Cooper v. People Ex Rel. Wyatt , 13 Colo. 337 ( 1889 )

Mr. Justice Hayt

delivered the opinion of the court.

The sentence being for contempt, our right to review the action of the court below is challenged in consequence of the following provision of the statute: “The judgment and orders of the court or judge made in cases of contempt shall be final and conclusive.” Sec. 360, Civil Code 1883. ”

While we cannot place such a construction upon the language of the act as would render the statute meaningless, it would, on the contrary, be absurd to suppose that every order made by a court or judge in cases of contempt would be beyond review and binding, whether the court had jurisdiction or whether it had not. A brief review of the law as it was prior to the adoption of this provision will aid us in determining its meaning. “We shall never know,” said Lord Coke, “the true reason of the interpretation of the statutes, if we know not what the law was before the making of them.”

At common law judgments of superior courts of record in matters of contempt were final, and not revisable in any other court upon appeal or writ of error; but upon habeas corpus the defendant was entitled to be discharged, if in commitment under a sentence absolutely void for the want of jurisdiction in the court rendering the same, lii this country, in the absence of statute, it has been decided that no appeal or writ of error would lie to a judgment for contempt; but it has been held that the remedy by prohibition might be resorted to in case the court was about to exceed its jurisdiction, and also that a judgment in contempt, rendered without jurisdiction, might be set aside upon certiorari; or, if the defendant was in custody upon such judgment, he might be discharged upon, habeas corpus. And by statute in some states the additional remedies by appeal and writ of error have been given. The tendency of the American courts has, however, been to limit the investigation, even upon appeal, to errors of law only, and generally to the jurisdiction of the court. Eap. Contempt, § 149. Thus it will be seen that contempt orders apd judgments are not ordinarily revisable for mere error, but may be set aside for want of jurisdiction of the court over the subject-matter, over the defendant, or to render the particular judgment or order complained of. Rap. Contempt, §141 et seq.; Ex parte Reed, 100 U. S. 13-23; Hayne, New Trials & App. §§ 98-198; 2 Bish. Crim. Law, § 268; Vilas v. Burton, 27 Vt. 56; People v. Kelly, 24 N. Y. 74; Ex parte Adams, 25 Miss. 883; Phillips v. Welch, 12 Nev. 158; State v. Galloway, 5 Cold. 337.

Bishop, hi the section.cited supra, says: “It is not within the plan of this volume to discuss questions of practice; ye£ it may be, observed that the very nature of a contempt compels the court against which it is committed to proceed against it, and, if the court has jurisdiction, precludes any other or superior tribunal from taking cognizance of it, whether directly or on appeal or otherwise. Under peculiar provisions of law, however, in some of the states, and the pressure of modern opinions, the superior courts do in a measure, not fully, correct errors of the inferior ones in this matter.”

In Vilas v. Burton, supra, it is said: “The English courts have always held that proceedings for contempt in one court, where the court has jurisdiction of the subject-matter and of the parties, are not revisable in any other court. * * * And no cases are brought to light where such proceedings in the superior court have ordinarily been held revisable,' unless where the proceedings were so irregular as to be against law, and to give the court no proper jurisdiction.”

Upon an application to discharge a party committed for contempt upon habeas corpus, the supreme-court of New York in People v. Kelly, supra, said: “The question whether the alleged offender really committed the. act charged will be conclusively determined by the order or judgment of the court; and so with equivocal acts, which may be culpable or innocent according to the circumstances; but where the act is necessarily innocent or justifiable, it would be preposterous to hold it a cause of imprisonment.”

In Phillips v. Welch, supra, it was held that the review must be limited to the question of jurisdiction, and that no error of law or fact not jurisdictional in character could be considered; and this is in harmony with the current of decisions in California. In a few cases appeals from contempt judgments have been allowed in that state, but even upon appeal the inquiry has been confined to the question of the jurisdiction of the court entering the judgment. While decisions may be found sanctioning the extension of the review beyond the question of jurisdiction, such decisions have usually been based upon statutory provisions authorizing the extension; and our conclusion from the authorities is that the code provision quoted has no reference to the mode of review, whether by writ of error or otherwise, but that it must be construed as a limitation upon the authority of this court in contempt proceedings to extend its inquiry beyond the question of the jurisdiction of the court below. Hayne, New Trials & App., supra; Ex parte Perkins, 18 Cal. 60; People v. O'Neil, 47 Cal. 109; Roe v. Superior Court, 60 Cal. 93.

