United States v. Toledo Newspaper Co. , 220 F. 458 ( 1915 )

KILLITS, District Judge.

The respondents, the Toledo Newspaper Company and Negley D. Cochran, respectively the publisher and editor in chief of a daily newspaper published in the city of Toledo, Ohio, known as the “Toledo News-Bee,” are before the court to answer to charges of contempt for publications in that paper between the dates of March 24 and_September 17, 1914, inclusive.

The information is in three counts, and is filed by the district attorney by order of the court. The first count deals with publications between March 24 and September 12, 1914, affecting a cause pending in this court entitled Henry L. Doherty et al., Partners as Henry L. Doherty & Company, v. Toledo Railways & Light.Co.

The second count offers publications of September 12 and 14, 1914, touching the proceedings in contempt in this court against one John Quinlivan; the rule to show cause against said Quinlivan in the contempt proceedings being entitled in the civil case whose title is given above.

The third count deals with a publication on September 17, 1914, relating to a proceeding in contempt in this court against Harry J. Howard, managing editor of the Toledo News-Bee.

The publications complained of, with the contexts of which they are a part, are set out in full in the information. They are so numerous and many of them so long that to reproduce them in a statement of fact, even by reasonable editing in condensation, would be to very greatly tax the situation. Besides, as not unusual in the style of journalism which the newspaper in question affects, they were so embellished with exaggerated headlines and other typographical display, operating as emphasis upon certain features, that their full effect cannot be exhibited in a practical attempt at reproduction in an opinion. For the present purpose, it is sufficient to set forth a superficial view of their scope, although that will of necessity be extended.

The information charges that the publications involved in the first count were calculated and intended to produce two effects: First, an influence on the court’s consideration of the pending traction case, by attempting an impression that a decision contrary to the wishes of the paper would not only be very unpopular in the community but' likely to be met with active opposition; and; secondly, an encouragement to popular resistance to any order the court might make following such unpopular decision.

These purposes are alleged to have been effected by violent attacks on the parties to the case who were interested against the city, attacks calculated to influence public sentiment; by comment on the personality of the judge of the court and on proceedings in the case under him, tending to the impression that the court was liable to influence against the city out of proportion to the law and facts; by encouraging, through intensive comment and extravagant headings and other typographical embellishments, a plan for popular uprising against the traction company in spite of any order the court might make in the case; by misrepresenting, especially through prominent headlines, the action of the court through successive steps in the case; and by “featuring” attacks on the court from local organizations while the case was pending.

The proceedings concerning which publications are pleaded as offensive in the second and third counts were outgrowths of the traction case. It is alleged that these publications tended and were intended to embarrass the court in its consideration of the respective causes, by impugning the motives of the judge thereof and by attempting to belittle him in public estimation.

It is admitted that the paper in question containing these publications circulated to the extent of more than 50,000 copies daily in and about the city of Toledo, wherein sat the court in question and resided the judge thereof subject to comment in said publications. The order directing the district attorney to file the information and signed by the judge of the court recites the fact of his residence in the city of Toledo, and that, as a daily reader of the newspaper in question, the several publications had come to his personal attention.

Before entering into a more detailed description of the publications, it is proper to picture briefly the local situation and recent history of the city, as well as to outline the traction case referred to by title above, although the full force of the effect upon the paper’s readers of the publication charged as offensive can be properly appreciated and gauged only by those who have seen the manner in which they were set forth and embellished from time to time with typographical exaggerations, and who, through residence in the city, are familiar with local conditions.

The testimony shows that Toledo has had a street railway franchise problem confronting it for more than ten years, and that agitation concerning it of the familiar extreme type had accompanied the attempt of every administration to deal with it, and that it had figured as the issue in five or six municipal electoral contests.

Franchises for some of the most important lines expired in 1910, and others, disintegrating the system, with March 27, 1914, although it was contended in the case, by both plaintiffs and the traction company, that they continued until October, 1915.

For years the News-Bee had violently opposed the local company which it had nicknamed the “Big Con.” The paper’s policy was threefold — opposition to a franchise renewal, insistence on a straight three-cent fare, and for municipal ownership.

In the spring of 1913 a New York partnership, H. L. Doherty & Co., took over the management of the system and began negotiations in behalf of the company for a renewed franchise, meeting persistent and vigorous opposition from the News-Bee.

In the municipal election of 1913, all of the candidates promised three-cent fare, but those opposed by the News-Bee defeated those favored by it by a very large majority. The election amounted to a defeat for the incumbent administration, which, after the election, and within 40 days of its vacation of power to the incoming officiary, and four months before the franchises expired, passed an ordinance called the “Schreiber Ordinance,” to require the company to operate its cars, after March 27, 1914, at the pleasure of the city, at the maximum fare of three cents with free transfers, and also to pay a rental of $250 per day for the use of the streets. Other terms were: An attempt to make mere continuance.of operation after March 27th work a waiver of objections and an acceptance of the measure; and a direction to the city solicitor, in case of nonobservance by the company, to apply to an appropriate court for an alternativei order of compliance or abandonment of the streets. No other provision was made for enforcement, nor did the ordinance specifically direct the company to cease its service even as an alternative to obeying the measure. The solicitor.never applied for an order, as provided. The company very promptly signified that it would not follow the ordinance.

Monday evening, March 23, 1914, the city council defeated a motion to postpone the enforcement of the ordinance after the 27th for a reasonable time within which to determine the franchise question. The issue of the News-Bee of March 24 is the first pleaded in the information; the article in question occupying more than five columns under a heading extending across eight columns, the width of the paper, entitled: “Big Con Fights Three-Cent Fare in Federal Court.” The article is preceded by a two-column wide condensation set up “boxed” — that is, with a rule line on all sides — entitled:

“Here’s the street car tangle in tabloid; Thurstin (the city solicitor) promises to protect riders.”

Preceding this a subhead in large type said:

“Thurstin Declares He Intends to Fight Until There’s Nothing Left. Will Defend Any One Who Will Not Pay.”

This statement is repeated in this form in one of the “tabloid” paragraphs in the “boxing”:

“Solicitor Thurstin promises to protect those who are ejected from cars for refusing to pay more than three cents.”

In the extended article, as a foundation for these headlines, is a two-line statement attributed to the solicitor that any car rider put off for refusing to pay more than three cents after Friday night will be “protected.” In the same connection, the mayor is made to say that he 'will do all possible to assist the solicitor, “ ‘even/ he said with a smile, 'if I have to call out the reserves.'’ ”

The article deals mostly with the proceedings before the council the night before. According to it:

“An audience of 400 interested men, women and children pack council chamber and hiss those eouncilmen who urge postponement of three-cent ordinance.”

One of the older eouncilmen is reported to have urged moderation because of the intensity of public feeling, fearing “bloodshed very likely and everything else that goes with it” on Saturday, if the company refused to obey the ordinance until a court passed on it, and his views are said to have provoked great disorder among the citizens present. The argument of another councilman for moderation was “met with jeers,” and all through the debate “statements construed to lean toward the company were hooted.” It was said that public interest in this meeting was so general that:

“The place was crowded to overflowing. No more could get in. Many had to stay out. * * * Men who had been in the franchise fight for a dozen years were there to see how these new councilmen would act in a crisis * * * Men from almost every walk of life were there.”

The account of the meeting proceeds to remind the readers of “one memorable night ten years ago,” and the intervening years of wrangling over the street car question now about to culminate in a victory for the people through the new ordinance to go into effect within the week.

In January, 1914, Doherty & Co. began an action in this court against the street railway company in the nature of a creditors’ bill, asking that the equity of redemption in the company be conserved to the payment of a large judgment, and for the appointment of a receiver. Other allegations of the complaint incorporated the so-called “Schreiber Ordinance,” alleging that to attempt to meet its terms would be to destroy the equity of redemption in the company because they were confiscatory. It is averred that the officers of the city of Toledo are advising that this ordinance will be in force after March 27, and are suggesting to the public that thereafter citizens should refuse to pay any fare in excess of three cents and should demand the right to ride at such a rate, and that, on the refusal of the agents of the company to accept such fare, the rate should be insisted upon to the extent of violence.

It is alleged that the company holds other franchises besides those assumed to expire with March 27, whose provisions will be seriously impaired by the city’s attempt to enforce the ordinance in question.

A feature of the prayer was that, if the situation did not change before March 27, the city of Toledo might be made a party to the case and the ordinance tested.

During the first three months of 1914, negotiations for a new franchise were in progress between Doherty & Co as managers of the traction company and the city, and no proceedings were had in the case beyond the filing of papers until the forenoon of March 24, when, the action of the council the night before in refusing to extend the time from March 27 for the operation of the ordinance' making action necessary from the standpoint of the company, supplemental pleadings were filed, setting up the developments to that time, and the motion to make the city a party, that an inquiry into the validity of the ordinance might be had, was pressed.

The judge of the court (Judge Killits) was then on duty in Cleveland, within the district. The proposed order to bring the city in and the application therefor were read to him over the telephone by the clerk and received the court’s approval, with the direction that the order be sent to Cleveland for signature. It was so sent immediately, was signed on the 24th, and received back in Toledo on the morning mail of' the 25th, and was entered as an order at chambers as of the 24th. Arrangement wás made between the parties to meet the court at Cleveland at chambers at noon on Thursday, the 26th, to present the motion for a temporary injunction.

The article of the News-Bee of the 24th, which told of the proceedings in council on the previous evening, started with an account of the filing of the papers that morning in this court, its initial sentence, after the customary “tabloid” statement, being:

“With Henry L. Doherty directing operations, the Big Oon got busy early on Tuesday in its efforts to evade the provisions of the Schreiber three-cent fare ordinance.”

Early in the article it speaks of the interview over the telephone with the judge, and the account of the council meeting the night before follows at length after the statement ascribed to the city solicitor with reference to the cáse. For a cartoon the traction company was represented to be “In the East Ditch,” and managing editor Howard, testifying for respondents, said that the “last ditch” was intended to mean this court.

Owing to the illness of the judge on the 26th, the hearing was passed until Saturday morning, March 28, at Toledo, when it was then had, and, for reasons pertaining to the record as it then was, on the 30th the motions were overruled, but the main case was not otherwise affected.

In the meantime, however, the traction company had filed a cross-bill and had joined with the plaintiff in a demand for a restraining order affecting the ordinance. This cross-bill repeats the charges that the city officials were publicly advising the people that individual citizens should take the enforcement of the ordinance into their own hands, and that any efforts by them individually in that behalf would be protected- by the peace officers of the city.

The issue is also -raised whether in fact the principal franchises to be affected by the Schreiber ordinance expired with the 27th of March; it being pleaded that they did not in fact expire until October, 1915.

March 25, being the day before that set for the hearing, the paper’s front page contained a cartoon entitled “A Desperate Case,” representing the “Big Con” as á very corpulent person in bed very ill, his attorneys and Mr. Doherty around him in great anxiety and very much caricatured; one of them explaining that, “We’d Better Call in Doc. Killits.” The.néws article was headed, in big type extending across five columns, “Car Riders May Ignore Order Barring Low Fare,” and. continuing over two columns in which measure in the body was set. a subhead, “Plan Made to Test Schreiber Ordinance Immediately After Muny Ownership Meeting.” Another subheading in the form of a “tabloid” paragraph was:

“Mass meeting of Municipal Ownership League at Memorial Hall, to be held Friday Night. Plan laid that Memorial Hall crowd shall remain in session until midnight, then swarm on ears and refuse to páy inore than three cents.”

The article, set in type across two columns, in detailing this plan begins :

“It has been planned, restraimng order or no restraining order by the federal court, to test the strength of the thrce-cent-fare-all-day ordinance immediately following the closing of the meeting of the Municipal Ownership League in Memorial Hall on Friday night, unless, before that time, other counsel prevails. The Schreiber ordinance will become effective at midnight on Friday, or 12:01 a. m. on Saturday. That’s the night the Municipal Ownership League is to hold its first meeting. It is planned to hold the crowd until midnight. Then the crowd is expected to offer three-cent fares on all the lines radiating from Memorial Hall, and refuse to pay more.”

Full details of the proposition follow, with the information that the project is in charge of one of the city’s councilmen at large, who, when asked, “What if in the meantime the federal court issues a restraining order preventing the city from enforcing the ordinance?” said:

“There comes a time in the history of men and nations when things go too far, I, for one, am willing to obey any reasonable injunction, but I will obey no injunction that takes away from the people of this city their rights.”

Following, was this:

“It is intimated that at the meeting of the Central Labor Union of Thursday night resolution will be approved calling on all labor union men to attend the mass meeting on Friday night. These men may furnish the sinew to see to it that three-eent fares are accepted by the conductors after the new ordinance becomes effective.”

The editorial page of this issue contained, in type larger than that of ordinary reading matter, a two-column wide denunciation of the “Doherty outfit,” who need “very badly in their business * * * a franchise that will make the millions of water in their bonds and stock as good as money in the bank.” ■ It is entitled, “Municipal Ownership the Only Way to Street Railway Peace,” and the plaintiffs in the Doherty Case are described as “arrogant franchise manipulators” who now begin “to smile sweetly at the people.” They are said to complain that the company cannot operate for three cents because it “has to have a fare that will enable them to pay $800,000 a year interest on watered bonds and then pay dividends on stock that is all water— every penny of it”; and that they seek a franchise which “carries with it the right to levy a street railway tax on the people of Toledo— not all of the people of Toledo, but merely those who don’t own automobiles and have to use the street cars.” Having thus treated of the plaintiffs in the action, the writer thus introduces the court before which they are suitors:

“And now the railway crowd has taken the franchise into the United States court. That means, practically, that the rights of the people of Toledo will be placed in the hands of a two-legged human being who happens to be a federal judge.

“Just what kind of a judge this particular judge may be, and just what kind of a two-legged human being he is, we don’t know. But the fact that he is a judge, and a federal judge at that, doesn’t make him any more or less of a man than he was before he went on the bench. ,

“So the people’s rights here will depend largely upon how his mind works, and whether he thinks in straight lines or around corners. Anyhow, whether he is a great big man or a little bit of a man, he will have a whole lot to say In finally determining tlie argument between tlie people of Toledo and the bond and stock gamblers and speculators.”

The excuse for this editorial is to demand that the city employ, to assist the solicitor, attorneys “to impress the court” who equal in ability “the high priced legal talent that is for sale to the highest bidder” and employed by the “Big Con,” and thus prevent, if possible, the latter from getting a “strangle hold” on the people in the courts.

In a written argument filed by counsel for respondents, this production is dismissed' from consideration as “merely an intensely emphatic assertion” of the judge’s human limitations,

Author-Respondent Cochran, disclaiming any intention to reflect on the judge’s integrity, testified that he wrote it in language which the ■common people would understand, and in such a way as “to get the punch in” and to make the people take an interest in the case; that, although Judge Killits had held court in Toledo for nearly four years, he did not know whether or not he was a judge who would try cases exactly on the law, or be specially impressed by the professional standing of counsel for either party.

As part of the same editorial page appeared this:

“Holding court over tbe telephone is a new one, but, it seems to be a very satisfactory method of doing business.”

March 26, being the day of the hearing, the paper carried a heading in type nearly an inch high and extending across the whole front page, “Killits Upsets Low-Fare Order” repeating the heading on another page to which the subsequent article was carried. For subheads, it said:

“Holds Schreiber Ordinance Should be Suspended Until Hearing as to its Fairness. Instructs Marshal to have Deputies Beady to Enforce Buling.”

In the body of the article it is made very clear that the impression conveyed by these headline statements is wholly false, for it is said, what was a fact, that there was no hearing in Cleveland; that the judge—

“was ill in bed with a temperature of 102. He postponed the hearing until ■he could return to Toledo on Saturday. Judge Killits sent a five-page typewritten communication, through Clerk Wilson of the local United States court, for the information of the people of Toledo.”

The statement' was published in full and was nothing more than a setting out of the respective rights of the city and the traction company when a franchise expires, and an appeal to the judge’s fellow citizens to maintain order until the court could hear the question, expressing confidence that, notwithstanding what had been predicted of the meeting for Friday night, the good sense of the city would preserve order. Not a word can be found in it which even hints any conclusion as to the merits or demerits of the issue presented by the motions. The only possible foundation for the assertion of the heading was contained in a separate statement on page 5 of the issue, in which this was said of the court: '

“In a brief statement from tlie bench here to-day, Judge Killits said no formal order had been, issued in regard to the Toledo car situation, hut that one might he issued on Friday night if the situation warranted. The judge assumed the bench only for a few moments. He said: ‘As a citizen of Toledo, X ask that both 'tile representatives of the city and of the company approach these problems in the proper way. It is plain to me that there is a chance to settle these questions with honor to both sides. No reasonable man wants to be other than fair to the company and the company must be fair to the city. No formal order has been issued, but if conditions warrant it to-morrow night one will be issued.’ ”

The same issue of the 26th contained this:

“Preparations are going on for an enormous mass meeting at Memorial Hall on Friday evening to deal with the street car situation. Leaders have been planning to hold the crowd until midnight and ask that they tender only a throe-cent fare when they board the cars after that hour.”

It is also reported that the Central Labor Union would advise labor union men to attend the meeting in force.

Besides, four editorials were published in this issue, one to the effect that “the people will have a sort of referendum vote as to whether they will pay three cents or five cents for a ride on the street cars”; another poking fun in a familiar way at persons prominently connected with the pending case, respecting the proposed meeting in Memorial Hall Friday night; another giving assurance that the police will not "use their clubs on car riders who refuse to pay more than three cents car fare after Friday,” because Sam Jones, some time mayor of Toledo, once said that “the law is only what the people will back up).” The last was under the heading, “In the Balance,” and was:

“The case of the rights of 200,000 common people versus the rights of some wealthy investors and speculators will now be placed in the balance by a judge of the United States court. Let substantial and not technical justice be done.”

