be proper, and that this court is without right or jurisdiction to punish for contempt. Both E.A. Miles and Jesse E. Martin again deny having anything whatever to do with the preparation of the Shumaker report or of its publication.

In reading the supplemental response filed more than four months after the filing of the information, it will be noticed that respondent Shumaker does not say or claim that he made the so-called report of the cases mentioned therein from an examination of the record, briefs of counsel, or opinion of the court; nor does the source of his information in that respect appear from either of his other responses. He includes excerpts claimed to be taken from the record in two of the cases, and then proceeds to draw inferences from them as a premise for an excuse and for saying that he had no intention to malign or scandalize the court by the statements in his report to the board. These evidently after-thought matters, by which he now seeks to shield himself from or to mitigate merited punishment, fail entirely when the asserted facts in his various responses are considered in connection with the falsity of his report and the real outstanding facts of the cases he misinterprets.

In fairness, and in the hope that the reader of this opinion may draw therefrom a correct impression of the demeanor and course of action of these respondents, we have taken the time and space for an extended statement of the various responses prepared under the critical supervision of counsel. We regret that it has become necessary — an absolute duty — that we determine the status of respondents relative to their conduct toward this court in a report of its rulings and decisions formally brought to our attention. It is not our purpose to notice references in the report or in the responses concerning the judges individually other than where such references exhibit the state of mind of the maker of the so-called report, or as indicating the result to be thereby obtained.

Certain statements in the report are alleged to be contemptuous and, if so, it becomes our duty, as for a public wrong, to assess proper and adequate punishment to the end that the court 1. may maintain its standing, dignity and unrestrained enforcement of its lawful powers in an orderly manner. All of the statements in the report pertaining to this court must be considered and analyzed as one document and not disconnected, as respondents would have us do. They together reflect an odium which taken singly, in some instances, might not be seriously considered. However, any act, conduct, or directing agency pertaining to pending proceedings "intended to play on human frailty, and to deflect and deter the court from the performance of its duty, and drive it into a compromise with its own unfettered judgment, by placing it, through the medium of knowingly false assertion, in a wrong position before a public which has little opportunity to 2. investigate the facts and ascertain the truth," regardless of results, "clearly constitutes ``an obstruction to the administration of justice,'" and is contemptuous and within the inherent power of the court to punish. United States v. Craig (1920), 266 Fed. 230; Michaelson v. United States (1924),266 U.S. 42, 65, 45 Sup. Ct. 18, 69 L. Ed. 162, 35 A.L.R. 451;Little v. State (1883), 90 Ind. 338, 46 Am. Rep. 224; Ray v. State (1917), 186 Ind. 396, 114 N.E. 866; Dale v. State (1926), 198 Ind. 110, 150 N.E. 781.

While the case of Coons v. State (1922), 191 Ind. 580, 134 N.E. 194, 20 A.L.R. 900, was in the court below, circuit judge William A. Thompson well said: "The foundations of the state, the orderly stability of society and the welfare of the citizen depend upon the enforcement of law, and especially the criminal law. There can be no enforcement of law except through the agency of the courts. And whatever tends to lower respect for courts and for their decisions and integrity and honor, and whatever brings the law into contempt is a public calamity which, if continued, will eventually lead to anarchy and bolshevism."

The report refers to and attacks "our Supreme Court," "our own State Supreme Court," "State Supreme Court," "a Supreme Court," and "our courts." The real question here for decision, and the one to which we limit our attention, concerns the Supreme Court of Indiana.

The judiciary is one of the three departments of government, and, except in a few instances, is vested with all the judicial power of the state as a constituent 3. branch of the government itself. State, ex rel., v. Noble (1889), 118 Ind. 350, 21 N.E. 244, 4 L.R.A. 101, 10 Am. St. 143.