When an affidavit is presented as the basis of a proceeding for contempt, the court must, in the first instance, examine the same, and if the facts presented do not show that a contempt has been committed, the court will be without jurisdiction to proceed; but if the facts are sufficient, the court may take jurisdiction, and its subsequent orders will not be- reviewed for mere error. We are not to be understood, however, as saying that a court, after once acquiring jurisdiction, might not so far depart from the forms prescribed bylaw in the subsequent proceedings .as to exceed its jurisdiction, and thus vitiate its judgment. The practice of bringing up for the consideration of this court - contempt proceedings by writ of error from the final judgment has been followed for many years, and we are not now disposed to consider favorably objections thereto. In some instances the facts necessary for the information of the court, to enable it to determine the question of jurisdiction in reference to a particular cause, do not appear upon the record proper, and in such cases the writ of error is peculiarly appropriate. Aside from this there is no authority given this court by statute to require a bond pending a determination of cases upon certiorari, while to enable the defendant to sue out a writ of habeas corpus he must be actually in custody at the time. The remedy by writ of error, however, as we have it, has been found ample to meet all cases, as it furnishes a remedy when either of. the other writs might have been resorted to. These are additional reasons in favor of this mode of review, as in this state no appeal will lie from judgments in contempt cases.. But the review upon the writ cannot be extended further than an inquiry into the jurisdiction of the lower court. People v. District Court, 6 Colo. 534; Teller v. People, 7 Colo. 451; People v. O'Neil, 47 Cal. 109; Romeyn v. Caplis, 17 Mich. 455.

Was the district court justified, under the law, in holding the acts set forth in the affidavit, upon which the contempt proceedings were founded in the present instance, sufficient to constitute a contempt of court? Con-tempts are of two kinds, direct, i. e., such as are committed in the immediate view and presence of the court or judge at chambers; consequential, or, as they are now usually termed, constructive contempts, i. e., such as are committed outside of the view and presence of the court or judge at chambers.

The acts here complained of belong to the latter class, if to either. They consist of the publication in a newspaper, of general circulation in the place where the court was being held, of such articles in reference to a cause pending as were calculated to interfere with the due administration of justice, as it is said. It is admitted that hy the common law such acts were held to constitute a contempt of court; but respondents challenge-the authority of the court, under our constitution and statutes, to punish as for a contempt any publication not made in the presence of the court, whatever be the language used. In support of this position the following cases are cited: Stuart v. People, 3 Scam. 405, 406; People v. Wilson, 64 Ill. 208; Galland v. Galland, 44 Cal. 478; State v. Dunham, 6 Iowa, 245; Ex parte Hickey, 4 Smedes & M. 751; Storey v. People, 79 Ill. 50.

The first four of these cases are cited for the purpose only of showing that statutes such as ours must be treated as a limitation upon -the common-law powers of the court in matters of contempt. And while the opinions are from courts of eminent authority and learning, the doctrine announced is not only contrary to the weight of authority, but the question is stare decisis with us. In the case of Hughes v. People, 5 Colo. 445, it was expressly decided that the statute of this state was not a limitation upon the power of the courts to punish for contempts. This is in accordance with a long line of adjuclicated cases, and. we see no reason to change the conclusion then reached. The decision in the Hughes Case is commented upon and followed in the recent case of State v. Frew, 24 W. Va. 416, where the authorities are collated and reviewed.

While the legislature in this state may increase or diminish the number of judicial districts, the district court itself is created and its jurisdiction fixed by the constitution. By the express letter of that instrument it is given “original jurisdiction of all causes, both at law and in equity.” Art. 6, § 11, Const. The authority of the legislative department of the government to take away the inherent power of such a court to punish for contempts was doubted in Ex parte Robinson, 19 Wall. 505, and expressly denied in the following cases: State v. Morrill, 16 Ark. 403; State v. Frew, supra.

The power of the legislature over the subject is not, however, here in question, as we can find nothing in the statutes which can be considered an attempt to take away such authority from the district courts of this state.