On Friday, March 27, the day before the ordinance was to be effective, it was announced that all parties urged that no violence be indulged that evening, but that the meeting for Memorial Hall that night would lie held. The fact that the court hearing would not be until Saturday forenoon was announced. By way of cartoon, a double one was offered, labeled, “As we lose Kapp we get Lapp.” One panel represented the marshal of this court (Lapp) proceeding in great haste towards Toledo, bearing a hand bag marked “Order from Judge Killits,” although in fact there was no order; while the other depicted the public safety director of the city (Kapp), who was the head of the city’s police department, in equal haste on his way to Philadelphia. Editorially, under the caption, “The Big Con’s Attitude the Same Old Defiance of the People,” set in large type, in double-column space, it was said, among other things:

“It is now a trespasser on many streets of Toledo, and will be on practically all of them by to-morrow morning. It has now rushed into the federal court to try to take from the hands of the people of Toledo the right to control their own streets, and .to make terms under which the Big Con may use those streets.”

That there was a lively possibility of much disorder on the expiration of the franchises there can be no question. The News-Bee’s news article of the 27th spoke of “the anxiety about trouble Friday night” as part of the situation; and “featured,” with large headlines, that a sentiment that the city should not be disgraced by disorder was arising causing much protest against tendencies in that direction already noted in its columns. . The fact that cots were being placed in the federal building to facilitate night service of United States marshals, if necessary, was the text of another article, with the announcement that officers in addition to these stationed in Toledo were to arrive from Cleveland to assist in preserving order. The paper had the enterprise to print the portraits of two of the local deputies in this connection. . To avoid a chance for disorder the street car company notified conductors to carry persons free after Friday night who refused to pay more than three cents. In two days the free riders numbered more than 62,000.

Saturday’s issue (March 28) published a news article in five columns on the situation, under a main headline across five columns: “Thousands Riding Free; Killits Hears Big Con Plea” — in which the order of the company is printed that persons be carried free rather than that conductors have any controversy over the tender of three-cent fare pending the court proceedings, and it was stated that the court was hearing the motions against the ordinance. For a cartoon in connection with the news article and relating to the attempt of the mayor to' insist on a three-cent ride during the night, that officer is represented as saying “I’ll pay no more than three cents,” with Mr. Doherty advising the conductor that the mayor should be regarded as his guest. The title of the cartoon was: “Doherty — The Man Who Put Con in Conductor.’.’

Monday evening the motions for a temporary injunction restraining the enforcement of the ordinance were denied, because the measure itself provided that it should be enforced through an order out of the state court for which the city solicitor was directed to and, it appeared, was about to apply. It was obvious that the reason advanced in this court for a temporary injunction, namely, that the ordinance was unreasonable, was available to the company to resist the solicitor’s application for an order out of the state court to enforce it, and that, until the state court had found it enforceable because reasonable, the company could stand its ground against it and in such attitude was entitled to protection. The ordinance was neither self-enforceable nor operative without order of some court.

Although the court had specifically held that the city could summarily stop the use of the streets for traction purposes by the company, the same issue (March 31) of respondents’ paper which carried the decision bore this editorial utterance:

“To the layman it appears peculiar that the city carinot stop the company's cars because the public is entitled to the service or requires it, but the company can stop the cars at once on expiration of its franchise rights, regardless of the needs of the people. Reminds us, somehow, of the elder Vanderbilt.”

By answer respondents say that, if this may be construed as a misrepresentation of the court, “the error was unintentional.”

■ Early in August, the main case being still on the docket of the court, the plaintiffs and the defendant traction company filed supplemental pleadings setting up the failure of the city solicitor to proceed, as it was asserted he had agreed to do, to seek an order for the enforcement of the ordinance according to its provisions; that because of threatened disorder the company was carrying passengers free who insisted upon three-cent rides; that its losses in this behalf aggregated a thousand dollars a day; that its protests to the city were met with specific orders to the police of the city to require the company to carry passengers for three cents, with a policeman on each car for that purpose, if necessary ; and that the city was threatening to compel the company to maintain a street car service under the ordinance and to restrain, by the use of the police force of the city, the removal of its cars from the streets.

Motions were renewed under these circumstances, supporting by affidavits the prayer of the pleadings in the case that an injunction be granted restraining the city from compelling the company to maintain service in the city under the Schreiber ordinance and from preventing the company from removing its cars from the streets and discontinuing its service. An affidavit filed before the hearing of these motions, and never denied, set forth the fact that to the date of the hearing the company had been compelled to carry free under these circumstances 8,-000,000 passengers.

August 14, hearing on these motions was taken up. Testimony was then produced tending to show that the ordinance was confiscatory ; that the company in fact, with the routing of lines then obtaining, could not carry passengers for three cents and pay bare operating expenses. On this showing, the city was directed to support the ordinance by testimony, and, at the city’s request, the hearing was passed to September 8, that the city might be prepared. This was plainly, as shown by the record and the court’s statement, the familiar situation of the sustention of the burden of proof by the side having the affirmative and the requirement upon the negative (here the city) to then produce its defense, yet the News-Bee treated it, in an article headed: “Test of Schreiber Ordinance in U. S. Court Sept. 8. Killits Puts Burden on the City” — as though the court were requiring the city to prove primarily its legislation to be valid. The impression so occasioned seems to have been the inspiration later of an inflammatory attack on the court by a local organization, out of which grew the attachment for contempt of John Quinlivan.

From August 14 to September 5 the court was allowed to escape the paper’s attention. On the last-named date, this editorial paragraph appeared:

“Ii Judge Killits should be held in Canada while Henry L. Doherty is marooned in Wall street, what would we ever do? Still Peter Parker is always willing to give us good advice.”

The Peter Parker referred to is admitted to be a citizen who had once been subject to much criticism, whereupon he left the city. Returning some time afterward, he had been a frequent writer of letters to the News-Bee on public questions.

September 6, the Socialist “local” of Toledo adopted resolutions relative to the pending case. On the 9th, while the court was, hearing the case, the News-Bee published a portion of the resolutions in the following article:

“Socialists Call Big Con Trespasser.

“Toledo local of the Socialist party has adopted a resolution which refers to the street railway company as a trespasser in the streets, and claims no judge has legal authority to compel a city to insure a corporation profit. The resolution concludes:

“ ‘We contend that the present Sehreiber ordinance is prior to, and above any judge or court made law. And we contend that no judge, federal or otherwise, has the right to unmake laws made by a duly elected legislative body. We contend further that the people of Toledo have by their votes sustained the Sehreiber ordinance.’ ”

'September'8 and 9, the motions were finally heard. On the last day the city, through the solicitor, admitted that the ordinance was unreasonable and impossible to be followed by the company without loss. The court then took the issues under advisement, stating distinctly that no decision would be handed down for two or three days, when we should have considered the objections to jurisdiction advanced by the city. It was also stated that, if the court should decide to restrain the operation of the ordinance, the enforcement of the order of injunction would be suspended for a short time to allow public feeling to cool.

Although it was plain that yet the court had taken no final action, that it was still considering its jurisdiction to act at all, the issue of the News-Bee of the 10th, containing an account of court proceedings on the 9th, was headed with the false statement in large type on the front page: “Row Fares Banned by U. S. Judge.” The evening of this issue, at the regular meeting of the Central Labor Union, made up of accredited delegates from the numerous labor organizations of the city, a resolution was read by John Quinlivan, business agent of the union, denouncing the court for placing “the burden of proof of the Sehreiber ordinance on the city,” and recommending that preliminary steps be taken by the union for the judge’s impeachment should he render a decision in the case adverse to the city. The issue of the News-Bee, September 11, contained an account of this meeting and the discussion of the proposed impeachment, under the heading: “Judge Killits is Criticized in Central Labor Union Meeting.”

An attachment was issued September 11 for John Quinlivan; whereupon, in the first edition of the News-Bee of Saturday, the 12th, on. the streets before the court’s decision in the pending case, in the guise of printing the news of the proceeding against the labor organizer, the offensive and threatening language attributed to him was extracted from the body of the article and placed in different and more prominent setting, embellished with a rule border known as “boxing,” as a distinctive feature of the front page, after this fashion:

“Killits Accuses John Quinlivan of Contempt

“Basis of Charges Against Union Leader.

■‘These are the remarks alleged to have been made by John Quinlivan, and on which Judge Killits bases his contempt charges:

“ ‘The street car situation of Toledo is in the hands of a friend of the Rail-Light.

■‘ ‘Judge Killits has demonstrated from the first that he was at all times favorable to the Rail-Light.

“ ‘Any fair-minded citizen will see that when Killits placed the burden of proof of the Sehreiber ordinance on the city that the city was going to be the goat. The Central Labor Union should adopt stinging resolutions and let our federal friend know what we think of him.

“ ‘The burden of proof should have been placed on the Kail-Light. Killits and the press are preparing to hand the people a lemon. They are unfair to the people.

" ‘Impeach Killits.’"

These publications conclude the foundation for the first count.

Under the second count, the information sets up that in issue of September 12, under the heading, “Quinlivan is Ready to Defend Killits Contempt Charges,” the paper published an account of Quinlivan’s attachment, in which it is said that “Judge Killits stated on Saturday that he would hear the case himself”; and that, on the 14th,' again in a news article dealing with the same case, the statement was repeated in this form, “Killits has announced that he will hear the case” ; and that, on another page of the issue of September 14, a communication, under the head, “In the Editor’s Mail,” was published, reading:

“The Quinlivan Case.

“To the Editor:

“Regardless of whether Judge Killits has or has not the right to sit in judgment in the Quinlivan case, it seems to me that the ethics of the affair would lead him to either appoint some other judge to hear the evidence, or better still, have some other authority make the selection. It stands to reason that such tactics on the part of the judiciary will not have a tendency to instill in us more confidence. [Signed] Paul G. Dennie.”

It was testified by Managing Editor Howard that this letter was written in his office by Dennie and edited and revised by him (Howard). And in the same issue, casting its utterances in prominent black-face type set across two columns, at the head of the editorial page, the paper said:

“Would it be contempt to remark that it is a peculiar situation where the officer who makes the charge, also considers the evidence, renders the verdict and imposes the sentence.”

As the offering under the third count, it appears that a rule in contempt was issued out of this court for Harry J. Howard, managing editor of the News-Bee, directing him to show cause why he should not be punished for contempt for certain publications, including those set up in the second count and dealing with Quinlivan’s case, and that said proceeding against Howard was pending when, with relation thereto, respondents published, as a feature of the first page of the paper for September 17, in larger type than that used ordinarily for reading matter, and across two columns this, with reference to the charge* against Howard:

“The News-Bee and Judge Killits.

“As we see it the public interest in the contempt proceedings instituted by Judge J. M. Killits against the News-Bee and Managing Editor Howard, depends not so much on what the judge sees fit to do or not do, as it does upon how his action may affect the policy of the News-Bee.

“It has been the policy of this paper in the past to discuss frankly and fearlessly all questions of public policy and interest. And without regard to whether our statement of the truth, as we see it. pleases or displeases this, that or the other citizen — even though that citizen happens to be what is commonly known as a judge.

“We have no desire to influence the conduct of any judge in interpreting the law in any particular case. And we have no intention of permitting any judge of any court to influence our judgment in defending the public in* terest.

“We don’t want to censor judicial decisions, and will not permit judicial censorship of the News-Bee’s editorial policy.

“We have notions of our own about contempt of court. One of them is that nobody but the judge himself can inspire public contempt of the court over which he happens to preside.

“The people of this country, because of patriotic education from early youth, start out with respect for our federal courts. When that respect changes to contempt, it can be only because of the conduct of a judge or judges.

“We have said before that after all, Judge Killits is no more than a two-legged man like any of the rest of us. We repeat it.for the sake of emphasis. No judge judges by divine right even though he holds his job for life.

“No judge is infallible or omnipotent. No physical or mental change takes place when he is lifted from the practice of law and placed upon the bench, that transforms him from a human being into a god.

“And what kind of a judge he turns out to be depends almost altogether on the kind of a man he was beforehand.

“We shall not discuss now the merits of this particular case. We do not discuss cases while they are pending, with any purpose of interfering with the administration of justice.

“We prefer to give every judge free rein to make either a Solomon or monkey of himself, if either be possible.

“But once the case is decided, we shall say and publish whatever we think best for the public good, whether it pleases or displeases any judge — even if that judge happens to be John M. Killits.”

The News-Bee is published daily in several editions. On the 17th of September the foregoing article appeared in the so-called noon edition. About 1 o’clock of the 17th an order to show cause in contempt was filed against the Toledo Newspaper Company, Cochran, and Howard, based on the several publications, including the foregoing, appearing in the early edition of that day. Mr. Cochran testified that he was aware of the filing of this order and its scope as soon as it was filed, being at the courthouse at the time. Four subsequent editions of the News-Bee were published on the 17th, including its regular or home edition, each bearing the above editorial across two columns in the center of the front page, while in an adjoining column was, in each edition after the noon edition, an account of the fact that respondents were directed to show cause why they should not be punished for contempt for publishing, among other things, the identical writing. This order was superseded by the present information.

[1-4] The inquiry is direct, of course, whether the offenses charged to respondents are within the scope of section 268, Judicial Code (section 725, R. S.; Act of March 2, 1831), which reads, so far as it applies here at all, as follows:

' “The said courts shall have power * * * to punish * * * con-tempts of their authority: Provided, that such power * * * shall not be construed to extend to any cases except the misbehavior of any person in their presence, or so near thereto as to obstruct the administration of justice,” etc.

The language respecting the proviso has- been slightly changed from the original act, but it is plain that the revision has not made necessary a different construction. It is settled that the statute is a limitation, through definition, upon the powers of inferior federal courts to punish contempts by summary process. Ex parte Robinson, 19 Wall. 505, 510, 22 L. Ed. 205, and cases citing it.

It is contended by respondents, upon authorities soon to be considered, that the statute was intended by Congress to, and does in fact, completely exempt newspapers from responsibility in contempt under all circumstances. This claim, and its support, are deemed worthy of fullest consideration.

But one federal case is known to us to be reported and decided prior to the act of 1831, but under the act of 1789, directly dealing with an alleged newspaper contempt; the act of 1789 providing power in the courts “to punish by fine or imprisonment at the discretion of such courts all contempts of authority in any cause or hearing before the same.” We refer to the case of Hollingsworth v. Duane, Wall. Sr. 77, Fed. Cas. No. 6,616, in which the court, two judges sitting, held that:

“Any publication, pending a suit, reflecting -upon the court, the jury, the parties, the officers of the court, the counsel, etc., with reference to the suit, or tending to influence the decision of the controversy, is a contempt of the court, and punishable by attachment.”

Decisions to the same effect in state jurisdictions were not rare, and that this was a proposition undebatable at common law we believe will not be disputed, whatever may have been the uncertainty of the common law respecting mere libels on judges or attacks on the courts not connected with pending causes; and the act of 1879 undoubtedly was designed to clothe federal courts with common-law powers in this respect, although the Supreme Court, in United States v. Hudson et al., 7 Cranch, 32, 3 L. Ed. 259, said:

“'To fine for contempt, imprison for contumacy, enforce the observance of order, etc., are powers which cannot be dispensed with in a court, because they are necessary to the exercise of all others; and so far our courts, no doubt, possess powers not immediately derived from statute

—thus seeming to suggest that statutory authority was not necessary. Many subsequent decisions of the Supreme Court approving the Hudson Case, although holding that the act of 1831 acted as a limitation upon the exercise of the power, so decidedly affirm its inherency in a court of general jurisdiction as essential to the tribunal’s very existence as to render it very doubtful if that court would support an act taking away the power altogether from one of this jurisdiction.. Ex parte Robinson, supra; Ex parte Terry, 128 U. S. 289, 302, 9 Sup. Ct. 77, 32 L. Ed. 405; Interstate Commerce Commission v. Brimson, 154 U. S. 447, 489; 155 U. S. 3, 14 Sup. Ct. 1125, 15 Sup. Ct. 19, 38 L. Ed. 1047, 39 L. Ed. 49; Ex parte Savin, 131 U. S. 267, 275, 9 Sup. Ct. 699, 33 L. Ed. 150; Eilenbecker v. District Court, 134 U. S. 31, 36, 10 Sup. Ct. 424, 33 L. Ed. 801; In re Debs, 158 U. S. 564, 594, 15 Sup. Ct. 900, 39 L. Ed. 1092; Bessette v. Conkey, 194 U. S. 324, 327, 24 Sup. Ct. 665. 48 L. Ed. 997.

The case at bar demands a construction of just so much of the statute quoted. If respondents are responsible, it is because we must conclude that, upon the whole case, the acts charged against them have the quality of misbehavior so near the presence of the court “as to obstruct the administration of justice.”

At the outset we are relieved of the consideration of the constitutional guaranties of a free press, by the decision in Patterson v. Colorado, 205 U. S. 454, 462, 27 Sup. Ct. 556, 558 (51 L. Ed. 879, 10 Ann. Cas. 689), in which .the court, speaking in a case of newspaper contempt, said of the guaranties in the first and fourteenth amendments:

“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.”

The court holds that the rule which made criminal libel punishable despite the guaranty of a free press “applies yet more clearly to con-tempts.” No case has been more generally cited with approval on this subject than Respublica v. Oswald, 1 Dali. 319, 1 L. Ed. 155 (1788), a case of interference by publication with judicial proceedings in a pending cause, in which, considering the constitutional guaranty, the court said that “it is impossible that any good government should afford protection and immunity” to those who abuse the privilege of a free press. The current of authority since to the same effect is unbroken.

The main proposition asserted by respondents, if valid, produces a startlingly absurd result. According to it, they are immune from responsibility for an attack upon an Ohio federal court under the construction, for which they insist, of section 268, Judicial Code, which conduct, if perpetrated upon an Ohio state court under precisely similar circumstances, would involve them in attachment for contempt under a state act of almost precisely the same tenor as that of the federal act, and passed by the Ohio Legislature in imitation of the latter (Ohio Act of 1834; section 5639, R. S.; section 12136, General Code of Ohio). The decision of Myers v. State, 46 Ohio St. 473, 22 N. E. 43, 15 Am. St. Rep. 638, to be discussed later, settles responsibility of newspaper editors and publishers under such circumstances in Ohio procedure, and, following Patterson v. Colorado, supra, which cites Myers v. State with approval, a conviction in the state court under the Ohio statute would be upheld by the Supreme Court of the United States.