The legislative department has indicated its approval of the power of courts to punish by fine and imprisonment for contempt of its authority (§ 1336 Burns 1926), and also by providing that "every person who shall falsely make, utter or publish any false or grossly inaccurate report of any case, trial or proceeding, or part of any case, trial or proceeding" while the court has jurisdiction thereof, and before it is determined and ended, shall be deemed guilty of an indirect contempt of court punishable by a fine or imprisonment, or both, in the discretion of the court inflicting the same, not exceeding $500, or more than three months' imprisonment. Acts 1879 (Spec. Sess.) p. 112; §§ 1080, 1081 Burns 1926.

When it is known that the power of inferior courts to punish for contempt has been questioned by respectable authority, the reason for the foregoing legislation is apparent — not that 4. it confers any additional power on courts of superior or general jurisdiction, but that such power may be unquestionably extended to courts of inferior jurisdiction to punish for contempt certain enumerated acts. 13 C.J. 48, § 63; 6 R.C.L. 517, § 29.

In Little v. State, supra, it is said: "The judiciary is a co-ordinate department of the government, and is not a mere subordinate branch, dependent for existence and power upon the legislative will. Purely judicial powers, inherent in courts as of the essence of their existence, are not the creatures of legislation, and these powers are inalienable and indestructible. Among the inherent powers of a court of superior jurisdiction is that of maintaining its dignity, securing obedience to its process and rules . . . rebuking interference with the conduct of business, and punishing unseemly behavior. . . . There is no doubt that the power to punish for contempt is an inherent one, for, independent of legislation, it exists, and has always existed, in the courts of England and America." See, also,Cheadle v. State (1887), 110 Ind. 301, 11 N.E. 426, 59 Am. Rep. 199; In re Hayes (1916), 72 Fla. 558, 73 So. 362, L.R.A. 1917D 192, Ann. Cas. 1918B 936; United States v. Hudson (1812), 7 Cranch (U.S.) 32, 3 L. Ed. 259; State v. Shepherd (1903), 177 Mo. 205, 224, 76 S.W. 79, 99 Am. St. 624; State v.Zimmerman (1925), 317 Ill. 197, 201, 148 N.E. 5; 13 C.J. 46, § 62; 6 R.C.L. 515, § 28.

At the time the report in question was made and submitted to the board of trustees of the league, and by that body, according to the uncontradicted evidence of Shumaker, ordered published in pamphlet form and in the American Issue, the official organ of the organization of which he is superintendent, it was a well-known fact that never during the entire history of the state was there as much litigation growing out of the violation of the liquor laws as that which followed what is known as the Prohibition Law of 1917, and especially the laws thereafter passed by our legislature under the pretext of strengthening the Volstead Act. As a result of this litigation, a stream of appeals found its way into this court, especially noticeable in 1922, and continuously increasing in volume each year until 1925, when this court was submerged by criminal appeals, largely due to amendments and changes in the original prohibition law in 1921, 1923 and 1925.

Without stopping to count the number of liquor-law violation cases pending in this court at the time of making the report in question, it would be safe to say there were more than 100 cases, which submitted innumerable questions, and at least twenty-five per cent. of these presented the question of search and seizure, some of which, under the administration of a former attorney-general, were briefed on the part of the state by respondent Miles, one of the attorneys for the Anti-Saloon League and a legal adviser of Shumaker. Moreover, out of the 100 or more cases involving liquor-law violations decided by this court within the twelve or fifteen months immediately preceding the making of the report to the board of trustees and its action thereon, probably one-third of the cases thus decided embraced the question of search and seizure in some form. Out of the cases so decided, the author of the report selected four — Batts, Callender, Flum and Dumas — and, by apparent studied efforts to delude readers of the report into a false impression of the court's attitude in such cases, garbled, falsified, and misrepresented the facts thereof and the law therein declared. Final disposition of three of these cases — Batts, Callender and Flum — had been made, but the Dumas (Adonia) case and others were still pending, subject to a petition for a rehearing or modification by the court of its own motion.

Respondents Miles and Martin do not disclaim knowledge of our docket exhibiting liquor appeals, and, for respondent Shumaker to say, even under oath, that he did not know of such pending cases, when, as he says, he is giving all of his time to the prohibition cause, is but to trifle with the court.