The other two cases cited by counsel for respondents, viz., Ex parte Hickey and Storey v. People, deny the authority of the courts to punish as for a contempt the waiters or publishers of newspapers responsible for articles appearing in the columns of such papers, on account of the constitutional provision- in their respective states guarantying 'the freedom of speech and of the press. Hence, it is argued in this case that the judgment of the court below is contrary to both the spirit and letter of section 10, article 2, of our state constitution: “ That no law shall be passed impairing the freedom of speech; that every person shall be free to speak, write or publish whatever he will on any subject, being responsible for all abuse of that liberty; and that in all suits and prosecutions for libel the truth thereof may be given in evidence, and the jury, under the direction of the court, shall determine the law and the fact.”

In the case of Ex parte Hickey, supra, the alleged contempt consisted in the publication of a certain newspaper article severely censuring the judge of that court for admitting a defendant charged- with murder to bail. It was in reference to an act fully performed, although the trial of the defendant upon the indictment had not yet been called. The publisher, having been sentenced as for a contempt of court, and committed to jail, obtained a writ of habeas corpus from one of the judges of the supreme court. The judge, in discharging the petitioner from custody, used this language: “Our constitution has declared that 4 every citizen may freely speak, write and publish his sentiments on all subjects, being responsible for the abuse of that liberty.’ Art. 1, § 6. The reflections of the petitioner upon the circuit judge of Warren county, as set forth in the petition complained of, when judged by the practice and assumptions of the English and some of the American courts, constitute an undoubted contempt of an aggravated character; but when passed through the crucible of our state constitution, instead of a contempt of court, they become a mere libel on the functionary, and subject only to 'the punishment prescribed by law for the latter offense.”

This was the opinion of a single judge. Afterwards, however, in another case in the same state, the supreme court upon appeal held: “The right of punishing con-tempts by summary conviction is a necessary attribute of judicial power, -inherent in all courts of justice from the very nature of their organization, and essential to their existence and protection, and to the due administration of justice. It is a trust given to the courts, not for themselves, but for the people, whose laws they enforce and whose authority they exercise; and each court has the power for itself finally to adjudicate and punish con-tempts without interference from any other. The right to punish for contempts extends not only to acts which directly and openly insult or resist the powers of the court or the persons of the judges, but to indirect and constructive contempts, which obstruct the process and degrade the authority of the court.” Watson v. Williams, 36 Miss. 331.

In the case of Storey v. People, supra, the language complained of was in reference to acts of the grand jury fully completed, as was expressly declared in the opinion of the court: “We.do not understand the articles as having a tendency directly to impede, embarrass or obstruct the grand jury in the discharge of any of its duties remaining to be discharged after the publications were made. No allusion is made to any matter upon which the members were thereafter to act, and there could therefore, of necessity, be no attempt to interfere with the exercise of their free and unbiased judgments as to such matters.”

The court, however, said, in speaking of a constitutional provision similar to the one we have in this state: “ This language, plain and explicit as it is, cannot be held to have no application to courts, or those by whom they are conducted. The judiciary is elective, and the jurors, although appointed, are, in general, appointed by a board whose members are elected by popular vote. There is therefore the same responsibility, in theory, in the judicial department that exists in the legislative and executive departments to the people, for the diligent and faithful discharge of all duties enjoined on it; and the same necessity exists for- public information with regard to the conduct and character of those intrusted to discharge those duties, in order that the elective franchise shall be intelligibly exercised, as obtains in regard to the other departments .of the government. When it is conceded that the guaranty of this clause of the constitution extends to words spoken'or published in regard to judicial conduct and character, it would seem necessarily to follow that the defendant has the right to make a defense which can only be properly tried by a jury, and which the judge of a court, especially if he is himself the subject of the publication, is unfitted to try.”