It cannot be that statutes of substantially the same scope and language in two jurisdictions of the same geographical application should so vary in meaning and intent that one should have virility, with respect to a powerful public influence, to vindicate the highest public interest, while the other, in an application to the same kind of circumstances, should be impotent to sustain in any degree the same function. '

Chancellor Kent, on an occasion hereinafter referred to, said that such a construction of the act offered by respondents was unreasonable. Nevertheless it is supported by direct authority. In re Poulson, Fed. Cas. No. 11,350, a Circuit Court case in 1835, in Pennsylvania, the judge sitting therein entertaining the same view of the law in United States v. Holmes, Fed. Cas. No. 15,383. In some measure, also, it is the view of the court in Re May (D. C.) 1 Fed. 737, 743; Morse v. Montana Ore Co. (C. C.) 105 Fed. 337; and Cuyler v. A. & N. C. R. (In re Daniels) 131 Fed. 95, a decision by the District Court in the Eastern District of North Carolina.

We are confident that it may be made entirely clear, if we may be allowed time and space necessary, to show that "this claim for the act’s purpose is untenable; that Congress never intended to, -and did not, immunize newspapers from responsibility in contempt for interference by improper comment on pending cases; and that a myth in this respect has grown up, having its origin wholly in the views of the court in the Poulson Case, supra, Baldwin, Justice, that being the first reported •decision after the act of 1831. In understanding Justice Baldwin’s views, it may be well to consider that he was a Pennsylvanian, from a state whose Legislature in 1809 had passed an act declaring that no newspaper comment, however invidious, concerning a pending case, should be construed into a contempt punishable by summary process. He says, in fact, in his opinion, without the slightest record to justify the assumption, that he believes Congress to have been influenced in the passage of the act of 1831 by the Pennsylvania statute. He laments:

“The court is disarmed in relation to the press; it can neither protect itself, or its suitors; libels may be published * * * without stint; the merits of a cause depending for trial or judgment may be discussed at pleasure; anything may be said to jurors through the press, the most willful misrepresentations made of judicial proceedings, and any improper mode of influencing the decisions of causes by out of door influence practiced with impunity. * * *

“The press is free, if not set to work in the presence of the court, or so near as to interrupt its business. The law does not prohibit any endeavor made to .influence or intimidate a juror or witness, if corruption, force, or threats are avoided. Papers may be put into their pockets, conversation held with them, newspapers put into their hands, or statements made in relation to any matter in issue while they are actually impaneled. The court may regret and censure the practice, and perhaps admonish the party who thus tampers • with a juror or witness, but can neither punish the offense noi prevent its repetition. The law has tied their hands. The judges must be passive. It is not for them to be the first to set the example of disobedience to the law, or attempt to evade plain enactments. * * *

“For the protection of parties, for their security of a fair and impartial trial and decision of their case on the evidence and law which apply to it, to defend them against the efforts of the press or of individuals to excite a prejudice in the minds of a jury, to induce them to find a verdict on out of door statements, or other means of perverting their judgments — no legal' «heck is interposed.”

There is much more of the same language in the Poulson Case, which finds its echo in a subsequent opinion of the same judge, being the second decision under this statute — United States v. Holmes, supra.

If this were the law, then indeed would an inferior court of the United States be largely shorn of “one of the attributes, one of the powers necessarily incident to a court of justice” — the power “of vindicating its dignity, of enforcing its orders, of protecting itself from insult.” Eilenbecker v. District Court, 134 U. S. 31, 36, 10 Sup. Ct. 424, 33 L. Ed. 801.

That this court is not so impotent we are prepared to insist, notwithstanding the authorities cited, all of which clearly are influenced by these views of Justice Baldwin, which, on the record we shall hereafter produce, are surely erroneous. We digress, however, to note that one of the two reasons given by Justice Baldwin in confirmation of his faith has disappeared with the decision in Savin, Petitioner, 131 U. S. 267, 9 Sup. Ct. 699, 33 L. Ed. 150. The second section of the act of 1831, now section 5399, Rev. Stat., made it a crime to “corruptly or by threat, or force, obstruct or impede, or endeavor to obstruct or impede, the due administration of justice,” etc. Justice Baldwin said: '

"This provision is in further confirmation of the view taken of the first section. It is a clear indication, of the meaning of the law, that the misbehavior which may still be punished in a summary manner does not refer to those acts which subject a party to an indictment. To construe it otherwise would be to authorize accumulative punishment for the same offense. * * * The first (section) ‘alludes to that kind of misbehavior which is calculated to disturb the order of the court.’ * * * ‘JChe obstruction of the administration of justice,’ in the first section, refers to that kind of behavior which actually disturbs the court in the exercise of its function while sitting” — ■ while, he proceeds to say, all other invidious acts, if reached at all, are under the second, or criminal, section.

But the Supreme Court, in the Savin Case, held that the federal courts, under this act, may punish summarily as contempt, under the first section, misbehavior which is also punishable by indictment under the second section of section 5399, R. S.

In the May Case, supra, the point decided was that a juror was in contempt for misbehavior near to the presence of the court when he visited a codefendant, under an indictment in which separate trials were had, at the latter’s home, and there talked on the merits of the case on trial. The court said (1 Fed. 737, 742):

“The act does not define how near the court the misbehavior must be, nor the character of such misbehavior, and I think it may fairly be construed to extend to any misbehavior by a juror, in his capacity as such, wherever committed, since such misbehavior necessarily tends to obstruct the administra-ron of justice.”

There was clearly no occasion for the court to say (page 743 of 1 Fed.):

“The act was passed for the purpose of preventing the courts from interfering with newspaper comments upon trials.”

In the Morse Case, supra, the decision was that a party aggrieved by improper newspaper comment pending his case was not precluded from urging its prejudicial influence on the verdict as a ground for new trial by a failure to ask for an attachment in contempt. As a nonessential part of the opinion’s argument, the court expressed a doubt whether contempt would lie in the circumstances then before it.

The views, therefore, of Judges Brown and Knowles respecting this-matter are pure dicta. The Daniels Case (C. C.) 131 Fed. 95, upon which respondents so strongly rely, will be considered later.

We would not venture to disagree with the construction oj a statute by a justice of the Supreme Court, although sitting as a nisi prius judge, extended in an opinion so nearly contemporaneous with the passage of the act, unless fortified with very considerable support. Jus-Lice Baldwin’s views are, as we shall see, plainly the control of whatever subsequent authority respondents are able to offer. They are so confident, comprehensive, and positive as to seem to have been uttered ex cathedra. However, he bases them upon contemporary history, the record of which is as available to us for examination as in his time. This is not a situation where there has been a continuous and consistent construction for a long period; for, when we consider the authorities offered by respondents, all controlled by the Poulson Case, we find that all but one of them are pure dicta, and the other nearly if not quite so (In re Daniels, discussed infra); and when the principal reason relied on by Justice Baldwin for his holding, namely, that the criterion of “nearness” to the court’s presence which resolves a misbehavior into a contempt is a physical or topographical propinquity to a sitting court, is considered, we find him supported only by what is seen to be but a dictum of Justice Field, in Re Robinson, supra, to be later considered, while it is controverted by very important series of decisions by all the federal courts down to the present time.

The Poulson Case is respectable because of the time of its decision and the eminent quality of the judicial mind which considered it. As to the first, if we may judge of the paucity of reported cases, the federal judiciary has not suffered many attacks of the character before this court, which might call its soundness into question. Of the second element of importance, it may be said that the infallibility of an inferior court decision is to be tested by the premises and the soundness of its reasoning.

Again, this decision does not gain strength because it is of a statute couched in ambiguous language (Houghton v. Payne, 194 U. S. 88, 99, 24 Sup. Ct. 590, 48 L. Ed. 888); for no ordinary construction of section 268, or of the original act, produces a hint that any category of behavior involving obstruction of justice is immune. It cannot be claimed, of course, that any right acquired by virtue of the construction in the Poulson Case will be divested if it is disregarded. Where no rights intervene, especially when the language is unambiguous, a question of construction of a federal statute is not judicially settled until the Supreme Court has spoken. Wilson v. City Bank, 17 Wall. 473, 21 L. Ed. 723; Andrews v. Hovey, 124 U. S. 694, 716, 8 Sup. Ct. 676, 31 L. Ed. 557.

The opportunity to go into the legislative history of an act whose scope is a subject of controversy is clear. We do not ignore that, generally, the statements of views of members of Congress, in debate, are not proper sources of the meaning of a statute (United States v. Freight Association, 166 U. S. 290, 318, 17 Sup. Ct. 540, 41 L. Ed. 1007); but the character of the debate, whether sentiment was divided or unanimous, the environment df a bill, its legislative vicissitudes, and pertinent contemporary history, may be considered (Johnson v. Southern Pacific Co., 196 U. S. 1, 20, 25 Sup. Ct. 158, 49 L. Ed. 363; Lincoln v. United States, 202 U. S. 484, 498, 26 Sup. Ct. 728, 50 L. Ed. 1117; Standard Oil Co. v. United States, 221 U. S. 1, 50, 31 Sup. Ct. 502, 55 L. Ed. 619, 34 L. R. A. [N. S.] 834, Ann. Cas. 1912D, 734). In Johnson’s Case the court went to the Congressional Record to ascertain “the mind of Congress” to assist it in construing the automatic coupler act, and, in the Lincoln Case, the division of sentiment over the act of July 1, 1902, attempting to ratify executive dealing with the Philippines, was considered in interpreting that statute.

Especially might this court go to the legislative history of the act when it is asked, to follow a construction violating, as that of Justice Baldwin seems to, several accepted canons of interpretation. A statute under construction should be harmonized with prior acts and decisions, if reasonably possible. Blair v. Chicago, 201 U. S. 400, 459, 469, 26 Sup. Ct. 427, 50 L. Ed. 801; Lincoln v. United States, supra. The interpretation should be reasonable, and should be that which comports with the public welfare or public policy, as the Supreme Court applied the rule to "railroads in construing the Sherman Act. United States v. Freight Association, supra, 166 U. S. at pages 320 et seq., 17 Sup. Ct. 540, 41 L. Ed. 1007.

In Harris v. Runnels, 12 How. 79, 86 (13 L. Ed. 901), the court said:

“It is a rule, if effects and. consequences shall result from an interpretation oij a statute contrary and in opposition to the policy which it discloses, * * * such an interpretation must be rejected.”

Justice Baldwin would read into the statute an exception from its operation which is against public policy, and, in.doing so, antagonizes the principle that a purpose in derogation of the common law must be, cit least visible

In Maxwell v. Dow, 176 U. S. 581, 602, 20 Sup. Ct. 448, 456 (44 L. Ed. 597), the Supreme Court said that it is less material, in case of a constitutional amendment, to consult the legislative history of a measure, than when an ordinary bill or resolution is to be interpreted, but, even then:

“The safe way is to read its language in connection with the known condition of affairs out of which the occasion for its adoption may have arisen, and then to construe it, if there be therein any doubtful expressions, in a way so far as is reasonably possible, to forward the known purpose or object for which the amendment was adopted. This rule could not, of course, be' so used as to limit the force and effect of an amendment in a manner which the plain and unambiguous language used therein would not justify or permit.”

Wherefore, we submit, we may refer to the impeachment of Judge Peck, closing with his acquittal January 31, 1831, as the inspiration of the act in question. The act’s genesis in that trial is historically conceded, and it is clearly discernible from the records of both the trial and the act’s passage that, not only is an interpretation to wholly exempt newspapers from the measure’s operation not sustained in any degree by utterances on the floor of either jipuse of Congress, but is inconsistent with the whole current of debate. The charge against Judge Peck was based on the fact that, having in December, 1825, handed down orally an opinion determining fincdly a case then before him and reducing his judgment to a decree specifying the precise points upon which the court reached its determination, three months thereafter he published a written opinion, in which he confessedly traveled, not only Outside of his oral delivery, but beyond the record of the concluded case, and that, because counsel' in the case in print criticized the reasoning of the judge in this published opinion upon matters, as the judge himself confessed, not before him in the original hearing, he attached the latter as in contempt of course, and imprisoned him, and disbarred him from practice for 18 months. For the facts now presented, an examination has been had of the Congressional Globe for the 21st Congress, of the journals of both Houses, of Gales and Seaton’s Register of Debates, and of Benton’s Abridgment.

The day after the House received the report of the failure of the impeachment (February 1, 1831), Mr. Draper, of Virginia, submitted the following resolution, which was agreed to without a division:

“Resolved, that the committee on the judiciary be directed to inquire into the expediency of defining by statute all offenses which may be punished as contempts of the courts of the United States.”

What Mr. Draper had to say in explaining the purpose of this resolution is all the reported discussion had in either House on the subject after the Peck trial; wherefore we quote briefly: Saying that it was not his intention to discuss a question which had recently been much agitated elsewhere, he continued:

“I wish to know whether if I myself choose to go into the public newspapers to defend any vote I give here it be not competent for any man who thinks proper to do so to enter the same forum upon equal ground to show that my opinion is wrong.”

And, following with an argument that it would not be contempt of the House if it were sought to criticize him under such circumstances, and that no other department of government should have protection denied to the legislative, he proceeded:

“Whenever an individual in office lays aside his offioial capacity, and endeavors by argument and reason to convince others that anything which he has done officially had been done properly, he has a right to bo met by whomsoever, differing in opinion from him in any forum which he himself may select. * * * It may be said, sir, in opposition to the object of this resolution, that there will be difficulty in defining contempts of court. Though this may be true, we shall find no difficulty in defining what are not contempts. We can embrace, in any legal provision on this subject, many cases which are not contempts. We might say, for example, that it would not l>e a contempt of cmirt to express an opinion upon any decision finally made in court, etc. We might declare that it should not he a contempt of court in any one to say that a judge is not immaculate. But the law ought to be so clear that every individual may he able to look to the statute book, and know whether, in any thing that he may do, he acts within the law or not.” (The italics are ours.)

The proceedings of record thereafter were as follows: February 10, a bill (No. 620) “declaratory of the law concerning contempts of court,” was orally reported from the judiciary committee by Mr. Buchanan, and, read twice, referred to committee of the whole House; February 28 read third time, and passed without debate, division, or roll call; March 1st passage of bill by the House referred to the Senate, and referred to the Committee on Judiciary; March 2 orally reported for passage with amendment by Mr. Webster, considered, read three times, and passed, without debate, division, or roll call; March 2, House concurred in Senate amendment, with an additional amendment, in which the Senate concurred, and the bill was passed. Nowhere is there recorded a statement of the nature of amendments, nor hint that anything more than formal attention was given to a subject which had been thoroughly discussed in the Peck Case. The Globe does not contain a line on the subject after the introduction of Draper’s resolution.

Going now, as we may (The Delaware, 161 U. S. 459, 472, 16 Sup. Ct. 516; 40 L. Ed. 771), to the debate in Peck’s Case, if further light on the attitude of Congress out of which the act grew is demanded, we find that, when the resolution for impeachment was up for initial consideration in the House,. Ellsworth, for the committee, directed attention to the fact that Judge Peck had “neither jurisdiction nor provocation; he had finished the case, adjourned the1 court, and descended from his judicial station to that of an essayist of a newspaper.” “Shall it be declared,” said he, “to the American people that, after a judge has given hisr opinion and dismissed the case, he may arrest a citizen, drag him before his tribunal,” and prosecute him for contempt?

When the matter was on for adoption of the report, Buchanan, making the principal argument, went into great detail to explain that the case was .entirely concluded when the alleged contempt was perpetrated. He urged that, notwithstanding that the language of Blackstone and Eord Hardwicke “is sufficiently general to embrace other cases,” the authorities either from England or America did not include any case in which the courts had attempted to summarily punish libels upon their proceedings “except in causes actually depending.” Continuing, he said:

“I shall not affirm that no ease exists in which the courts of the United States ought to possess the power of punishing summarily for constructive contempts. If, mJiilst a cause is depending, particularly a case to be determined by a jury, an inflammatory publication should be made m the newspaper, touching the question to be decided, calculated to enlist public feeling in favor of the one party or prejudice it against the other, the court may possibly, under such circumstances, inflict justice upon the author.” (Italics, here and elsewhere in this opinion, ours.)

In this connection he called attention to the law (passed in 1809) of Pennsylvania denying even this power to the state courts. A year later, closing the prosecution, he expressed a personal view that courts ought not have the right to punish summarily even libels respecting pending cases, however not urging the proposition as applicable against Judge Peck, but emphasizing again the fact that in the case before the Senate judicial functions had entirely ceased before Judge Peck attempted anything under criticism.

Other prosecutors whose addresses are preserved were McDuffie and Storrs. McDuffie, with great particularity, urged that the case had been concluded, that “there was an end to the judicial functions of the judge as to that case,” when he attempted to resent a published criticism of an “extrajudicial opinion.” He asserted that no man of any sense would contend “that the judges of the' United States had any power, any right to punish any libel, however flagitious, on any act of the court, after it had been done, as a contempt.”

Storrs maintained the position:

“That no free citizen could be punished by the summary process of attachment for a libel or contempt against any court in a cause not pending in that court, * * * and that the conduct of Judge Peck tended to break down all the securities and guards which the law had raised for the protection of the liberties of the American people.”

There is no intimation in any discussion of intent to exempt newspapers from summary process in contempt under all circumstances.

It is worthy of note that two men of great influence, occupying opposite sides in the Peck controversy, handled this measure on its passage. Mr. Buchanan was chairman of the House judiciary committee. It would seem that, if he were asking Congress to follow Pennsylvania’s example in completely immunizing the press, he would have produced a measure with little or no ambiguity in that respect. The record shows Daniel Webster to have been actively interested in Peck’s trial., lie voted with the majority of the Senate for acquittal. It seems very clear that, as chairman of the Senate committee in charge of the bill, he would not have recommended a measure to be interpreted as going away beyond the position of Peck’s prosecutors, nor would others of the majority have allowed it to pass unchallenged. ■

Men notable in our history, in. both houses, and who were from states whose courts then held, and still have, full common-law powers respecting contempts, interested themselves by vote and speech in favor of Judge Peck. It is unreasonable to claim that they would have been even silent, if this act was intended to put the press out of reach of its provisions, much less to have abetted such a proposition.