To say that a statement or thing is true, or that certain conditions exist which are false and susceptible of such knowledge, or to falsify language by misstating it or by 5. material omissions misrepresent, as in this case, court rulings, thus clearly informing those who are relying and known to be relying upon the truthfulness of such statements, cannot be excused by merely denying any intention of deception. The language of the publication is not technical. It was adroitly drawn to avoid the facts and give it semblance of truth. Colloquiums or innuendos are unnecessary in order to determine to whom the language in question applies, or to give it a defamatory meaning.

We do not, nor does any one, contend that judges are beyond fair and respectful criticism for either personal or official conduct. Honest and decent criticism may be helpful in the 6. due administration of the law, but a knowingly dishonest, false or libelous publication, impugning the motive, honesty and integrity of the court or of its personnel because of acts done or being done in the administration of justice, is not a criticism in the sense of aiding the court to correct error. Such acts are inconsistent with the public interests and tend to destroy the usefulness of courts created to aid in the preservation of law and order. For us to pass unnoticed conduct unquestionably intended and calculated to arouse public prejudice against the judges in the performance of their judicial functions, thus destroying the faith of the people in the judiciary and respect for the law, would be so cowardly that it would be contemptible and a disgrace.

As said in the case of In re Fite (1912), 11 Ga. App. 665, 680, 76 S.E. 397, 404: "The power of the judiciary rests upon the faith of the people in its integrity and intelligence. Take away this faith, and the moral influence of the courts is gone and respect for the law is destroyed. Other departments of the government may outlive unjust criticism, and may still render service to the people, even when unfairly assailed, but when confidence in the courts is gone, respect for the law itself will speedily disappear, and society will become the prey of fraud, violence, and crime. The one element in government and society which the people desire above all things else to keep from the taint of suspicion is the administration of justice in the courts." And again on page 679 (76 S.E. 404): "If courts fail to enforce respect, if they do not strive to preserve their independence and to maintain inviolate their judicial integrity, they will not only lose their own self-respect, but will be recreant to the duty they owe to the state. If the court is scandalized, the integrity of its judges impeached by gross, defamatory libels of their character and their decisions, the consequences are far more hurtful than in cases of direct contempts, committed in their presence."

This court was created by the people upon the adoption of the Constitution of the state as one of the departments of government. It has the power, not only to define criminal 7. contempts, but also to punish for such attacks. One of the outstanding elements of the report is the purpose to excite people into the false belief that the majority of the present personnel of the court is "wet." The word "wet" so used has a well-understood meaning: "One in favor of allowing the sale of intoxicating liquors." Webster. To convey this thought to the membership of the league and its subsidiary organizations was not alone for the purpose, we think, of scandalizing and bringing the court into distrust and to create a false impression of its judges, and thus to effectively embarrass the administration of justice in a class of pending cases but to thereby incite the people into the belief that one of the imminent causes for the "titanic struggle" they would be called upon to meet would be the election of a Supreme Court that would be dry and not wet. Thus the selfish motive of the author of the report appears by his appeal to the people to contribute to a fund for use in nominating and electing officers who will have the initials of approval of his organization.

The report in question, admitted to have been circulated among members of the league and broadcasted through the "American Issue," practically states that the liquor interests control our courts. From the number of times this court is mentioned in the report, it will not do to say that it was excluded from the charge. The law-abiding people are called upon to nominate and elect judges who "will give judicial decisions carrying out in full and effective manner both the letter and spirit of our Constitution and laws enacted thereunder."

According to the Shumaker idea of the Constitution, as set forth in his response, all persons guilty of crime are outlaws and not therefore entitled to the protection of constitutional guaranties. That is the rule announced for this court to follow, regardless of the oaths of its personnel to support the federal and state Constitutions. For a failure of this court to so comport itself, the members thereof are referred to the fate of one of the present judges who was up for re-election in 1924. Thus, we have an autocratic threat of power to be asserted unless this court yields its judgment in the administration of justice in the particular class of cases mentioned so as to coincide with the prejudiced theories and notions of one whose livelihood is sustained apparently by donations from the people, obtained either by fair or false means.