Prior to and at the time of the adoption of these constitutional provisions, courts had at common law the undoubted authority to punish summarily, without a trial by jury, both constructive and direct contempts. And it is difficult to see how the provisions in reference to jury trials in suits and prosecutions for libel can be so construed as to either extend this right to contempt proceedings, or to support the argument that, as jury trials are not allowed in matters of qontempt, therefore the constitution takes away the power to punish as for a contempt for matters spoken, written or published beyond the immediate view or presence of the court, although presenting no barrier to summary punishment for direct contempts. No court has ever yet held that the right of trial by jury extends to contempt proceedings, and to thus decide would defeat the very object of the power. So to hold would place it in the power of a vicious person so to conduct himself as to prevent any kind of a trial. As we have seen, the power to punish summarily for contempts is essential to the very existence of courts. Cooley, Const. Lim. p. 390, note 3. And if the framers of our constitution desired either to take away such power or to abridge its exercise, we have no doubt that such intention would have been expressed in language that could not have been misunderstood. Similar constitutional provisions in reference to freedom of speech and of the press exist in almost every state of the Union, and we know of no other state where the court of last resort has arrived at a result similar to that reached by the supreme court of Illinois in the case of Storey v. People, supra. On the other hand, in several of the states a different conclusion has been reached, and the authority of the courts to punish summarily, as for a contempt, parties publishing articles in reference to causes pending, when such publications tend to corrupt or embarrass the administration of justice, has been expressly upheld, notwithstanding the existence of such constitutional provisions. State v. Morrill, supra; Myers v. State, 22 N. E. Rep. 43; State v. Frew, supra; Sturoc’s Case, 18 N. H. 428; 2 Bish. Crim. Law, § 259. In State v. Morrill, supra, the court said: “The counsel for the defense supposed that the power of the courts to punish as for contempt the publications of libels upon their proceedings was cut off by the seventh section of the bill of rights, which is in these words: ‘That printing presses shall be free to every person, and no law shall ever be made to restrain the rights thereof. The free communication of thoughts and opinions is one of the invaluable rights of man, and every citizen may freely speak, write and print on any subject, being responsible for the abuse of that liberty.’ The last clause of the section, ‘being responsible fdr the abuse of that liberty,’ is an answer to the argument of the learned counsel.

It is a well known fact that the bench and the bar have been, in this and all other countries where the law has existed as a distinct profession, the ablest and most zealous advocates of liberal institutions, the freedom of conscience, and the liberty of the press; and none have guarded more watchfully the encroachments of power on the one hand, or deprecated more earnestly tendencies to lawless anarchy and licentiousness on the other. The freedom of the press, therefore, has nothing to fear from the bench in this state. No attempt has ever been made, and we may venture to say never will be, to 'in-, terfere with its legitimate province on the part of the judiciary by the exercise of the power to punish con-tempts. The object of the clause in the bill of rights above quoted is known to every well-informed man. Although the press is now almost as free in England as it is in this country, yet the time was, in bygone ages, when the ministers of the crown possessed the power to lay their hand upon it and hush its voice when deemed necessary to subserve political purposes. A similar clause has been inserted in all the American constitutions to guard the press against the trammels of political power, and secure to the whole people a full and free discussion f public affairs.”

The latest decision that we have been able to find upon the subject is from the supreme court of the state of Ohio in the case of Myers v. State, supra (1889). The facts in the case were in some respects similar to those in the case at bar. The plaintiff in error, Myers, a newspaper correspondent, having been indicted by the grand jury,-wrote and caused to be published in a Cincinnati daily paper, having a general circulation in the place where the court was being held, and while the case was still pending, an article charging that the grand jury finding the indictment was called by the presiding judge “for a special partisan purpose,” and “never honestly drawn from the box;” that the grand jury was packed by the presiding judge, co-operating with the clerk, and that the writer had been by this method indicted “by rascally and infamous methods;” and the court said:

“ The article was a libel upon the presiding judge, but that alone did not form the basis of the information. The intention of the publication was to insult and intimidate the judge, degrade the court, destroy its power and influence, and thus to bring it into contempt; to inflame the prejudices of the people against it; to lead them to believe that the trial then being conducted was a farce and a,n outrage, which had its foundation in fraud and wrong on the part of the judge and other officers of the court, and, if communicated to the jury, to prejudice their minds and thus prevent a fair and impartial trial. Besides, the tendency was, 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. It therefore tended directly to obstruct the administration of justice in reference to the case on trial, and its publication was a contempt of coiirt. The fact that, before its publication, a professional opinion was given that the publication would not be a contempt, does not change the essential character of the defamatory article, nor relieve the respondent of responsibility for its origin and dissemination.”