We must not forget that Congress, in entitling the measure “An act declaratory of the law concerning contempts,” recognized a law already existing. The act does not confer new powers, nor does it limit powers theretofore actually enjoyed by the federal judiciary. It does not repeal the act of 1789. We loosely say that it limits the power, but the limitation inheres only in the definition which it provides. In declaring what the law is, Congress is but saying what it theretofore had actually been, and that any attempt to exercise the power theretofore had been unlawful, except in cases within some classification made by the act. Coming when it did, it must be taken as an expression of the view of Congress that facts analogous to those in the Peck Case do not constitute contempt as the law was and should be. There is nothing to suggest that the intention was to' include in the limitation a range of misbehaviors relating to an entirely different state of facts, and infinitely more mischievous in their effect to obstruct the administration of justice.

We must assume that, in refusing the suggestion of Draper that it be categorically set out what situations shall not be within the summary power of the court, Congress intended the act to be construed in particular cases to meet particular conditions. Surely, if a great and influential agency for public direction and education, capable, in licentious hands, of directing courts to follow popular passion, were intended to be rendered absolutely immune by this act, the situation demanded that the Legislature should, and we have every reason to insist that it would, have made such intention plain, at least by general language unmistakable in meaning. That it did not, under circumstances, excludes the thought that such was its intention.

The court, in the Poulson opinion, makes against its own conclusions in saying (page 1207 of 19 Fed. Cas.):

“On the trial (of Judge Peck) the law of contempt was elaborately examined by the learned managers of the House of Representatives and the counsel for the judge. It was not controverted that all courts had power to attach any person who should mate a publication concerning a cause during its pendency, and all admitted its illegality when done while (he cause was actually on trial. It had too often been exercised to entertain the slightest deMbt that the courts had power, both by the common la/w and the express terms of the Judiciary Act, § 17 (1 Stat. 83), as declared by the Supreme Court, to protect their suitors by the process of attachment. With this distinct knowledge and recognition of the existing law, it cannot be doubted that the whole subject was within the view of the Legislature'; nor that they ácted most advisedly on the law of contempt.” (Italics ours.)

If we follow the decision, then, we are forced to say that Congress, in declaring what the law is and had been, in intention and in effect worked a revolution of the law, condemned an application that theretofore had been undebatable, and, in compassing this intentional upending of principles which not only federal courts were applying to the satisfaction of everybody, but which no state Legislature at that time had attempted to change except Pennsylvania, language was used requiring strenuous effort at construction in order to get even a glimmer of such a purpose. We submit that upon the whole view it is more probable that Justice Baldwin’s opinion was influenced by the Pennsylvania law, than that Congress was moved by it to work an awkward and obscure imitation.

Finally, to close this part of our opinion, we quote -from, a court whose state early adopted the. federal act to be applied to its own courts. Saying (State v. Galloway, 5 Cold. [45 Tenn.] 326, 330 [98 Am. Dec. 404]) that the local statute was similar to the federal act, Poulson’s Case is thus criticized:

“It is altogether probable that the breadth of expression employed by Judge Baldwin, to declare the immunity of the press, may require limitation, in case the matter published be of a character, and vicinity to the court, so as fairly to bring it within the class prescribed by the Code, which consists in ‘tfte willful misbehavior of a person so near to a court as to obstruct the administration of justice.’ See Poulson’s Case, cited and commented upon in 1 Kent’s Commentaries, 301.”

The comment in Kent’s (second edition) was in a footnote by Chancellor Kent himself, who characterized the law as interpreted by Justice Baldwin, to be unreasonable “in leaving the suitor unprotected at the moment when he stands most in need.” Evidently the Tennessee court agrees with the chancellor.

Judge Jones, in Ex parte McLeod (D. C.) 120 Fed. 130, 137, 138, 139, put the matter very clearly in discussing the act of 1831. He says, with reference to the particular phase now before this court:

“It is questionable, to say the least of it, whether Congress intended to take away from the courts the existing common-law power to punish, as for a contempt, improper efforts, in the guise of published statements or comments, pending the trial of a particular case, to secure judgment therein, in obedience to the dictates of passion or prejudice, or to thrust other ulterior considerations before the tribunal, against which justice and the law seeks to guard judge and jury in the trial and decision of causes. * * *

“As we have seen, the chief purpose of the statute ‘declaratory of the law of contempts of court,’ approved March 2, 1831, which is now codified in section 725 of the Revised Statutes (U. S. Comp. St. 1901, p. 583), was to prevent the punishment, as ior contempt, of what were really only the exercise of free speech and liberty of the press in criticizing judicial officers an«i acts, and chronicling the doings of the courts. * * *

“\Vte cannot, in the absence of words forcing that conclusion, impute any design to Congress, in dealing with an evil exercise of the power, to destroy also the existing right to exert this power for good, in upholding the purity and independence of the courts. The words do not demand such a construe* iion, and to give them effect would deny powers very essential to courts in ‘the administration of justice.’ ”

It is urged that the statute should be construed literally because of its penal character. It should be construed narrowly as defining the limits of a summary power, but the construction should consist with the important function which that summary power serves; it should be given its reasonable intendment. United States v. Antikamnia Co., 231 U. S. 654, 658, 34 Sup. Ct. 222, 58 L. Ed. 419. The fact that it deals with a power inhering in courts independent of the Legislature, one essential to the execution of their duties and the maintenance of their proper authority, is an important factor of construction. The interpretation should not be so narrowed as to emasculate the very function it declares. United States v. Shipp, 203 U. S. 563, 575, 27 Sup. Ct. 165, 51 L. Ed. 319, 8 Ann. Cas. 265. The proper construction, it seems to us, is to leave a power reasonably consistent with a freedom in the courts to consider and determine causes uninfluenced by any agencies except the law and the facts properly brought to their attention.

We are cited to the case of Ex parte Robinson, 19 Wall. 505, 22 L. Ed. 205, and to that part of Judge Fields’ opinion which, paraphrasing the statute, says:

“As thus seen, the power of these courts in the punishment of contempts can only be "exercised to insure order and decorum vn their presence, to secure faithfulness on the part of their officers in their official transactions, and to enforce obedience to their lawful orders, judgments, and processes.” (Italics ours).

In this case Robinson sought to be relieved from an order disbarring him for an alleged contempt. It will be seen that the order did' not result from a finding upon a rule on him to answer to a charge of tampering with a grand jury witness, which was the first charge, but was occasioned by an alleged indignity offered the court directly in its presence. Page 507 of 19 Wall. (22 L. Ed. 205).

The court below did not pass upon the rule at all, nor does Judge Field say anything more (19 Wall, page 511, 22 L. Ed. 205) about the alleged offense of Robinson respecting the witness than that the grand jury’s report does not make a case. The case therefore does not turn upon an interpretation of the statute in this particular before us. The peremptory writ to restore him to the bar was awarded: First, because disbarment cannot be made a punishment for mere contempt; and, second, because the power to disbar can be e'xercised only after notice .has been given and opportunity for defense. When this case is examined and the situation disclosed, it will be seen that there was no occasion for Justice Field to say, “As thus seen, the power of these courts in the punishments of contempts can only be exercised to insure order arid decorum in their presence,” etc., if he meant by that 'that only that misbehavior which operated to a physical interruption, disturbance, or delay in the performance of judicial duty as a court was actually sitting, was within the first classification of the act. 'If this case is to-be 'given the effect claimed for it, we are justified in insisting that, the action of the Supreme Court in refusing review to McCaully (In re McCaully, 198 U. S. 582, 586, 25 Sup. Ct. 805, 49 L. Ed. 1172), to be discussed hereafter, is equivalent to an overruling of Judge Field's holding. Ex parte Robinson has been cited by the Supreme Court in possibly a dozen cases, and at times quoted from, touching its relation to the law of contempts, but in none has the Supreme Court adopted the narrow construction of this first classification of the act given in this excerpt from Justice Field’s opinion.

In Ex parte Wall, 107 U. S. 265, 2 Sup. Ct. 569, 27 L. Ed. 552, in which mandamus was refused to restore to the bar Wall, who had been disbarred for participation in a lynching, Justice Field, in a dissenting opinion, quotes his Robinson decision to the point that the proceeding should have followed the analogy of the law of contempt, and that therefore Wall could not have been disbarred before indictment and conviction for an act which did not take place in the actual presence of a sitting court; but his reasoning was not followed by any associate.

In Sharon v. Hill (C. C.) 24 Fed. 726, Justice Field himself seems to have gotten away from his earlier notion that an interruption of a court’s “order and decorum” was essential to contempt proceedings, for, sitting with Judge Sawyer, in that case, he orally delivered an opinion upon one phase, saying, “Mr. Justice Sawyer will explain for the benefit of counsel the statutes of Congress,” and then heard Judge Sawyer say that the action of Mrs. Hill in threatening a witness with a revolver when, an examination was in progress before a commissioner was a contempt- of the Circuit Court within this first classification.

And the Supreme Court itself has taken issue with Justice Field’s dictum in the Robinson Case in Savin, Petitioner, supra, for there it is held that an effort to corrupt a witness outside of; the courtroom, although in the corridors of the court, under circumstances which had no relationship to a physical interruption of the court proceedings, was within this clause of the act. And a study of its attitude toward the facts in Cuddy, Petitioner, in the same volume (131 U. S. 280, 9 Sup. Ct. 703, 33 L. Ed. 154), suggests that the court in that case, had it been necessary, would have gone as far as did Judge Brown in Re May, supra, to hold that an attempt to corrupt a juror remote from the place of the court’s sitting and at an hour out of court would also be within the section.

In McCaully v. U. S., 25 App. D. C. 404, an attachment against the respondent under that part of section 268 under consideration here, for attempting to corrupt a juror at his place of business one-half mile from the courthouse and two days before the trial of the case in which the juror was to sit, was sustained; the court saying that:

“The question is not one of geography or topography, or propinquity or remoteness, but of direct influence upon the administration of Justice. * * * Bribery of a juror or the intimidation of a witness pollutes the foundations of justice at their source, and reach at once to the very seat and shrine of the administration of justice, whatever be the place where the formal act is done. Under such circumstances, the court is wherever the juror or the witness is, and there is no question of locality in the case.” ■

The jurisdiction of the court in that case, under the statute, was the sharply contested question, and motions for leave to file petition for writs of habeas corpus and certiorari were denied by the Supreme Court. 198 U. S. 582, 586, 25 Sup. Ct. 805, 49 L. Ed. 1172.

We feel that these considerations dispose of In re Robinson, so far as the dictum of Justice Field is attempted to he applied here.

We now come to the case which respondents deem very important, Cuyler v. Atlantic & N. C. R. R. Co. (In re Daniels [C. C.]) 131 Fed. 95, although the facts there are not comparable to the situation here, and we would not say that, upon its facts, it was not correctly decided. The respondent was charged with having criticized severely, after the fact, the appointment of a receiver by the District Court of his state. So far as the opinion seems to be in any way inconsistent with the conclusion we reach here, it is found to be based upon Justice Field’s attempt to limit the operation of the statute in Ex parte Robinson, supra, and upon the Poulson Case. The citations from Kent and Rapalje made by Judge Pritchard depend for their authority upon the Poulson Case alone.

The note from Kent’s Commentaries is but partly quoted. It is wholly based on Justice Baldwin’s decision, and we have elsewhere further considered the note and Chancellor Kent’s view of the Baldwin interpretation. Likewise Rapalje supports his text statement, that the act deprived federal courts “of the common-law power to protect,” by the process. of attachment, “their suitors, witnesses, officers, and themselves, against libels of the press,” concerning a pending trial, by no other authority whatever than Poulson’s Case. See Rapalje, Contempt, p. 72. If therefore we are justified in not following In re Poulson and the dictum of Justice Field in Re Robinson, we may disregard In re Daniels as an authority for the proposition that newspapers are immune under all circumstances.

But the Daniels Case cannot be construed as denying the application of the statute to facts such as appear in the case at bar. Indeed, Judge .Pritchard says (131 Fed. 99):

“There may be instances where the publication of editorials or other matter in newspapers would bring the author within the limitations of the statute. For instance, if a newspaper editor should publish an article concerning a trial which was being considered by a jury, and should send a copy of the paper containing such article to the jury, or a member thereof, during the progress of the trial, for the purpose of influencing them in their deliberations, it would present a question whether such conduct would not be misbehavior in the presence of the court, or so near thereto as to obstruct the administration of justice.”

It is criticism of the judge of a court because of his official conduct, aspersion personal to him and unaffecting a pending matter, and not tending to obstruct the performance of official duty in hand, affecting the administration of justice in general only and indirectly in that court as a mere libel of the judge, which Judge Pritchard very properly decides is not covered by the statute. Such is the plain meaning of the language of the opinion (131 Red. page 98), it was so construed by the author of the first paragraph of the syllabus to the report (131 Red. page 95), and such construction, only, harmonizes with that portion of the opinion we have quoted above.

In the case before us, no interpretation of section 268, Judicial Code, is insisted upon against respondents which is essentially different from that allowed by Judge Pritchard in the foregoing quotation. The immediate possible effect on the administration of justice in a pending case is no clearer in a circumstance such as he imagines, than that obtaining in the circumstances in the instant case. A concession that a publication out of court may be the occasion of summary process under the first clause of the proviso of the section is all that is contended for against the present respondent, so far as the law is concerned.

We are confident that the foregoing considerations, to which, perhaps, we have given too much time, justify us in denominating as mythical and legendary the view that Congress intended complete immunity to the press from summary process under all circumstances.

An eminent judge of this circuit, whose industry and .clarity of thought and expression always' illuminated a subject under his full consideration (Hammond, J., in U. S. v. Anonymous, 21 Fed. 761, 768), expressed the correct view, we think, of the act of 1831, respecting its effect on the press, in saying:

“It is generally understood that the object of that statute * * * was to enlarge the liberty of criticisms by the press and others by curtailing the power to punish adverse comments upon the courts, their officers and proceedings, as contempts which tend to impair respect for the tribunal, and thereby obstruct the administration of justice.”

That is to say, the power is curtailed, not wholly destroyed, so that criticisms which tend to reflect generally upon the court, either by libeling the occupant of the bench, or by criticizing proceedings and processes, but which have no tendency to affect a cause under consideration, are not reached by the statute, although they may, in a' general way, obstruct the administration of justice, particularly through fostering a disrespect for the tribunal. Examination of cases arising under statutory limitations no broader than those of the federal act, and in which respondents were discharged, show that it was precisely this criterion which relieved them. State v. Edwards, 15 S. D. 383, 89 N. W. 1011; In re MacKnight, 11 Mont. 126, 27 Pac. 336, 28 Am. St. Rep. 451; Dunham v. State, 6 Iowa, 245; Storey v. People, 79 Ill. 45, 22 Am. Rep. 158; and other cases. This is undoubtedly the only sound conclusion to be reached after a study of the act, and vindicates alike the liberty of the press and the right of a court to consider any cause before it “free from outside coercion or interference” specially directed to such pending cause.

The only view to be taken of this act consistent with its history, its relation to the accepted law of the time, and with the inherency in every court of a power of protecting its suitors and itself, is that taken by the Supreme Court of Virginia in Carter v. Commonwealth, 96 Va. 791, 32 S. E. 780, 45 L. R. A. 310:

“That although the United States statute’of 1831 carefully enumerates the subjects for which courts may punish summarily for contempt, that enumeration is so comprehensive as to afford complete protection to the courts in the performance of their duties.”

And so Judge Hammond says, in the case cited (21 Fed. 761):

“The courts jvill find that the Legislature has not taken away any valuable power, when these statutes are properly understood. * * * The mere place of the occurrence may not he an absolute test of that question, and it may depend on the character of the particular conduct in other respects beside the place where it happens. * * * Whenever the conduct * * * ceases to be general in its effect, and invades the domain of the court to be specific in its injury, by intimidating, or attemptfng to intimidate, with threat or otherwise, the court or its officers * * * while in the discharge of Iheir duties as such, if it be constructive because of the place whore it happens, because of the direct injury it does in obstructing the workings of the organization, for the administration of justice in that particular case, the power to punish it has not yet been taken away by any statute, however broad its terms may apparently be.”

Following United States v. Anonymous, federal authorities are consistent in applying the principle that the criterion whether a given act is “so near the presence of the court as to obstruct the administration of justice” is not in the physical propinquity of the occurrence to the court, but abides in the degree of approximation the act attains in affecting an immediate duty before the court; that there may be invidious acts or misbehaviors occurring remote from the physical presence of a sitting court, in place or time or both, yet so direct in their tendency to affect the administration of the court’s duties in a pending cause as to be an obstruction thereof, and, consequently, within the statute. It is the quality of obstruction to the administration of justice that measures the propinquity of the act to the court. This was Judge Brown’s idea of the law in Re May, supra; and it must have caused the Supreme Court to refuse a review of McCaully v. United States, supra. Sharon v. Hill, supra; United States v. Patterson (C. C.) 26 Fed. 509; In re Brule (D. C.) 71 Fed. 943; Ex parte McLeod (D. C.) 120 Fed. 130; United States v. Carroll (D. C.) 147 Fed. 947; United States v. Zavelo (C. C.) 177 Fed. 536; Kirk v. United States, 112 C. C. A. 531, 192 Fed. 273; In re Steiner (D. C.) 195 Fed. 299, 303; United States v. Huff (D. C.) 206 Fed. 700.

As the Supreme Court, in the Savin Case, supra, destroyed one of the two reasons given by the court for the Poulson decision, so the authorities just cited, as the facts of the respective cases are examined, unanimously take issue with Justice Baldwin’s other and more important reason, and justify the conclusion we have given in the preceding paragraph. Of these the opinions of Judge Gilbert, for the Eighth Circuit Court of Appeals (Kirk’s Case), and of Judges Jones and Grubb (the McLeod and Huff Cases), cover the ground so completely relative to the proper interpretation to be placed on the provision that the misbehavior must be “so near” to the court’s presence “as to obstruct the administration of justice” that it were supererogation to say more.

We call attention to Judge Gilbert’s language (192 Fed. page 277, 112 C. C. A. page 535) as expressing precisely the view we hold of the statute’s exact purpose respecting newspaper comment, that it was and is “to limit the power of federal courts to punish as for contempt criticisms of judicial decisions or judicial officers.” We hold respondents here for a criticism neither of a judicial decision nor of a judicial officer, but for publications affecting prejudicially proceedings in a pending case. The distinction is plain between an ,ex post facto comment on a decision, or a mere libel of a judge, on the one hand, and, on the other, an effort by publication to affect the consideration of a case pending its decision, or to excite prejudice against an anticipated decision. We agree entirely with Judge Grubb’s theory that no legitimat'e distinction may be drawn, to limit the application of the statute, between that kind of obstruction to the administration of justice, respecting a pending cause, which involves the relation of jurors, witnesses, and examiners to the court, on the one hand, and matters affecting the judge of the court in his relation to the case, on the other.