Respondent Shumaker admits that he is a member of the clergy and thereby gains admission to the pulpits of various churches of the state which he uses to arouse the people of the state into contributing money for the furtherance of the cause he represents, and for use in primary and general elections for the purpose of electing persons to office, members of the Supreme Court, who are "dry." The word "dry" so used means a prohibitionist. Webster. Moreover, it clearly appears from the report, supplemented by admissions in his response, that he is capitalizing the fact of his clergy membership to impress the people with the truthfulness and fairness of his statements that this court, by splitting judicial hairs in liquor cases, holds that the guilty "must be turned free," and "substantial justice has been defeated repeatedly." These statements are false.

The judgment in the Batts case was reversed for error in overruling the motion to quash, but the opinion refers to the evidence, and the statements of law therein are based upon the evidence as recited in the opinion. That part of the opinion was merely advisory of this court's views in case of a retrial upon a new affidavit, and suggested in what respect the evidence as detailed was insufficient. The falsity of the report was in stating that the opinion "practically held that an automobile cannot be searched without a search warrant," and that the uncontradicted evidence shows that the vessels, kegs, and jugs found on the side of the road were thrown out of the Batts car and contained twenty-three gallons of "white mule." The testimony of Batts and his wife was that they did not throw anything out of the car, that they did not have any vessels containing "white mule" whisky in the car.

In the Callender case, the judgment was reversed and a new trial ordered. At the time of the trial, neither the affidavit for the search warrant nor the warrant itself could be found. Appellant contended, and in his brief recited evidence to sustain his contention, that the authority for making the search was signed by the chief of police, and that no search warrant was issued by a magistrate or court. The conviction in that case, as appears from the evidence brought to the attention of this court, was obtained by evidence procured by an unlawful search. No magistrate or judge gave any evidence on the subject, and the police were not certain as to who signed the instrument upon which they acted.

A new trial was granted in the Flum case. In that case, a search warrant was issued upon an affidavit describing the premises as "Section D, Beech Grove," approximately 2,500 feet long and 1,800 feet wide, comprising 125 lots, upon which were twenty-five separate buildings, all but two of which were dwelling houses. Flum owned five of these lots and a two-room dwelling house. The description of the premises to be searched in the affidavit was indefinite and uncertain and wide of the constitutional requirements.

The Borkowski and Dumas cases are easily distinguishable. In the Borkowski case, while the officers were engaged in a lawful search, they smelled raisins in the process of cooking somewhere. They saw a light in the cellar of a house two or three doors away and persons moving around. They went to the house, entered the cellar, and found a still in operation. In the Dumas case, the officers had completed the search of premises for which they had a warrant. The Dumas home was a mile and a quarter away. The officers knew of no wrong being committed by Dumas at the time they left the premises searched to exploit the surrounding country. They crossed peoples' farms and entered the farm occupied by Dumas without the semblance or pretext of any authority. While on the Dumas farm, the prohibition officer alone smelled the odor of cooking mash, an entirely different state of facts from that exhibited in the Borkowski case.

Our attention has been called to excerpts from public addresses in Senator Beveridge's book on "The State of the Nation," chapter on "Common Sense and the Constitution." One of these by Justice Brewer, speaking to the subject of "Abraham Lincoln," said:

"It is a mistake to suppose that the Supreme Court is either honored or helped by being spoken of as beyond criticism. On the contrary, the life and character of its justices should be the objects of constant watchfulness by all, and its judgments subject to the freest criticism. The time is past in the history of the world when any living man or body of men can be set on a pedestal and decorated with a halo. True, many criticisms may be, like their authors, devoid of good taste, but better all sorts of criticisms than no criticism at all."