In State v. Frew, supra (1884), the defendants were punished as for a contempt of court for the publication of a libel upon the court and judges; the publication having been made in the city where the supreme court was sitting, and in reference to a cause then pending and undetermined in said court. The court, after a careful review and analysis of the authorities, said: “In every aspect of the case the publication is clearly a contempt of this court. Oan such a publication be palliated or excused? Par be it from us to take away the liberty of the press, or in the slightest degree to interfere with its rights. The good of society and of government demands that the largest liberty should be accorded the press, which is a power and an engine of great good; but the press itself will not for a moment tolerate such licentiousness as is exhibited in said editorial. The press is interested in the purity of the courts, and, if it had no respect for the judges on the bench, it should respect the court; for when the judges now on the bench shall be remembered only in the decisions they have rendered the court will still remain. It never dies. It is the people’s court; and the press, as the champion of the people’s lights, is interested in preserving the respect due to the court.”

At the time these decisions were rendered both Ohio and West Virginia had constitutional provisions similar to the provision of the Colorado constitution quoted, and in the Ohio case it does not appear that the provision was ever considered by court or counsel as forming any barrier to the punishment as for a contempt, while in the West Virginia case it was expressly determined that the conviction, and punishment were in accordance with the constitution of that state. Judge Cooley, in speaking of these constitutional provisions, says: “ We understand liberty of speech and of the press to imply not only liberty to publish, but complete immunity from legal censure and punishment for the publication, so long as it is not harmful in its character, when tested by such standards as the law affords. For these standards we must look to the common-law rules which were enforced when the constitutional guaranties were established, and in reference to which they have been adopted.” Cooley, Const. Lim. ’”'422. Turning to Blackstone as an authority as to what acts constituted constructive contempt at common law, we find among those, enumerated the following: “By speaking or writing contemptuously of the court or judges," acting in their judicial capacity; by printing false accounts (or even true ones without proper permission) of causes then depending in judgment; and by anything, in short, that demonstrates a gross want of that regard and respect which, when once courts of justice are deprived of, their authority (so necessary for the good order of the kingdom) is entirely lost among the people.” 4 Bl. Comm. *285.

We quote this paragraph from Blackstone only for the purpose, of showing the extent to which the summary punishment for contempt may be extended without infringing upon the constitutional guaranties of freedom of speech and of the press as defined by Judge Cooley; but it must not for this reason be understood that we claim the power of the courts to punish as for contempts is now as indefinitely broad as stated by Blackstone. However, upon principle and authority, we must hold that at common law superior courts of record have the inherent power summarily to convict and punish as for a contempt of court those responsible for articles published in reference to a cause pending, when such articles are calculated to interfere with the due administration of justice; and that neither the. statutes of this state nor the constitutional provisions quoted present any barrier to the exercise of such powers by the district courts of the state, but that such power is inherent in those courts.

In the articles set forth in the affidavit in the case upon which the contempt proceedings are based, it is charged that the petitioner, “Johnny Wyatt, swore to a gauzy fiction.” The judge of the court in issuing the writ of habeas corpus is referred to as “the tool,” and charged with stepping outside of legal precedent “ to keep precious Johnny out of jail for two or three days;” and in various subdivisions of the same article such phrases as “Back to jail, Johnny,” “A judicial outrage,” etc., are made conspicuous, and the judge is threatened with political punishment for a preliminary judicial act taken by him in the cause, in this language: “Judge Thomas B. Stuart of the district court dug his official grave both wide and deep when he issued a writ of habeas corpus on Thursday night for the liberation of Deputy Secretary of State Wyatt from the jail of Arapahoe county.” And it is also said: “Nor can he hope to escape the suspicion that the supposed political pull of the gang, of which Deputy Wyatt is such a prominent member, had some weight in procuring this writ. ” And a demand is made upon Judge Stone of the criminal court to “take summary action to the fullest extent of his jurisdiction to send Mri Wyatt back to jail.”

In the issue of July 14th the following appears: “If the Republican was guilty of contempt yesterday morning, it is still more in contempt this morning, for we not only do not take back a word we have already said in this matter, but repeat it all with emphasis. Judge Stuart committed a gross outrage when he let Wyatt out on bail, and he had neither authority nor excuse of a creditable kind for interfering in the case at all.” It is further charged that Judge Stuart’s associates, “Judge Allen and Judge Liddell, refused positively to issue the writ,” the falsity of which charge is set forth in Wyatt’s petition, and no issue taken thereon by respondents in their answer. And not less objectionable than these articles is the cartoon entitled “The Tug of War — The People against the Gang.”