In the Huff Case the sitting judge received at his house a letter calculated to affect his official action respecting a pending case. If this case is correctly decided, and Judge Grubb’s reasoning is convincing, then newspaper criticism tending to affect the relation of judge and parties to a pending cause must be equally within the statute, for there can be no controlling distinction, to apply the statute in one case and. to avoid it in the other, between a written attack on the judge reaching him in the privacy of his home and one spread broadcast, by the thousands of duplications, under the. eyes of his fellow citizens as well as under his, in his home city wherein his court is held.

The modern law of contempt by publication is precisely that for which we are contending here as applicable to this court and as not abrogated by the statute. Bishop’s New Criminal Law, §§ 259, 260, 261; Bailey, Habeas Corpus, c. 7; Oswald, Contempt, pp. 91, 92, 97; Rapalje, Contempt, § 56; 9 Cyc. 20. No state, except Pennsylvania and Kentucky, in all the years since Peck’s trial, has attempted by legislation to put the press in a class by itself as privileged to interfere with the- administration! of justice in a pending case. No case is reported, except those criticized above, in which newspaper comment tending to embarrass tlie court with reference to a pending cause, and not being a mere libel on the judge, is not held to be punishable summarily as a contempt. Century Digest, Decennial Digest, American Digest, Title, “Contempt.”

We will discuss but a few of the more important cases for the light they afford. The authorities they cite need not be repeated in this opinion. It is obvious that cases which decline to admit the province of a Legislature to limit a court’s power by definition of what shall be considered to be an attachable contempt, such as the important case of State v. Frew, 24 W. Va. 416, 49 Am. Rep. 257, are not valuable as authority, so we consider some of those only which apply statutory provisions.

Oregon and Washington by statute make “disorderly, contemptuous, or insolent behavior toward the judge while holding the court, tending to impair its authority, or to interrupt the due course of a trial or other judicial proceeding” attachable. In each state it is held that publications tending to embarrass the court in the consideration of a case before it are within the operation of this language. State v. Kaiser, 20 Or. 50, 23 Pac. 964, 8 L. R. A. 584 (in which the respondent was relieved only because it was adjudged that he did not publish of a pending cause); State v. Tugwell, 19 Wash. 238, 52 Pac. 1056. 43 L. R. A. 717.

In Iowa the statute provides for summary punishment of “contemptuous or insolent behavior toward such court while engaged in the discharge of a judicial duty which may tend to impair the respect due to its authority.” Under this provision the summary punishment of an editor was sustained for publishing an article ridiculing one of the parties and denouncing the witnesses in a pending trial. Field v. Thornell, 106 Iowa, 7, 75 N. W. 685, 68 Am. St. Rep. 281. The court said:

“The language of the statute does not require us to adopt a construction which will cripple the administration of justice, and deprive parties and the state of the hearing of causes unmolested by extrinsic influences, whether within or without the actual presence of the court. * * * The question arises, then, whether the court may, by contempt proceedings, protect witnesses from denunciation and intimidation by the public press, and the jurors from the influence created thereby. * * * We have discovered no authority denying the power of the court to punish as contempt an act which tends to impede, embarrass, or obstruct it in the discharge of its duties.”

In Nebraska contempt may consist of “any willful attempt to obstruct the proceedings, or hinder the due administration of justice in any suit, proceeding or process pending before the courts.” It is settled in that state that “a publication regarding a cause, during its pen-dency in court, which tends to corrupt or embarrass the administration of justice, and to produce a prejudice in the minds of the public with respect to the merits of a cause,” is punishable within the statutory description. Percival v. State, 45 Neb. 741, 64 N. W. 221, 50 Am. St. Rep. 568; Rosewater v. State, 47 Neb. 630, 66 N. W. 640; State v. Bee Publishing Co., 60 Neb. 282, 83 N. W. 204, 50 L. R. A. 195, 83 Am. St. Rep. 531.

In North Carolina it is provided (section 648, N. C. Statute) that direct contempts shall consist “in disorderly, contemptuous or insolent behavior committed during the sitting of any court of justice, in the immediate view and presence of the court and directly tending to interrupt its proceedings, or to impair the respect due to its authority.” The Supreme Court of the state (Ex parte Schenck, 65 N. C. 368) held that this statute did not restrict the constitutional power of the courts, and, in an elaborate and recent opinion (Ex parte McCown, 139 N. C. 95, 122, 51 S. E. 957, 2 L. R. A. [N. S.] 603) held that an assault upon the judge of the court, at the latter’s boarding place and during the evening recess of the coúrt, was within the statute; this altercation having reference to a case as to which judicial function had not ceased.

We have already referred to the view of the Supreme Court of Tennessee as to the applicability of the statute of that state to a case like this at bar. Georgia also has a statute in imitation of the federal act. In Baker v. State, 82 Ga. 776, 9 S. E. 743, 4 L. R. A. 128, 14 Am. St. Rep. 192, a suitor, whose case was not yet on trial, who in the courtroom, in the presence of several of the venire for the term, five- or seven minutes before court was to convene for the morning, persisted in' discussing his case with the judge, was found to he in contempt within the statute. In Wynn v. City & Suburban Ry., 91 Ga. 344, 17 S. E. 649, it was held in face of the contempt statute, that it was not error for the trial court to say in its charge to the jury in a personal injury case that it proposed to attach for contempt the publisher of a newspaper improperly commenting on the pending case.

We have noted that Ohio has a contempt statute on the lines of the federal act. In Steube v. State, 3 Ohio Cir. Ct. R. 383, 2 O. C. D. 216, the meaning of the words “misbehavior in the presence of the court, or so near thereto,” etc., in the statute (section 5639, R. S.; section 12136, General Code Ohio; Act of 1834) was under specific interpretation. In a case where a stranger to a case on trial had, at recess and at a place five blocks away from the courthouse, assaulted an attorney in the pending case because of his connection therewith, the court held the statute applicable, holding:

“Whatever acts are calculated to impede, embarrass, or obstruct the court in the administration of justice, are considered as done in the presence of the court.”

The McCown, Baker, and Steube Cases are cited to support the departure of the federal courts from the narrow interpretation of the federal act found in Poulson’s and Robinson’s Cases, and have no other importance, not being newspaper cases; but Ohio does furnish a case closely parallel to the instant proceeding. In Hale v. State, 55 Ohio St. 210, 45 N. E. 199, 36 L. R. A. 254, 60 Am. St. Rep. 691, it was held that the act of 1834, now section 12136, G. C. Ohio, could not be regarded as limiting powers inherent in the court of common pleas, as that was a court created by the Constitution; but in Myers v. State, 46 Ohio St. 473, 22 N. E. 43, 15 Am. St. Rep. 638, the court did not consider the statute in any other way than as controlling the common pleas court, and expressly found the publication involved to be within it. The statute (then section 5639, R. S., now section 12136, G. C.) provided summary punishment of “a person guilty of misbehavior in the presence of or so near the court or judge as to obstruct the administration of justice.” Myers had been jointly indicted with another for certain election forgeries, and had been given a separate trial. Pending the trial of his codefendant in the city of Columbus, Myers caused to be published an article in the Cincinnati Inquirer attacking the trial court with reference to the case. The Supreme Court said (46 Ohio St. page 490, 22 N. E. 44, 15 Am. St. Rep. 638):

“The publication came within section 5639, Rev. Stats. * * * It is true that the article was not written, nor was it circulated by the respondent, in the presence of the court. Indeed, it was written in the city of Cincinnati, though dated at Columbus. But the publication was in the courtroom, as well as elsewhere. It was intended to have effect, and did have effect, in the courthouse at Columbus, and the writer was just as much responsible for that effect as though he had in the courtroom itself, and while the trial was progressing, circulated and read aloud the article, or uttered the libeling words verbally.”

It was a fact shown in that case that the paper in question circulated generally in the city of Columbus. The court reasoned that it is because the publication evinced an intention “to insult and intimidate the judge, degrade the court, destroy its power and influence, and thus bring it into contempt; to influence the people against it; to lead them to believe that the trial then being conducted was a farce”; and because it had a tendency, “when read by the judge, to produce irritation, and, to a greater or less extent, render him less capable of exercising a clear and impartial judgment” — that it “tended directly to obstruct the administration of justice in reference to the case on trial,” becoming therefore a contempt of court. The court further said:

“The statute clearly authorizes, as did the common law, courts to punish summarily, as contempt, acts calculated to obstruct their business.”

This case is not only important as construing a statute in terms quite like that controlling this court, but as settling the law of the local jurisdiction within which respondents’ offensive publications were had. It is plain that, had respondents been convicted of criminal contempt of a state court under circumstances such as those before us, they could get no relief from federal authority. Patterson v. Colorado, supra.

Three cases from very respectable state courts may be selected to support, if support is needed, the argument of the Supreme Court of Ohio that offensive publication tend directly to obstruct justice. In People v. Wilson, 64 Ill. 195, 211, 16 Am. Rep. 528, the dictum in Stuart v. People, 3 Scam. (Ill.) 405, under a statute giving a court power “to punish contempts offered by any person to it while sitting,” was approved and the holding followed that:

“In this power would necessarily bo included all acts calculated to impede, embarrass, or obstruct the court in the administration oí justice. Such acts would be considered as done in the presence of the court.”

This case is not reversed by Storey v. People, 79 Ill. 45, 22 Am. Rep. 158, for the latter was decided not only under different state legislation, but dealt with a publication relating to a past court transaction.

In Telegram Newspaper Co. v. Commonwealth, 172 Mass. 294, 52 N. E. 445, 44 L. R. A. 159, 70 Am. St. Rep. 280, it is held that, in a publication which “amounts to a contempt of court because it interferes with the due administration of justice in a cause before the court, the contempt is analogous to a contempt in the presence of the court.”

In State v. Howell, 80 Conn. 668, 69 Atl. 1057, 125 Am. St. Rep. 141, 13 Ann. Cas. 501, the court, in holding that proof is not necessary that the offensive article was read by jurors, said:

“A sentiment favorable or unfavorable to one of the parties to the case may be made to so pervade the community as to reach the courtroom and the triers and interfere with the fair and impartial performance by the latter of their duties.”

Finally, on this subject, State v. Myers was cited with approval by the Supreme Court of the United States in Patterson v. Colorado, supra, to the point made in that opinion (205 U. S. 463, 27 Sup. Ct. 558, 51 L. Ed. 879, 10 Ann. Cas. 689), that:

“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 thejr 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. When a case is finished, courts are subject to the same criticism as other people; but the propriety and necessity of preventing interference with the course of justice by premature statement, argument, or intimidation hardly can be denied.”

Of the cases above considered, Tugwell’s, Rosewater’s (Omaha Bee), Myers’, and Patterson’s were each instances where the misbehavior was alleged to have been with an intent to embarrass and influence the court in the performance of its duty. We are unable to find applicable to the language of the federal statute (section 268, Judicial Code) any reasonable construction which will relieve respondents in this case for the consequences in contempt for improper comment on a pending cause which involved the parties in the several proceedings reviewed.

It is nothing that no federal court in a reported case has ever hitherto so applied the statute. The language of this measure does not exclude its application to newspapers, and one court of appeals in a dictum has suggested that it may be so applied, as we have seen, in Re Daniels (C. C.) 131 Fed. 95, 99. We may employ the language of the Supreme Court of Nebraska (State v. Bee Publishing Co., supra) in partial explanation of the absence of reported federal cases, that:

“Courts have not often called publishers to account for constructive con-tempts, because it has rarely happened that a public journal, wielding any considerable influence, has deliberately employed outlaw methods in attempting to control judicial. action.”

Or that of the Supreme Court of Iowa (Field v. Thornell, supra), that it seldom occurs “that an honorable journalist so far forgets his self-respect as to trespass upon the rights of the judiciary or seek to control or improperly influence its conclusions.”

On this subject, the Supreme Court of Colorado noted (People v. Stapleton, 18 Colo. 568, 33 Pac. 167, 23 L. R. A. 787), with respect to newspaper contempts, that:

“It is a matter of common observation that the courts of this country are reluctant to exercise the extraordinary power vested in them.”

We hope that it will occur to those who may take an interest in the instant case that the fact that an endurance of the News-Bee’s uncommon treatment of the case pending in this court was sustained for nearly six months, before action was taken to call it into question, is some evidence of a reluctance, on the part of this court, to exercise its extraordinary power in contempt.

It needs no argument that this case has all the incidents of a criminal proceeding, and that defendants can be held only after competent evidence with the unequivocal deductions from the facts proven thereby disclose their guilt beyond a reasonable doubt.

The defenses interposed are: (1) A want of jurisdiction to entertain any of the causes or proceedings concerning which the several alleged publications were uttered. (2) that these publications were all within respondents’ privilege as fair and proper comments and accounts of matters of public interest. (3) That none of the publications tended to embarrass the court in any way or to obstruct the administration of justice. (4) A disclaimer of intention to produce any such result.

Want of jurisdiction is asserted to have existed to hear the Doherty Case for any purpose because of the claim that the city was not a proper party thereto, wherefore the issue respecting the ordinance could not be heard and determined by this court. This is that line of defense peculiar to the first count.

In the matter of the second and third counts, it is claimed that the court had no jurisdiction over the Quinlivan proceedings because the latter was sought to be held' under an order bearing the title of the traction case, wherefore no jurisdiction was had to attach either the present respondents or Howard for contempt with reference to the Quinlivan Case nor respondents for comment on Howard’s Case. It is also offered in evidence, but not pleaded, that no affidavit had been filed to support the court’s order citing Howard for contempt.

We do not understand the practice to be settled that the judge of a court needs an affidavit to precede a citation for contempt the facts supporting which are matters of his own personal cognizance. Ex parte Wall, 107 U. S. 265, 2 Sup. Ct. 569, 27 L. Ed. 552.

Respecting the point that the Quinlivan order was in the original equity case by title, counsel seem to misread the case of Gompers v. Buck Stove & Range Co., 221 U. S. 418, 31 Sup. Ct. 492, 55 L. Ed. 797, 34 L. R. A. (N. S.) 874. The proceedings under the Quinlivan order are not brought into the record by respondents, and, of course, it will not be presumed that there were therein any of the fatal weaknesses found by the Supreme Court in the Gompers Case; for we do not understand the court to find the issue of the rule under the title of the equity case to have been a matter so serious as to destroy of itself jurisdiction. Under the authority of In re Kaplan Bros. (Third Circuit Court of Appeals) 213 Fed. 753, 130 C. C. A. 267, which discusses in this particular the Gompers Case, jurisdiction of Quinlivan was not lacking for this reason.

On this defense we are referred then finally to the status of the traction case, and it seems to be respondents’ theory that, if jurisdiction of that case were absent, it was entirely safe for any one to indulge a line of conduct respecting it and proceedings attempted in it which might be unsafe as in contempt if jurisdiction were present. No extensive argument is now necessary upon the question that this court had jurisdicr tion of the traction case. There is nothing in its record to indicate collusion to cast a fraudulent jurisdiction. The plaintiffs were citizens of another state. Their right to insist on the preservation of their debtors’ equity of redemption against confiscatory assaults cannot be doubted. That the enforcement of the ordinance would be to waste the traction company was a triable issue, and that such was a fact the city admitted after a contest. Plaintiffs, as well as the company, had a right to contend that the franchise did not expire at the time when the'city sought to apply its day by day ordinance, and that therefore to enforce the ordinance would be to impair a contract. That the citv could not compel the company to continue its service, whether the latter wished to or not, is a justiciable proposition; likewise, the further insistence that the city could not prevent the company from removing its cars from the streets after the expiration of its franchise. That, even after expiration of a franchise, rights remained in a traction company to use the streets in a reasonable way, subject to reasonable conditions imposed by the city, until the city should summarily direct such use to cease, was decided by the case of City of Detroit v. Detroit United Railway, 172 Mich. 136, 137 N. W 645, and in that particular this case is in no wise affected by the decision of the Supreme Court of the United States, affirming the Supreme Court of Michigan, reported 229 U. S. 39, 33 Sup. Ct. 697, 57 L. Ed. 1056.

One incident affecting jurisdiction counsel overlook: The ordinance did not provide specifically that, as an alternative to the rates of fare, the company should abandon the streets. Had it done so, there would have been no justiciable question, for the measure would have been: self-enforceable, and, however confiscatory and impracticable the rate, within the power of the council .to pass, for, with the power to order the company off altogether, the council might couple with the exercise of that power the alternative of an unreasonable condition for continuing service. There was in the case, then, not the question of what the rate should be, which is a legislative and therefore a nonjusticiable question, but what the condition of use should not be, which is a proper subject for judicial inquiry.

These considerations are sufficient to confer jurisdiction. Cleveland v. Cleveland City Ry. Co., 194 U. S. 517, 24 Sup. Ct. 756, 48 L. Ed. 1102; Blair v. Chicago, 201 U. S. 400, 26 Sup. Ct. 427, 50 L. Ed. 801; Siler v. Louisville & Nashville Railroad, 213 U. S. 175, 29 Sup. Ct. 451, 53 L. Ed. 753; Louisville Trust Co. v Cincinnati, 76 Fed. 296, 22 C. C. A. 334; Carroll v. C. & O. Coal Agency Co., 124 Fed. 305, 61 C. C. A. 49; Pennsylvania Co. v. L. E., B. G. & N. Ry. Co. (C. C.) 146 Fed. 446.

It is entirely clear, however, that, this issue cannot be collaterally raised. Jurisdiction is a judicial question present in every litigated case. Sometimes it is too plain for contention. Where there is doubt, it is to be decided by the exercise of exactly the same judicial functions operative in case of any other legal proposition. It is preposterous that, when it is an actively controverted issue, a newspaper has more liberty with the court on a chance that jurisdiction may finally be found wanting, than it would enjoy if some other legal inquiry were the subject of consideration.