Also, as bearing upon what may be considered as proper criticism of the courts, we have the statement of Felix Frankfurter, a member of the law faculty of Harvard University:

"A steady stream of enlightened and disinterested professional (our italics) criticism must play upon the work of the Supreme Court if its transcendent function in exercising a virtual veto power over national and state action is to be saved from destructive obscurantism."

The last, by Roscoe Pound, Dean of the Harvard Law School, before the American Bar Association in 1926, in speaking of economic transition bringing about complaint with reference to the functioning of our institutions, social, political, economic and judicial, said:

"All of them are subject to a strain in the transition from an agricultural, rural, pioneer society to the urban, industrial society of today. But the courts are peculiarly subject to that strain for several reasons. One is, while in the period of political transition, we subjected our judges generally to popular election, often for short terms, we still retain the common-law tradition that puts the judge upon a different plane from other public officers."

He then refers to how the administrative officer may defend his conduct, which is not open to the judge.

"Every sort of argument and every sort of misrepresentation can fill the air and he must sit on the bench in quiet dignity and administer justice according to law. I think it is a good thing that that is still our tradition. But it does unquestionably subject our administration of justice to some strain."

He then refers to the muck rakers' misrepresentations of judicial decisions of twenty-five years ago, which went unchallenged in the periodicals.

"Occasionally those misrepresentations crop up today in most unexpected quarters, and make us realize that there is nothing so absurd or out of line with the ordinary experience that the lay public will not believe it when asserted of law and courts. (Our italics.) That curious phenomenon, I suppose, is largely due to a situation that, as it were, puts one of the two judicial feet in politics and does not provide the judicial incumbent with the ordinary political means of meeting the exigencies of political life."

He next refers to the enormous development of the manufacturing, marketing and commercial institutions and the difficulty which the courts have encountered in trying to deal with our nineteenth century legal conceptions.

These men, able and well learned in the law, by these addresses certainly did not intend to be understood as saying that courts have no protection against pernicious and libelous attacks which tend to endanger the rights of parties in pending cases, or that will prevent a calm and dispassionate discussion and investigation of such causes, so necessary to their just and proper determination, or, in short, tend to impede or defeat the due administration of justice. Such an understanding would be contrary to the pronouncement of every court having to do with such conduct, both in England and America.

While Justice Brewer was an associate justice of the Supreme Court of the United States, that court, in the case ofPatterson v. Colorado (1907), 205 U.S. 454, 27 Sup. Ct. 556, 51 L. Ed. 879, 10 Ann. Cas. 689, Mr. Justice Holmes delivering the opinion, dismissed the writ of error because no federal question was involved. The First and Fourteenth Amendments to the federal Constitution were considered, and, with reference thereto, it was said:

"But even if we were to assume that freedom of speech and freedom of the press were protected from abridgement on the part not only of the United States but also of the states, still we should be far from the conclusion that the plaintiff in error would have us reach. In the first place, the main purpose of such constitutional provisions is ``to prevent all such previous restraints upon publications as had been practiced by other governments,' and they do not prevent the subsequent punishment of such as may be deemed contrary to the public welfare. Commonwealth v. Blanding (1826), 3 Pick. 304, 313, 314; Respublica v. Oswald (1788), 1 Dallas (Pa.) 319, 325. The preliminary freedom extends as well to the false as to the true; the subsequent punishment may extend as well to the true as to the false. This was the law of criminal libel apart from statute in most cases, if not all. Commonwealth v. Blanding, ubisup.; 4 Bl. Com. 150. In the next place, the rule applied to criminal libels applies yet more clearly to contempts. A publication likely to reach the eyes of a jury, declaring a witness in a pending cause a perjurer, would be none the less a contempt that it was true. It would tend to obstruct the administration of justice, because even a correct conclusion is not to be reached or helped in that way, if our system of trials is to be maintained. . . . What is true with reference to a jury is true also with reference to a court. Cases like the present are more likely to arise, no doubt, when there is a jury and the publication may affect their judgment. Judges generally, perhaps, are less apprehensive that publications impugning their own reasoning or motives will interfere with their administration of the law. But if a court regards, as it may, a publication concerning a matter of law pending before it, as tending toward such an interference, it may punish it as in the instance put."