There can be no doubt that the tendency of the articles and cartoon exhibited in this affidavit, responsibility for which plaintiffs in error admit by their answer, was to prejudice the public as to the merits of a cause then pending and undisposed of; to degrade the court and judge before whom the same was pending; and to impede, 'embarrass and defeat the administration of justice in reference thereto. In these articles the petitioner, Wyatt, is charged with perjury; grave reflections are cast upon the court and upon the judge thereof, and the whole tendency of the language employed was to inflame the popular mind against both the petitioner and the judge, for the evident purpose of coercing the latter into sending the former “back to jail.”

Parties have a constitutional right to have their causes tried fairly in court, by an impartial tribunal, uninfluenced by newspaper dictation or popular- clamor. What would become of this right if the press may use language in reference to a pending cause calculated to intimidate or unduly influence and control judicial action? Days, and sometimes weeks, are spent in the endeavor to secure an impartial jury for the trial of a case; and, when selected, it is incumbent upon the court to exercise the utmost care in excluding evidence of matters foreign to the issues involved, so that the minds of the jurors may not perchance be unduly biased or prejudiced in reference either to the litigants or to the matters upon trial. But if an editor, a litigant, or those in sympathy with him, should be permitted, through the medium of the press, by promises or threats, invective, sarcasm or denunciation, to influence the result of the trial, all the care taken in the selection of the jury, as well as the precaution used to confine their attention at the trial solely to the issues involved, will have been expended in vain.

"We would not for a moment sanction any contraction of the freedom of the press. Universal experience has shown that such freedom'is necessary to the perpetuation of our system of government in its integrity; but this freedom does not license unrestrained scandal. By a subsequent clause of the same sentence of our state constitution in which the liberty is guarantied, the responsibility for its abuse is fixed. With us the judiciary is elective, and every citizen may fully and freely discuss the fitness or unfitness of all candidates for the positions to which they’ aspire; criticise freely all decisions rendered, and by legitimate argument establish their soundness or unsoundness; comment on the fidelity or infidelity with which judicial officers discharge their duties,— but the right to attempt, by wanton defamation, to prejudice the rights of litigants in a pending. cause, degrade the tribunal, and impede, embarrass or corrupt that due administration of justice which is so essential to good government, cannot be sanctioned. 2 Bish. Crim. Law (7th ed.), § 259.

It was said in argument by counsel for respondents “ that by the common law every judge was regarded as the direct representative of the sovereign, and upon this fiction the power to punish for contempt was based.” With us the people have been substituted for the crown. The courts are created by the people, and are dependent upon the popular will for a continuation of the powers granted. They are the people’s courts, and contemptuous conduct- towards the judges in the discharge of their official duties, tending to defeat the due administration of justice, is more than an offense against the person of the judge,— it is an offense against the people’s court, the dignity of which the judge should protect, however willing he may be to forego the private injury.

It has been urged in argument that Judge Stuart had no jurisdiction in the habeas corpus proceedings to release Wyatt from arrest under the warrant of commitment from the criminal court. We deem it sufficient for the present to say that, the proceedings in the habeas corpus case not having been made a part of this record, we have no means of determining, except by legal presumption, the question of such jurisdiction. The record before us does not disclose for what offense Wyatt had been imprisoned by the criminal court; hence we express no opinion upon the action of Judge Stuart in the premises. By statute, the district courts of this state, and the judges thereof, are expressly given general jurisdiction in habeas 'corpus cases, i. e., the power to issue the writ is given generally; and if there were facts set forth in the petition upon which Judge Stuart issued the writ affirmatively showing that he had no jurisdiction in the particular case, and respondents desired to take advantage of this, they should have incorporated such petition in this record. This has not been done.

In the absence of such showing, the jurisdiction of the district judge to issue the writ in the particular case must be presumed. Gen. St. § 1609; People v. District Court, supra; Railroad v. Nicholls, 8 Colo. 188. The judgment is accordingly affirmed.

Affirmed.