Comment reflecting on a court respecting a case before it is contempt of a different character from that involved in disobedience to an order of court. As to the latter, of course, want of jurisdiction to make the order is a complete defense to attachment for disobedience. In re Sawyer, 124 U S. 200, 8 Sup. Ct. 482, 31 L. Ed. 402. On this subject the Supreme Court of Colorado says, in Cooper v. People, 13 Colo. 337, 378, 22 Pac. 790, 802, 6 L. R. A. 430, 443 (a newspaper contempt case):

“But were wo to concede that, the jurisdiction of the district judge in the premises was doubtful, the position of respondents would not be materially different; for, if substantial doubt on this subject exists, pending the solution of this doubt, in good faith, and in a proper manner, the orders and proceedings of the court or judge are entitled to the same consideration as when no such objection is made. As we have said in another case, days of patient and careful investigation are sometimes necessarily consumed before the want of jurisdiction becomes apparent; and an admission that during this investigation witnesses may decline to testify, interlocutory orders may be disobeyed. and the proceedings may be treated with public contumely, would operate to deprive the court of power to determine the very point of jurisdiction itself.” '

The record of the Doherty Case shows that the. judge gave the question of jurisdiction careful investigation, holding it for consideration until long after the facts had suggested the court’s duty if it were present. We need say no more on this defense. The last word was said by the Supreme Court in United States v. Shipp, 203 U. S. 563, 573, 27 Sup. Ct. 165, 166 (51 L. Ed. 319, 8 Ann. Cas. 265). There it was objected, on grounds similar to those urged here, that respondents could not be held in contempt of the Supreme Court for permitting the lynching of a prisoner whose petition for writ of habeas corpus had been denied by the local federal Circuit Court and who was prosecuting an appeal to the Supreme Court. The court said:

“But even if the Circuit Court had no jurisdiction to entertain Johnson’s petition, and if this court had no jurisdiction of the appeal, this court, and this court alone, could decide that such was the law. It and it alone necessarily had jurisdiction to decide whether the case was properly before it. On that question, at least, it was its duty to permit argument and to take the time required for such consideration as it might need. * * * Until its judgment declining jurisdiction should bo announced, it had authority from the necessity of the case to make orders to preserve the existing conditions and the subject of the petition, just as the state court was bound to refrain from further proceedings until the same time.”

The argument that the publications in question do not tend to obstruct justice proceeds wholly on consideration of each as an isolated act. Much, of course, of the matter pleaded in the information, is entirely beyond criticism, and we conceive that the pleader is not insisting otherwise. Other matters are, at least, disagreeable, and with this quality are of some importance only as light-giving parts of the res gestae. Others are, at least, technical breaches of the paper’s privilege which, if but isolated lapses from proper comment, a court should not hastily take under consideration; but, as parts of a series on the same subject and in the same line of offensive criticism, they severally gain in force. Others still are individuallj’ so strong that each carries its own power for mischief.

The rule is that, when there is no ambiguity in the language, intent to effect what the language tends to effect is presumed against a sworn disclaimer of such intention. Ex parte Nelson, 251 Mo. 63, 157 S. W. 794; In re Chadwick, 109 Mich. 588, 67 N. W. 1071; Fishback v. State, 131 Ind. 304, 30 N. E. 1088. Of course, the question of ambiguity is to be decided by considering the context and, to some extent, the res gestae. Henry v. Ellis, 49 Iowa, 205. Respondents should be held for what appears in their paper of any issue pertinent to the subject under inquiry, and a full understanding of what is said in one place may be attempted by referring to what was elsewhere in the issue said on the same subject, and, if that subject is one discussed by the paper over a period of time, what is said in one issue may have an interpretative effect respecting matters appearing in other issues. A proceeding for newspaper contempt partakes of the incidents of any other action for defamation, and other publications on the same subject before and after the date of that declared on may be offered for interpretation, at least, on the matter of quo animo/as in libel. Post Publishing Co. v. Hallam, 59 Fed. 530, 8 C. C. A. 201 (Sixth Circuit Court of Appeals); Van Derveer v. Sutphin, 5 Ohio St. 293; Larrabee v. Tribune Co., 36 Minn. 141, 30 N. W. 462; Commonwealth, v. Damon, 136 Mass. 441; Enos v. Enos, 135 N. Y. 609, 32 N. E. 123; Thibault v. Sessions, 101 Mich. 279, 59 N. W. 624; Cushing v. Hederman, 117 Iowa, 637, 91 N. W. 940, 94 Am. St. Rep. 320; Bee Publishing Co. v. Shields, 68 Neb. 750, 94 N. W. 1029, 99 N. W. 822.

In a disbarment case in which the question of libel was involved, the Circuit Court of Appeals for the Sixth Circuit (Thatcher v. United States, 212 Fed. 801, 810, 129 C. C. A. 255) says of the claim that the .publication was proper':

“The argument that it is not libelous or is not untruthful depends upon the mistaken view that it cannot be condemned if skilled dialecticians can point out how each sentence or half sentence, standing alone, is not necessarily inconsistent with the facts. It is impossible to, consider such a publication from that standpoint. It was drafted by Mr. Thatcher and his associates, skilled in the nice use of language and in the leaving of pegs whereon they might hang technical justifications; it was prepared and published to be read by and to influence a class of the community not skilled in these things, and which would' take it to. mean what it seemed to mean; and it must be read against its composers with the same meaning which they intended its readers should draw. * * * It cannot be considered as if it had been put before an audience of lawyers who would not be misled by its absurdities, or as if composed by laymen who could be excused by their ignorance.”

Tested by this appropriate rule, no ambiguity attends some of the publications separately considered, and none of those upon which the court makes a finding herein have that infirmity, when treated as respective parts of a series on the same subject, and when the light from circumstances known and commented on by respondents’ paper is given them. The background against which they all stand, and which'develops their force and capacity for mischief, is the excited state of public feeling pictured in the News-Bee’s account of the council meeting of March 23, and the intense public interest in the traction case of which respondent Cochran testified.

.The traction case stood then, March 24, under a handicap involved 'in asking consideration of a question upon which a large part of the community in which the court sat had arrived, assisted by respondents, at so definite and insistent a judgment that any suggestion, even official, of moderation of temper, and any argument seeming to favor the plaintiffs, met-with public objurgation.

That this situation, without more, offered Some embarrassment to the court is quite obvious and could not have escaped as shrewd an observer and as experienced a newspaper man as respondent Cochran, and it is not easy to follow with sympathy his disclaimer that the subsequent publications of his paper, some of which he wrote, had no purpose to add to that embarrassment.

They were surely capable of the mischief attributed to them in the information. It is not material that a definitely formed intention to that end was ever held by respondents, if the utterances were recklessly made or in pursuit of a Journalistic policy seen to be against public policy when persistently followed. However, so far as any interpretation of them respecting intent is necessary beyond their language — and we thinkmone is — aid is had from the two chief witnesses for the defense, respondent Cochran and Managing Editor Howard. The former said that the paper’s policy was to' print all the news under an “implied contract” with its patrons to that end, that he himself wrote, riot for lawyers and dialecticians, but for a “lot of human beings and to make them understand”; that he “wanted to get the punch in there so it would get to them and make them think” and to “keep up the public interest”; that if he had not been writing down to the people, but for lawyers, his “language might have been more ladylike.” He complacently admits that he uses a vernacular which conveys special meanings to the particular class he aspires to lead. Mr. Cochran and, through him, the corporation respondent which gives him responsibility to speak for it, cannot complain if here the rule in Thatcher v. United States is applied, and that their language, profuse use of staring type, and other peculiarities of expression, not forgetting that, with reference to the traction case, perversions, distortions, and prevarications respecting court proceedings are not neglected, are considered in an effort to see what “punch” got to their readers, what thoughts the latter were sought to think, what meanings they were intended by respondents to draw. Mr. Howard testified frankly in line with Mr. Cochran, and further said that the paper endeavored to emphasize, by repetition and otherwise, the salient features of the day’s happenings; and that is his explanation for the triple repetition of the stated purpose of the city solicitor to exceed his official duty in protecting those individuals who should stand upon their assumed rights to- ride for three-cent fare, although the question had been relegated for judicial determination. He admitted that some of the publications were intended to comment upon proceedings had in the pending case, notably the editorial on holding court over the telephone, which, he said, was the paper’s comment on a circumstance which the paper considered to be a vital crisis in the case. It doubtless had not occurred to Mr. Howard that the only possible effect of the court authorizing by. telephone the entrance on the 24th of March of an order of whose tenor the judge was well informed, and which he actually signed on that day and caused to be returned as signed to be filed at the beginning of business on the subsequent day, was to give the city of Toledo a day’s extra notice of the fact that it was to meet the attack of the plaintiffs. No possible prejudice ensued, and, if the time were critical for the city, the court, in the action which was so unfavorably commented upon by respondents, gave it an additional time in which to prepare.

Reluctantly, however, Mr. Cochran was finally forced to admit that •in times of great public excitement, affecting a case pending before a court, a paper is not privileged to print as matter of news a matter which may be seen reasonably to add to that excitement. The justification, however, through a right to print the news, does not exonerate respondents from responsibility here for any of the editorial comments complained of; for no one of them can be considered to be “news.” Assuming, considering the intensity of the situation manifest Tuesday morning, March 24, that it was proper as a matter of news, and, in the same asticle which carried the statement that the court was asked' to pass on the fare question, to announce that the city solicitor would protect any one who chose to exercise his private judgment in the matter — an action which would be manifestly beyond the solicitor’s official .authority — why, if to state a matter of news were the only motive, should this absurdity be mentioned four times and be made the subject of two headlines, and why, in that connection, was it necessary to publish the fact of the mayor’s indorsement ?

Again, if' it were desirable as a matter of .news to state that a mass meeting was proposed for Friday with an anarchistic afterpiece, the most ordinary consideration of the delicate position in which the intensity of public feeling placed the court would, it seems, have forbidden the incendiary extravagances of headlines, repetitions, and sensational treatment which marked, to the point of advertising with the paper’s approval, the announcement of the project to hold a mass ■-meeting Friday night in Memorial Hall “restraining order or no restraining order by the federal court, to test the strength of the three-cent fare all day ordinance.” And, if a public duty were felt to demand, in the same issue which so elaborately advertised this proposed test of the ordinance en masse, that the city increase its professional •representation in the. court lest the “franchise manipulators” get a “strangle hold” on the people by unduly impressing the court with their “high-priced legal talent,” there was no reasonable or respectable call to carry the argument into an unmistakable reflection on the court.

Of course, editorial utterances of a newspaper are voluntary — no ■consideration for a timely presentation of current ■ events constrains the manner of expression of editorial opinion. Hence it may be observed that, if respondents were not committing their paper to the public disorder feared for Friday night, it was with amazingly bad judgment that they chose to say, editorially, on the 26th, that the police would not use their clubs on recalcitrant car riders that night, indorsing in that connection apparently the alleged opinion of Sam Jones that “the law. was only what the people will back up.”

The manner, too, in which news matter is treated in the writing, is, •of course, purely a question of editorial policy. So it is submitted that, if the News-Bee were intending to respect the tribunal to which the question was referred, it was a most unfortunate use of terms to say •of the members of the Central Labor Union in attendance at the Memorial Hall meeting:

“These men may furnish the sinew to see to it that three-cent fares are • .accepted by the conductors.”

This statement was not a matter of news. It was merely an expression of opinion by the writer as to the source from which physical force to accomplish the purposes in question might be derived. It was doubtless a case of “getting in the punch.”

It is seen, then, that to a situation already highly inflamed the issues of the 24th, 25th, and 26th of March of respondents’ paper do nothing less than offer additional fuel: (1) Through an assurance, March 24, made so often and so plainly as not to be overlooked, that he who contributed to the disorder feared for Friday night would be protected by the city’s law officer. (2) By advice, on the 25th, to those of its readers who were disposed, by the announcement of official protection given in the previous issue, to take the law into their own hands, that they will have mob support as the result of a meeting in Memorial Hall called for specific action; “restraining order or no restraining order” from a court whose judge is so temperamentally and mentally uncertain that its decrees, if unpleasant, are entitled to questionable1 respect. (3) By, on the 26th, bracing timorous readers, who hesitate to join the crowd, with the admonition that they may not fear restraint from” peace officers of the city, nor be deterred by lingering respect for law and authority, because, forsooth, the time has come when law is just what public passion, aroused by such publications as these,, deems for the time being should be respected.

No innuendo is needed to suggest the tendency of these publications. They are unambiguous toward an unmistakable addition to the burden of both suitors and court taken on when the motions were filed. The language is not susceptible of two interpretations — it tends in no direction save that charged in the information.

Respondents cannot escape responsibility for the evident tendency of their publications by proof of the truth of their statements. Globe Newspaper Co. v. Commonwealth, 188 Mass. 449, 74 N. E. 682, 3 Ann. Cas. 761. Newspapers have more than the truth to think about; they must consider the effect of stating the truth.

Besides the satirical and reflective comment over “holding court over the telephone,” admitted by Editor Howard to voice the paper’s disapproval of the court, there is another case in which there is an acknowledgment that an intention existed to reflect on the court. After the case for the plaintiffs had been heard, August 14, with testimony that the ordinance was confiscatory, the court, on application of the city, considerately gave it more than three weeks to make its proof in support of the ordinance, adjourning the hearing until September 8th.

On September 5 respondents uttered the satirical editorial note coupling Judge Killits with plaintiff Doherty and classifying the two with one Peter Parker, a former butt of the News-Bee’s satire. Counsel for respondents, in the written argument in support of their demurrer, justify this publication in these words:

“We do not believe that this expression of confidence that the people themselves were able to handle the street railway situation without the assistance of the courts was in any way unwarranted.”

The spirit of this comment is-the keynote of the explanation and interpretation for every publication in question, for it is entirely the spirit of the testimony in this case given by respondent Cochran. It has the same flavor of suggestion that the court, in deigning to permit the traction suit to enter its dockets, was trenching upon the prerogatives of respondents to settle the controversy. We are able to understand now the extravagances of expression, the lurid typographical exaggerations, the misrepresentation of the court in headline after headline, and in text and editorial, the consistently unfriendly attitude against the court. For more than ten years, as they say, respondents have fought the Big Con, and it should not now be that the latter should enjoy the resource of the courts unmolested — respondents, as the self-appointed guardians of the people, had reached a verdict on the traction question which should not be disturbed by the judiciary.

It must be conceded that the headlines of the issues of March 26, August 14, and September 10 convey information at variance 'with that of the news articles which, respectively, follow. It is urged, by way of defense, that each headline should be considered in connection with the enlarged article. March 26, the line, “Killits Üpsets Low Fares,” set in type exactly the size and style of the capital letters of the title to the paper, extending clear across eight columns of the paper, is'the feature of the front page. The body of the article makes it plain that the statement is entirely false, as nothing is there told, nor did anything in fact happen, which tends intelligently to make that headline a truthful statement. The same may be said of the headlining of the other two issues referred to.

But we are told that whatever uncertainty or error abides in this extravagant headlining is corrected by the truthful news account underneath. It is a naive defense that the veracity of an extended news account should be accepted as an antidote to the prevarication in the headlines in large type, from which the paper’s reader gets his first impression of the facts reported and, doubtless, in many instances, his abiding interpretation of the full account which follows. Granting the right to “get the punch” in the writing and to emphasize the “salient features” of the case, respondents are still held to a responsibility to state the truth when they comment on the court’s proceeding in a pending case. -

Of course, if these false headline statements were but isolated offenses, or if they could be referred to mere blundering in “make-up,” the court’s duty to pass them in silence would be obvious; but they accord too clearly with-the entire policy of the paper, they take their places too plainly in the file of consistently invidious comments on the court respecting the pending case, not to be considered as reflecting respondents’ attitude toward the court and the cause. They join the more detailed and elaborate offensive publications to connote an intention to control the issue in the traction case, or, at least, in case the court’s decision does not meet the wishes of respondents, to render it of doubtful value to .the prevailing party.

Undoubtedly, one of them, that which said, August 14,' “Killits Puts Burden on the City,” inspired Quinlivan’s attack on the court. His discussion before the Central Labor Union, September 10, on the proposition to suggest impeachment of Judge Killits in case he decided the traction issue against the city,, was based on the impression he held that the court had “placed the burden of proof of the Schreiber ordinance on the city.” Nowhere else than from the misstatement of fact of the News-Bee could he have obtained such a notion, and this circumstance meets the claim that respondents’ publication did not tend to embarrass the court. It is also worthy of note that this labor union meeting was held on the evening of the issue of the News-Bee containing the headline statement, in letters over half an inch high, “Low-Fares Banned by U. S. Judge,” over an article which told that the court had not yet reached a decision. It was in fact that day announced from the bench, but not published by respondents, although respondents had a transcript of the statements of the court and have introduced that transcript in evidence in this hearing, that the question of jurisdiction to issue an injunction was not yet decided; the city having admitted the fact that the ordinance was confiscatory and consequently void.

We may here note the curious fact that the Socialist thought, as shown in the resolutions which Mr. Howard testifies he edited for publication on September 9, ran in the same verbal channels with that of Editor Cochran. March 27, the latter wrote editorially that the Big Con “is now a trespasser on many of the streets of Toledo”; while, September 6, the Toledo Socialist Local, according to Mr. Cochran’s paper, “adopted a resolution which refers to the street railway company as a trespasser in the streets.” This may be a mere coincidence; but, as in ca.se of Quinlivan’s attack upon the court, it seems more likely to have been inspired by Mr. Cochran’s production.

Newspaper criticism of a party to a pending cause respecting the same has always been considered as misbehavior tending to obstruct the administration of justice, even when unaccompanied by the slightest reflection on the court itself, except in those infrequent jurisdictions wherein the press has been completely immunized. That principle operated solely in some of the cases we have cited, such as Globe Newspaper Co. v. Commonwealth, State v. Howell, and Henry v. Ellis. They proceed on the principle that a court has a paramount duty to protect suitors from anything which will interfere with a fair consideration of their rights. It was this, doubtless, which prompted Chancellor Kent to say that, “in leaving a suitor unprotected at the moment when he stands most in need,” Justice Baldwin’s interpretation of the federal act of 1831 was unreasonable. The court, in Cooper v. People, 13 Colo. 366, 22 Pac. 799 (6 L. R. A. 429), supra, says:

“Parties have a constitutional right to have their causes tried fairly in court, by an impartial tribunal, uninfluenced by newspaper dictation or public clamor.”