The report in question states "that our courts are theservants not the masters of the general public." This statement has an important bearing in many ways and sheds 8. additional light on points already considered. It shows that the author of the report has an erroneous conception of the functions, duties and obligations of courts, and furnishes an explanation of his general attitude toward courts. It is true that courts are not the masters of the general public or of any part of the general public, not even of a single individual; but it is equally true that courts are not organized to decide questions of law according to the wish of the power to appoint, or to elect, or otherwise. State courts in this country acting within their jurisdiction are subservient to the Constitution of the United States, the Constitution of the state in which they are organized and to the established law of the land only, and to no other earthly power. It would be monstrous if any political party or any body or association of people, having the power to elect or defeat judges, could control or dictate decisions of courts. This condition would exist if courts were the servants of those holding the power to elect.

In determining a question presented for decision, a judge is not free to act in accordance with his personal wishes, desires or predilections, for the reason that judicial action 9, 10. must be controlled by a consideration of law, only as applied to the facts of the particular case. The judge must determine what the law applicable to the case is and he must apply the law to the facts and the result of this process will determine the decision. A decision thus reached is what the law requires, and is not necessarily what may meet with the approval of any person or class of persons who may be directly or indirectly interested in the result. So long as we have courts composed of men who have integrity and courage sufficient to enable them to follow the law as the sole guide to judicial action, we shall have a government of law and not a government of men. It may be that a decision so reached may not meet with general public approval, but courts should be indifferent to any consideration of that nature. The trend and weight of public opinion and sentiment on questions of importance is subject to change, but sound legal principles founded on reason and justice should never change. It is, therefore, apparent that courts cannot be the servants of the people in the sense that they must conform their decisions to meet the desires of any class or even of a majority of the people.

Shumaker and those he represents were not interested in the result of any specific case, but they were interested in the result of a class of cases in which were involved 11. violations of the law on the subject of intoxicating liquor. Some of these cases had been disposed of, others were pending, and still others would be filed in the regular course of events. The publication contained untrue criticisms of the decisions of the court and veiled threats to defeat for re-election certain members of the court designated as "wet," and in substance called upon the organization to substitute in their places judges who were dry and who would regard themselves as "servants" of those who placed them in office and who, in return, would gladly do their bidding as the price of being retained in office. Of course, the criticisms and threats made could not have the effect to control the decision of cases which had been finally disposed of and of which the court had lost jurisdiction. Such was not their purpose; but they were well calculated to affect the mind of a timid judge who might be concerned as to his re-election and to influence his decision improperly in like cases which were pending or which might be later filed.

Shumaker had two lawyers — Miles and Martin — at his command to advise him on questions of law and the rulings of this court as exhibited by its opinions. However, he assumes entire responsibility for the statements in his report, but says that he is not alone accountable for its being printed in pamphlet form or its publication in the American Issue. He admits editing the report under the supervision of the headquarters committee, but claims that its publication in pamphlet form and as reprinted in the American Issue was pursuant to the order of the board of trustees. It will be noticed that respondent Martin does not deny that he, as one of the trustees of the league, participated in ordering the publication of the report, as stated by Shumaker in his response. This admitted activity on the part of Martin in disseminating the false and scurrilous statements concerning this court cannot be excused on the theory that he did not, as an individual, collaborate with Shumaker in the preparation of the report, and had nothing to do with its publication. This court, therefore, upon the case thus submitted for its determination, finds respondent Ethan A. Miles not guilty, and further finds respondents Edward S. Shumaker and Jesse E. Martin each guilty of contempt of court.

It is now, therefore, ordered that the Clerk of the Supreme Court of Indiana issue a writ of attachment to the sheriff of said court commanding him to bring forthwith before the court Edward S. Shumaker and Jesse E. Martin for sentence and judgment upon the aforesaid finding of guilty.

Travis, C.J., and Willoughby, J., concur.

Gemmill and Martin, JJ., dissent.