It follows that any newspaper comment which tends to make the position of a litigant difficult before the court hampers the efforts of the court to adjudicate the issue fairly and dispassionately. In this light, the News-Bee’s editorials of. March 25, entitled “Municipal Ownership, the Only Way to Street Railway Peace,” and of March 27, “Big Con’s Attitude is" the Same Old Defiance of the People,” and the cartoons, “At the Last Ditch,” and “A Desperate Case,” because each tends unmistakably to deride or denounce plaintiffs in the pending case, with reference thereto, ‘and therefore tends to further inflame public hostility to them, are of themselves instances of behavior which could have no other direction than to render more difficult of performance the duty of this court toward those who rightfully had appealed to its consideration.

It is unnecessary to argue at length that the editorial referring to Quinlivan’s case, of September Id — “would it be contempt to remark' that it is a peculiar situation where the officer who makes the charge also considers the evidence, renders the verdict and imposes the sentence” — was meant to be contemptuous. Its language, form of expression, the typographical prominence — across two columns, in heavy, black-faced type — leave no room for doubt. The repetition, in the news columns of that date, of the statement made on the previous issue-day, that “Killits has announced that he will hear the case himself”— an announcement which, if true, was not important enough for immediate repetition — obviously was to lay a foundation for this editorial and for the Dennie letter, which was also plainly in contempt. Mr. Howard, in receiving the Dennie letter, recognized by editing it that it was offensive, for he testifies that he said to Dennie, after he (Howard) had edited it, “If you will stand for it in this form, I will use it.” These publications tended, without ambiguity, to weaken whatever effect a punishment of Quinlivan after conviction might properly have by way of vindicating the court’s right to an unhampered consideration of the issues submitted to it in the traction case.

The so-called “déclaration of independence,” the two-column, front page editorial of September 17, republished in several issues after a rule had been entered on respondents for uttering it, and which is the basis for the third count of the information, is likewise too plainly an offensive — purposely so — attack on the court respecting a pending case to be within any privilege possible to an orderly imagination. The justification offered in written argument is too grotesque to be regarded as serious. It is, in substance, that, having been accused of an offense, a right inhered in respondents to try the question out first in their paper with sundry reflections on the quality of the tribunal which assumed to entertain the charge. Of course, this defense begs the whole question. It would be just as good if the News-Bee had been sued for libel or its editor indicted by some grand jury. In either of these cases, by the same reasoning, the paper, in advance of the trial, would have the right to berate the other party, lampoon the grand jury, discuss the evidence and abuse the judge of the court. And, as respondents have no greater right to use their newspaper in their own behalf when under charges than in behalf of any other citizen, if their argument is good the paper and its publishers and editors are immune from punishment for any interference with a pending proceeding which they please to offer. If we have come, to this 'pass, the courts may as well ■take permanent vacations and allow all litigabie questions to be settled in editorial sanctums. Mr. Cochran said of this editorial that it was “primarily intended to make the people of Toledo understand that, no matter what happened to me, no matter what any court might do, that it was not going to change the policy of the News-Bee;” that it was written to let his readers know that it was not intended “to let any judge edit the News-Bee or lay down its editorial policy,” that is to say, that the News-Bee will hold its chosen course in defiance of any court; as between the court’s right to undisturbed consideration of issues before it and Mr. Cochran’s “editorial policy,” the latter has precedence under all circumstances. This is insolent egotism becoming rabid.

Instead of criticizing the publications, September 9, of the Socialist resolutions, condemning court interference with the Schreiber ordinance, and, September 11, of the proceedings of the Central Labor Union discussing impeachment if the city should lose the traction case, counsel suggest that respondents should be complimented, because that action operated to relieve these organizations of something which they should “get out of their systems,” and that, by publication, at the end, “they could see what nonsense and foolishness it was.” By precisely the same reasoning, everything respondents themselves said of the court and the suitors before it, however invidious or offensive, could be excused, because that behavior would be but a process of eructation — a relief from some disturbance of respondents’ systems. This defense is more ingenious than impressive. If these utterances were not so clearly in line with respondents’ own original attacks on the court respecting the case, they might be overlooked, perhaps, on the ground suggested. It has already been noticed that both the Socialists and the labor agitator received inspiration for their outbursts from respondents. There is some responsibility on those who administered the poison which disturbed these systems. As it is, the same editorial precaution which suggested editing the Socialist criticism had better have been exercised to their exclusion altogether if respondents would not bear responsibility for them as reflecting the paper’s own views. One who gives currency to defamatory matter is himself liable (25 Cyc. 574; Olmsted v. Brown, 12 Barb. [N. Y.] 657), and newspapers cannot escape on the theory that they are entitled to print the news (25 Cyc. 405), although this court, in matters of contempt, at least, would not incline to apply this principle very rigidly, if the publications were free from the appearance that they served the paper’s “editorial policy” of defamation. In this connection, it should be observed that what is considered reprehensible in the publication of the account of the Quinlivan matter, in the early edition of the News-Bee of September 12, appearing before the entry of the court’s order in the traction case, is not the fact itself that the paper saw fit to print the news and the substance of the charges against Quinlivan, but that, in line with its policy, to emphasize and give prominence to what it considers the impressive things in the items of news, respondents extracted from the news article the threatening and contemptuous language of Quinlivan and presented it with special typographical emphasis.

In our findings hereafter stated we omit some publications which counsel for the government insist are predicates for a charge of contempt. We pass them over principally to give respondents the benefit of every doubt. Unless a publication plainly tends to affect the administration of a pending case, our conception of section 268 requires that it be not considered a misbehavior, no matter how aggravating or unfair it may be. An extreme instance is the editorial of March 31. The motion for a temporary injunction was denied on March 30, with a written opinion, of which the News-Bee was furnished a copy and from which, in its issue of March 31, it published extracts; yet respondents unmistakably perverted the court’s position in their editorial comment. That the court’s position and the paper’s comment thereon may be more clearly considered together, we set out here in parallel a paragraph from the opinion and the editorial:

Opinion.

“That the company may run its cars from day to day without the city’s consent and charge fare because its service is a public necessity, * * * but the city may at any time summarily .deprive the company of the use of the streets except to salvage its property and the company may stop its cars at any time.”

Editorial.

, “To the layman it appears peculiar that the city cannot stop the company’s ears because the public is entitled to the service or requires it, but the company can stop the cars at once .on expiration of its franchise rights regardless of the needs of the people. Reminds us somehow of the elder Vanderbilt.”

The subject in the opinion was but briefly considered, epitomizing the features of the court’s unofficial statement in which, in more detail, it was declared:

“That the company can only operate after the expiration of its franchises at the city’s sufferance, and its right to do so ends abruptly when the city acts through a new franchise or by imposing reasonable terms for a continued day by day use or other by means at the city’s command.”

This statement was published in full in the News-Bee March 26.

It follows, from these facts, that an only possible explanation for the editorial reflection on the court abides either in a willful oversight of the respondents’ own files and documents coupled with an intention to belittle the tribunal, or in the employment of a willful perversion of the truth in a persistent intention to degrade the court. For it there can be no legitimate excuse. Strictly speaking, however, this unjustifiable comment cannot be said to tend to obstruct the administration of justice because it deals with a completed act of the court; wherefore it is within the favor of the decision in 131 Fed. (the Daniels Case), which casé, in our judgment, at the most decides no more than this. In the case before us, however, the publication has an important function as an illuminant of the respondents’ attitude towards the court respecting the traction case generally to exhibit the animus inspiring prior and subsequent publications which the court finds to be contemptuous. Respondents recognize the difficulty of excusing or even explaining this editorial. They deny any intention to reflect on the court, but its cynical tone, aside from its reference to the elder Vanderbilt’s well-advertised views of the public, belies the disclaimer. They acknowledge they had reference to the court’s opinion, but insist that they intended to refer at the same time to the claims put forth by the traction company. They say that, to the extent that it “does not correctly state the decision of the court,- the error was unintentional.” Unfortunately for their defense, the sneer, at the court is based entirely on the misrepresentation, and its tenor harmonizes altogether with that of every other comment made respecting the case.

We agree entirely with the view of the court in Stuart v. People, 3 Scam. (Ill.) 395, which counsel for respondents, are assiduous to call to our attention, to the effect that:

“An honest, independent, and intelligent court will win its way to public confidence, in spite of newspaper paragraphs, however pointed may be their wit or satire, and its dignity will suffer less by passing them by unnoticed, than by arraigning the perpetrators, trying them in a summary way, and punishing- them by the judgment of the offended party.”

This was said in a case where there was a specific’finding of fact that the sole alleged offensive publication had no tendency to obstruct the administration of justice. We would, and in this case did, go further and say that a court ought not to be swift to notice newspaper quips or careless or even untruthful reporting of its proceedings, even if superficially they reflect upon it respecting a pending case. Much better should it overlook such matters and trust to the good sense of the community it serves to secure for it the respect to which it may be entitled. On this principle we might have left unconsidered some other publications for which respondents are now held, had they not been plainly respective parts of a series of offenses.

But a court may carry forbearance so far and depend so long upon the good sense of the public to protect it from the embarrassment of repeated and persistent attacks as to become contemptible for weakness. Especially' would this point be reached when, as here, the attempt to undermine the court is made by appeal after appeal to the selfish interests of the public in the outcome of the case, in which the public is repeatedly told that it is the only party whose rights are entitled to a particle of respect. In this matter the record shows that the court endured the News-Bee’s attacks upon suitors before it and upon the court itself, and carried all the embarrassment inevitable from these publications, for nearly six months before moving to vindicate its independence. If longer patience than that would have been a greater virtue, it surely would have been at the same time a weakness of public service.

The right to freely comment on judicial conduct is not involved in this case. Such a right is unquestioned; just as plain as the corollary that the courts have a right — the people have a right — to expect newspapers to fairly criticize the courts, to argue their criticisms from truthful, not false, premises. Under these fair and honorable circumstances, it is true, as Judge Taft said to the American Bar Association, •of which counsel are at pains to remind us, that “the opportunity freely and publicly to criticize judicial action” is,of vast importance, for one reason that:

“It is tbo only practicable and available instrument in the hands of a free people to keep * * * judges alive to the demands of those they serve.”

One is unable to find, however, in this right, any excuse for hampering the administration of justice by unfair comment on the court and by stirring up hostile sentiment toward the court and suitors therein respecting a pending case.

There is another supreme public interest which the right to freely criticize judicial action is to serve, not to destroy, of which the court, in Cooper v. People, 13 Colo. 377, 22 Pac. 802 (31 L. R. A. 429), supra, speaks:

“Every citizen Ras a profound personal interest in tlie enforcement of tlie fundamental right to have justice administered by the courts, under the protection and forms of law, free from outside coercion or interference. It is doubtful if anything else can be mentioned of greater importance than this right to society and the state; and it is not too much to say that the responsibility of the journalist for its enforcement is, because of the vantage ground he occupies, second only to that of the judge.”

The right to criticize judicial action, of which Judge Taft speaks, is the right to remind courts of their function to determine issues before them free from any external influences of any character, not a right by unjustifiable criticism and comment and palpable appeals to public passion to impose external influences upon the tribunal.

Without affecting the present case, we may adhere, also, to the views announced before a recent meeting of the American Bar Association, which counsel for respondents very carefully call to our attention, wherein the distinguished speaker said:

“May I not ask you gentlemen whether the time is not now ripe for the judges themselves to take greater pains to explain to the public the situation they now occupy; in some way * * * to let the public understand what is going on in the courts, the great purpose of the courts, the great objects to be attained?”

The suggestion is acceptable, truly, but to follow it courts must have an honest medium of communication with the people. Judges may write opinions and file them; thereafter they must trust to the press. That newspaper, however, which maltreats a court, as did the News-Bee of March 31, in founding upon a palpable misrepresentation of this court’s traction opinion of March 30 a sneering reflection on the court’s fairness, and whose headline custom yields so many false impressions as this record shows, is not a very promising medium for a judge’s explanation to the people of the position the court occupies respecting a matter of public interest. In' spite of appearances, we are certain that the sardonic humor in counsel’s reminder of this address was unintentional.

We are unable to accept at its face value the claim in testimony, offered possibly in mitigation, that the offenses complained of were committed in a zealous, self-effacing effort to serve the people. There are not wanting in the atmosphere of this case grounds for suspecting that-the boasted interest in the people was commercial, not unselfish and patriotic; that the “implied contract” to give the people all the news was violated in the publication of manifest untruths and unmistakable reflections on the court and parties before it', not in excessive zeal for the public welfare, but willfully to foster local prejudices, so that the resultant distrust of authority might be coined into dividends; that these equivocations and, at times, downright prevarications, were played as salient features, and cast in extravagant headlines and special box-ings, to stimulate an interest which would increase circulation, give excuse for extra editions, and catch more pennies.

According to Mr. Cochran’s testimony, four municipal elections were carried by candidates supported by the News-Bee and in line with its traction policies, and yet the power to settle the franchise question was never exercised; the issue was always on hand to be the subject for lurid rhetoric and violent invective. It is open to question whether, at least since 1910, with the state law protecting the people through a referendum, the News-Bee’s city hall could not have brought the question to an answer. The city had the exhaustive report of its chosen expert, and the votes in council as shown by the passage of the Schreiber ordinance. It does not strain the imagination to see, in the “Big Con,” the perennially unsettled traction question, and the vogue for three-cent fare, assets for respondent’s business, whose value might greatly diminish, if not entirely vanish, if allowed to be coolly and dispassionately considered in a local court in plain view of an undisturbed community. The intelligence of those connected with the paper is too obvious to permit confidence that they entertain a genuine feeling that any interest the people had in the solution of the question justified editorial conduct which had no other direction than to make it less and less easy for the people to see clearly just what their fair and reasonable interest was. They would not say, of course, that, no matter how cordially the “Big Con” was disliked or whatever the cause of the dislike, the honest people of Toledo desired anything else than fair treatment of it and from it. No one of an honest mind can reasonably deny that each publication in question directly tended to impassion those who relied on the News-Bee for impressions of men and events, and that thus such readers became measurably disqualified from judging what was fairly due either the city or the company, or whether the public’s agents were faithful to their obligations.

Obviously, also, much of the testimony is shrewdly directed to a probable future claim that the court in this case aims to curtail the freedom of the press. Mr. Cochran’s comments on the purpose of his “declaration of independence” leave no doubt here. Emphatically, a free press is an indispensable asset to liberty; but a licentious, unscrupulous press is a liability. Thomas Jefferson, while yet President, wrote to John Norvell that:

“It is a melancholy truth that a suppression of the press could not more completely deprive the nation of its benefits than is done by its abandoned prostitution to falsehood.”

An unreliable newspaper is no friend of the people. Jefferson said of such that a man who never looks in one “is better informed than he who reads them, inasmuch as he who knows nothing is nearer the truth than he whose mind is filled with falsehood and errors.”

The principle this court is applying here is not one which curtails in the slightest the liberty of respondents to publish anything they, please, but it is the salutary doctrine, always recognized and indispensable to good order, that they must respond for a baleful use of that freedom. Robertson v. Baldwin, 165 U. S. 275, 281, 17 Sup. Ct. 326, 41 L. Ed. 715. Nor is there in this case any assertion of a special power in the court over the press. A newspaper is merely a private affair, the activity of persons as amenable to the laws as individuals in other vocations, and the editors of newspapers — mere human beings, too — have no greater privileges than the writers of private letters or the circula-tors of common gossip. The power of a court over a newspaper is the same in quality, no greater and no less, as that affecting any other enterprise. A court is but a public agency — the people themselves in organization for a special purpose — to which newspapers are responsible when in the wrong, as any other human activity. The court, in People v. Stapleton, supra, say:

“Thoughtful citizens know very well that there is far more danger to our institutions, and far more danger to the rights of the people, and especially to the rights of litigants, to be apprehended from the power of the press over the courts, than from the power of the courts over the press.”

The lynching of Johnson at Chattanooga, March 19, 1906, was preceded within four'hours by an inflammatory article in a local newspaper under a “scarehead.” As a result, officers of that city were before the Supreme Court and the whole community was in disgrace. United States v. Shipp, 214 U. S. 386, 29 Sup. Ct. 637, 53 L. Ed. 1041. Recently, Leo Frank’s was a case also where apparently public hysteria, stimulated by hyperbolic newspaper discussion of the charge against him, supplanted due process of law and made-the court holding his life in the balance a contemptible thing, a failure as the administrator of justice.

That Toledo should be disgraced, as other cities have been, by street car riots, on Saturday, March 27, was rendered impossible by the action of the traction company in allowing free rides'. Whether rioting would otherwise have occurred is pure speculation. Members of the city council predicted it. as early as the 23d, and the News-Bee itself says there was “much anxiety” on the subject. It is entirely obvious that its own behavior on March 24, 25, and 26 gave reasonable occasion for anxiety, because it offered the greatest encouragement to those who were disposed to defy law and order to exercise their proclivity when the franchises expired.

As no sophistry avails with intelligent persons to argue out of these publications their, tendency to arouse distrust and dislike of the court, so, equally, no sophistical declamation should be allowed to becloud the issue of this case. It is not to muzzle the press, to “edit the News-Bee,” to create a “fear” of this court, or its judge, to prevent which Mr. Cochran says, in his testimony, was the purpose of his “declaration of independence,” but to define and to insist on the right of this court to transact the business intrusted to it without molestation or the embarrassment of improper influences, whether newspaper suggestion, criticism, intimidation, or what. It is to assert “the right of every litigant to have his case heard free from baneful external influences sought to be executed from selfish or other improper motives.”

This court is dealing here with “palpable acts of journalistic lawlessness, calculated to weaken the independence of the court and destroy confidence in its judgment. To justify them is to deny the supremacy of the law, and assert the doctrine of newspaper absolutism. To admit that publishers may promote their interests in pending litigation by resorting to methods not available to others is to strike down our much-vaunted principle of ‘equality before the law/ and to declare that journalists, who chose to become malefactors, are a privileged class and entitled as such to go unwhipped of justice. But the law recognizes no such distinction. It accords to publishers, says Chancellor Wal-worth, ‘no rights but such as are common to all. They have just the same rights as the rest of the community have, and no more.’ King v. Root, 4 Wend. (N. Y.) 113 [21 Am. Dec. 102].” State v. Bee Pub. Co., supra.

[5-7] It is urged that it is neither averred nor proven that any of the publications involved ever came to the attention of the judge of the court. In our judgment, this is nothing. The question is not,=did the misbehavior embarrass the court or obstruct justice in either of the directions alleged, but whether they were calculated — tended—to such results. It is .not what respondents actually accomplished, but what they intended and tried to do, for which they should be held. Attempts to commit crimes are themselves crimes. Besides, the order for an information, offered and received in evidence without objection, recites that each of the publications were seen by the judge as a daily reader of the News-Bee. In cases of this kind it is competent for the court to take judicial notice of pertinent facts which come within the cognizance of the judge’s senses. Myers v. State, 46 Ohio St. 473, 492, 22 N. E. 43, 15 Am. St. Rep. 638.

Yet the record shows some obstruction of justice referable to respondents’ conduct. In fear of the results of the encouragement to anarchy, of defiance to constituted authority, for Friday night, March 27, which the News-Bee had given in its issues for the three previous days, the traction company allowed free riding, to its great and unjustifiable loss, as clearly appeared when the city admitted the confiscatory character of the ordinance in whose behalf the News-Bee advertised the meeting in Memorial Hall, “restraining order or no restraining order.” The situation, to which respondents’ behavior undoubtedly contributed, impelled the court’s special endeavors to allay public feeling and, to accommodate the public temper, caused it to delay the operation of a just order for three days. The proposition for unlawful action Friday night, which the News-Bee exploited March 25, brought additional work to the administrative officers of the court, of which the paper itself speaks.

After the events, it is safe speculation to say that all of these fears were needless, but at the time, as the paper admits, anxiety existed; whether foolish or not is beside the question^. However that filing may be characterized, respondents’ behavior was a prominent factor in its creation. We need not go beyond the articles from the News-Bee admitted in evidence in this case to learn that the court had its attention turned to some of these things to its annoyance when the issues in the case were under its consideration.

Counsel for respondents ask the court to consider it a virtue in respondents that, Friday, March 27, their paper printed a news article, under the heading, “All Urge Peace in the Car Contest.” This article has as one of its opening paragraphs this:

“With a crisis in Toledo’s 12-year fight for three-cent fare only a few hours ■away and the people aroused as they seldom have been through the long ■years of struggling against the Big Con, all parties to the controversy — company, city and federal court — pleaded on Friday for no rioting or trouble after midnight, when the three-cent all- day ordinance becomes effective.”

This sentence has four propositions, only one of which makes for peace: There is a crisis after “long years of struggling”; the people are thoroughly aroused; although the court has to hear the question, the ordinance' is effective nevertheless at midnight; all parties — three, two of whom have been the object of the News-Bee’s attacks — plead for goad order, save the News-Bee and those whom it essays to lead.

The paper merely states a matter of news, its “editorial policy” for the last three days is not changed. On the contrary, its cartoonist pictures the head of the city’s safety department hastening out of town, thus giving point to the editorial assurance of the day before that the police will not “use their clubs on car riders who refuse to pay more than three-cent car fare after Friday,” and Mr. Cochran breaks out in more two-column wide, large type, editorial “punching,” advising his followers that the Big Con is a “trespasser” which has “rushed into the federal court” to wrest control of the streets from the people; that its attitude is “the same old defiance of the people”; that its past conduct gives no assurance that it will live up to its promises; and that it operates for “the financial gain of foreign bondholders and stockholders.”

Under these circumstances, the amount of credit due respondents for merely printing the news that others than the News-Bee “pleaded ■on Friday for no rioting or trouble” is not very large. The article is noticeable for proof that “the anxiety about trouble,” of which the paper elsewhere speaks, had become somewhat general since Monday night, when councilmen first gave it voice. Mr. Cochran himself seems to have been affected, for he says in testimony:

“I asked the boys — I asked them: ‘There is danger of any trouble here?’ They said: ‘Absolutely none, unless it may be a little scrap on the rear end of a street car.’ ”

Because of this showing, analysis is difficult of the state of mind which, in answer to his counsel’s question as to ground for fearing violence, prompted him to answer: “I don’t know where it came from, but it must have been in Judge Killits’ imagination.”

It is not a task on imagination to see the possibility of numerous scraps on back platformsj with “the people aroused as they seldom have been through the long years of struggling,” if the full Memorial Hall project, so extensively advertised and apparently indorsed by the News-Bee, had been carried out, and some hundreds of men, with Mr. Cochran’s denunciations of “stock gamblers and speculators, trespassers, arrogant franchise manipulators,” seeking a “strangle hold” in the courts on the people, and the impassioned oratory of 15 speakers, stirring their souls, had rushed the cars that night. An experienced ■newspaper man like Mr. Cochran knows something of the psychology ■of a mob, and knows, of course, that one “little scrap” would be an insignificant, casual, individual matter; but a score or more at the same time, and as the sequence of inflammatory appeals, and thus becoming action in concert, would amount to a riot. The publications in the News-Bee unquestionably tended to the production of just such a concert of action. From such a situation to destruction of property, and even loss of life, is but a step, as historical experience shows.

The Quinlivan incident also was thrust upon the court in direct sequence to respondents’ misrepresentation, and, as we have hitherto suggested, the identity of language between the Socialist resolution, edited and published in the News-Bee on September 9th, and its own characterization of the “Big Con” as a suitor in this court, suggests that the Socialist insult to the court was inspired by respondents’ conduct.

We take this occasion to reiterate former expressions of gratitude to counsel that they have apparently assisted this cause to proceed altogether as one affecting the court as an agency of the people, and not at all as a matter of private concern to the individual who, as a part of the court, happens to occupy the bench for the time being. It is power emanating from the Constitution and laws, and, consequently, derived from the people, which this court exercises; therefore, an insult to it, an attempt to belittle or degrade it or to thwart the exercise of its functions, is an affront to the people themselves and in no way a personal matter between the alleged offender and the judge. ()ur conception of section 268 of the Judicial Code agrees thoroughly with that of counsel for respondents, to this extent, at least: Those who would degrade this case to the level of a mere personal controversy between the respondents and the judge of this court do so either through sheer ignorance or through a pitiable incapacity to understand how public service may be impersonally rendered, without which there can be no faithful performance of official functions, or because of willful perversion of facts plain to an honest and open mind. As far as possible, to emphasize the impersonality of this proceeding we have, to counsel’s knowledge, proceeded with utmost deliberation and accommodation to every convenience of respondents, and if in any place there is the slightest failure in respect to any interest of the respondents, it has not been due to any lack of scrupulous endeavor that nothing should be left undone to make a record complete as to any right they should have.

While, of course, after Mr. Cochran’s testimony of his years of continued active interest in the News-Bee as its editor in chief, and his admission that for four years his paper had industriously chronicled the proceedings of this court, we may not accept as reliable his claim that in writing his editorial of March 26 he was merely indulging in reasonable speculation respecting the quality of the court as a factor yet unknown to him, he might, as far as we know, have truthfully said that nothing had theretofore transpired which had established an unfriendly relation between the latter and the News-Bee.

In this connection, it may be observed that all of the publications of the first count were uttered before the court had indicated any view which by the wildest imagination could be considered to be at odds with the News-Bee respecting the 'Schreiber ordinance or as to anything else connected with the traction case. The court was never called upon to decide the controversy that the measure'was confiscatory, for that fact was admitted by the city,' and its admission was not resolved into a court finding until after respondents had uttered all of their publications from March 24 to September 12, inclusive. We are bound therefore to consider that the offenses embraced in the first count were not inspired by any feeling against the judge of the court, but were wholly the fruits of a policy obsessing respondents, which would brook no interference with their self-appointed task to settle the traction question on terms entirely their own.

This court, however, has no right to allow an endeavor to be impersonal to enfeeble its judgment of the character of respondents’ offenses, and, if therefore we seem'to have indulged in strictures of characterization, it is because the crime of respondents is so clear, the tendency of their acts so demoralizing to a state of society which, needing some organization for the settlement of its controversies, needs therewith confidence in its judicial tribunals, that there is no alternative but unequivocal condemnation.

Again, we are not helped to any soft words by any act of respondents since attention was called to their offenses. Mr. Cochran somewhat flippantly says, speaking of both tirades whose authorship he owns, that they were not occasions when he felt that his thoughts should be couched in “very nice, ladylike language,” and the air of his entire testimony is that of one whose attitude towhrd the court and the question of its right to try the traction case free from the News-Bee’s interference is still precisely that which formed' the “editorial policy” responsible for any of the publications we have to consider. It is very plain that he justifies every outrage of his paper, is still under the obsession of an unweakened confidence in his editorial impec- ■ cability, and, with difficulty, entertains a compassionate disdain for any one failing to accord to him, as his privilege, the right to speak the final word upon all questions, even to advising the people what a court should or should not do and to what extent they should respect or obey its decrees. There is nothing apologetic in his manner or disposition. If he disclaims any intention to reflect on the court, it is not born of anythought that he may have overstepped, but seems to be the product of pity for the mind that sees in his acts anything to be criticized. We may also regard the witness Cochran as reflecting the present attitude toward the court of the corporation which still intrusts to him the responsibility of speaking for it, wherefore it would be idle for the court to employ mellow terms in discussing respondents’ offenses.

We have made separate findings of fact adjudging respondents guilty on all three counts and for the publications of March 24, 25, 26, 27, and August 14, September 5, 9, 10, 11, 12, 14, and 17, and we come now to the difficult task of fixing art appropriate penalty. Congress has not seen fit to fix a maximum; but, in the alternative of fine or imprisonment, punishment is left to the sound discretion of the court. The case before us is unique. The books do not afford another where the court, respecting a pending case, was subjected-to a'continual and prolonged bombardment as here. Many reported newspaper cases are extant but the offenses were for single publications, or, at most, three or four; here there are a score and more. In no other case was the court a target for months. Also, but one other case is reported (State v. Bee Pub. Co., supra) where, as here, a newspaper began on the court before the latter had taken any action at all, and in that Bee Case there were not joined, as here, to attacks on the court, efforts to stir up popular opposition to the court’s findings, nor was there misrepresentation of court proceedings. The rule is for the offense to follow some action by the court. For instance, in Myers’ Case an indictment had been found; in Patterson’s, Tugwell’s, and Rosewater’s, respectively, the publications were inspired by partisan resentment at holdings by the court; but here the court had been absolutely voiceless in the subject-matter of the contempt when the News-Bee proceeded editorially to belittle its judge and gave inspiration to those who would defy it. Even after the first expression from the court had been in favor of the issue for which the News-Bee contended, its decision was misstated and the prevarication made the premise for a most deliberate and offensive slur. The incidents of the first count especially precede and disclose an intention to anticipate court action. In the language of another court, the publications “were directed solely to actions to be taken and conclusions arrived at in the future, and it was undertaken by this reprehensible method to prejudice the mind of the public and extort a particular decision in a case then pending for determination.” It is notable that the publications under the second and third counts are substantially challenges to the court. The publications which we condemn are separately contempts, some of them aggravated, and in series they intensify the offensiveness of each other, until, in the aggregate and cumulating their tendency, they call for punishment for which no adequate precedent exists. In connection with the cold-blooded, uninvited character of respondents’ course, a deliberate employment “of outlaw methods in attempting to control judicial action,” we ought not lose sight of the fact that respondents are still recalcitrant, putting before the court a defense which affronts intelligence; for, where it is not puerile, as where jurisdiction to hear the traction case is denied, it is definitely unreasonable, in that it asks for á construction of respondents’ language which contravenes all rules of interpretation and invites the court to concede to the press rights which would make it more than a “Fourth Estate” and would give it power to indirectly control one of the three approved departments of our government.

If there were no other publications for the court to consider than those of the midweek of March, an offense sufficiently serious to warrant a large fine would be present. March 24: The traction company is trying to “evade” its obligations by taking its case into the federal court, but the city solicitor will “protect” any individual who takes the law in his own hands nevertheless. March 25: The judge of the court is an uncertain quantity, liable to be unduly impressed by the “high-priced legal talent” sold to the “Big Con,” and therefore to furnish the latter with a “strangle hold” on the people; but it is planned that the people shall board the cars in large numbers on Friday night after listening to 15 speakers in Memorial Hall, and by aid of “sinew” furnished by union labor compel the conductors to accept three-cent fares, “restraining order or no restraining order by the federal court.” March 26: While the judge of this court is holding “in the balance the case of the rights of 200,000 common people versus the rights of some wealthy investors and 'speculators,” preparations are going forward for the mass meeting in Memorial Hall to be assisted by union labor, and the police will not “use their clubs on car riders who refuse to pay more than three-cent car fare” that night, because the law is “only what the people will back up.” This is preaching, advocating, anarchy. No sophistry of argument, no ingenious theory that the people of this city were interested in the case in the manner of “stockholders of a large corporation” entitled to receive reports of their business, suffice to gloss over the seriousness of this sort of thing, and it would be no less anarchistic if jurisdiction in this court to hear 'the traction case were palpably, unequivocally absent. These are not merely the result of reportorial inefficiency and enthusiasm, for the editor in chief, himself, gave them some personal attention.

For these reasons, a sound discretion calls for the imposition of a substantial fine upon the respondent corporation, and thus in some measure cause to be returned to the public part of the profits made from a circulation stimulated by appeals to selfish individual interests and by encouraging distrust of the faithfulness of public agencies.

The respondent Cochran is also specifically found guilty of criminal contempt, as charged in the information; but, after all, we must consider him as an employé of the real offender, merely an instrument— willing, it is true — of its unlawful conduct, not a principal. In one of his screeds he had something to say of lawyers who sell themselves to the highest bidder. We doubt whether he who sells a facile pen to a corporation that the latter, from the prostitution of his ability, may prosper through exciting prejudices against the country’s institutions, is qualified to cavil on this subject. If he were a principal instead of a mere employé, or were this a second offense, the court’s duty to send him to a jail or workhouse might well be exercised; but here, we think, justice will be secured by making the Toledo Newspaper Company bear the substantial responsibility for the acts of those whom it hires, and by imposing on the servant, Cochran, in this, his first offense toward this court, at least, a fine in a nominal amount, that he may have a final judgment from which to prosecute review.

The Supreme Court, in Re Chiles, 22 Wall. (86 U. S.) 157, 169 (22 L. Ed. 819), has held, under the statute upon contempts which we apply, that, in cases where the end sought is to vindicate the court’s authority, the court must judge for itself the nature and the extent of the punishment with reference to the gravity of the offense. A corporation can be punished only by a fine. The gravity of the offense is certain; there can be no graver public crime than to attempt, in the manner here, to extort from a court a particular decision, or to work to poison the minds of citizens against the only organization which society has yet been able to devise for the settlement of its controversies. The assumed failures of courts to do “substantial and not technical justice” are not to be prevented by attempting to make them subservient to gusts of popular passion, or, through falsely reporting their proceedings, distorting the facts before them for determination and lampooning unpopular suitors, by encouraging a mob spirit toward them.

The discretion which abides in a court to determine what amount of fine will be proper punishment in a given case involves an effort in ascertaining what sum will actually work a penalty under all the circumstances, including the financial condition of the offender; for it is obvious that a small amount might be a greater burden on one offender than many times that sum to another. The consideration here is to vindicate the court’s independence by the imposition of a fine that will mark the importance of the issue as well as to punish. If we could feel that respondents were satisfied of the court’s right to exact respect from them in the premises, and hence that they were finding in the court’s condemnation alone some measure of punishment, the disposition would be to make that fact compensate for a large part of an otherwise proper fine. But this case closes with a feeling that they are as obdurate as ever, have learned nothing since their last publication, and may refrain in future from repeating their offenses only because of probable consequences, and not through a sense of justice to the court.

It is a matter of common knowledge in this community that the respondent corporation is exceedingly prosperous, which fact is also indicated by its statements under the act of August 24, 1912. The financial condition of one under conviction may be looked into, that the court may be advised of what would be a punitive fine, and be enabled to exercise an intelligent discretion. Under the decisions in Hale v. Henkel, 201 U. S. 43, 26 Sup. Ct. 370, 50 L. Ed. 652, and Wilson v. United States, 221 U. S. 361, 31 Sup. Ct. 538, 55 L. Ed. 771, Ann. Cas. 1912D, 558, we may require the corporation to produce its books in an inquiry. We hesitate, however, to exercise this inquisitorial power here, and prefer to act definitely in the light the court already has. It is, accordingly, adjudged that the respondent the Toledo Newspaper Company pay a fine of $7,500 and the costs of this proceeding. A writ of execution is awarded, but the same is stayed until March 15, 1915. On or before that time the respondent corporation may apply to the court for a modification of this sentence, on the ground that it is excessive considering the present financial condition of the corporation and the rate per cent, of its profits on its investment during the months of March to September, inclusive, of 1914. After an inquiry in this behalf, had on such application, a modification of sentence will be made as the facts then exhibited justify. The respondent Cochran is fined $200, and he is ordered to stand committed to the jail of Lucas county, Ohio, until this fine is paid. Execution of the order of commitment is suspended until April 15, 1915, to enable him to perfect a record for a review of the judgment against him, at which time, if proceedings in error have been begun, a further suspension pending review will be graiit-ed. Execution of judgment against respondent corporation will also be granted pending proceedings for review, whether the sentence is modified on its application or not.

NoTR. — Since both the opinion and order in this case were written, we have noted a press report of a decision by the judge of a state court affirming the constitutionality of section 11343 — 2, General Code of Ohio (Act of April 26, 1911, p. 95), providing that the publication of “a fair and impartial” report of certain court proceedings and documents filed therein shall be privileged under certain circumstances. Whether that act does or does not control this court in a case of this character, we have given it application in this case, as will be noted where the opinion deals with the publication by the respondents, September 12, 1914, of the charges against Quinlivan.

On tile presentation of a motion for a new trial, respondents in this case withdrew their complaint as a ground for new trial that the fine against the respondent the Toledo Newspaper Company was excessive.