State Ex Rel. Hall v. Niewoehner , 116 Mont. 437 ( 1944 )

This is a contempt proceeding.

Respondent, George Niewoehner, is an attorney at law admitted and licensed by this court to practice before it.

On Saturday, October 7, 1944, respondent came to the office of the clerk of this court and there delivered for filing and presentation to the court a typewritten motion. He also left with the clerk five copies of such motion. The motion reads:

"In the Supreme Court of the State of Montana.

"In Re the minutes of the Supreme Court

"Motion for an Order Directing that the Minutes and Records of the Supreme Court of the State of Montana be Purged of Misleading Entries and Made Whole.

"Comes now George Niewoehner, Esq., as an officer of the above entitled Court, and in support of his motion to be presently made represents and alleges:

"That on or before July 7, 1941, Mr. Justice Leif Erickson abandoned his duties and prerogatives as Justice of the Supreme Court of the State of Montana, and thereupon accepted employment as a referee for the National Railroad Adjustment Board, all in violation of his oath of office, and in breach of his trust to the people;

"That Mr. Leif Erickson did continue such abandonment and neglect until and including September 8, 1941;

"That on or before May 12, 1943, Mr. acting Justice Leif Erickson did again abandon his duties and prerogatives as Justice of the Supreme Court of the State of Montana, and thereupon again accepted employment as a referee for the National Railroad Adjustment Board, all in violation of the Montana Constitution, in violation of his oath of office, and in breach of his trust to the people;

"That Mr. Leif Erickson did continue such abandonment and neglect until and including June 6, 1943;

"That on or before July 15, 1943, Mr. acting Justice Leif Erickson did still again abandon his duties and prerogatives as Justice of the Supreme Court of the State of Montana, and thereupon did still again accept employment as a referee for the National Railroad Adjustment Board, all in violation of the Montana Constitution, in violation of his oath of office, and in breach of his trust to the people;

"That Mr. Leif Erickson did continue such abandonment and neglect until and including September 11, 1943;

"That Mr. Leif Erickson thus served the National Railroad Adjustment Board, in violation of the Montana Constitution, in violation of his oath of office, and in neglect of his duties to the people of Montana, for the following periods:

"July 7, 1941, to September 8, 1941, inclusive, a period of sixty-four (64) consecutive days,

"May 12, 1943, to June 6, 1943, inclusive, a period of twenty-six (26) consecutive days,

"July 15, 1943, to September 11, 1943, a period of fifty-nine (59) consecutive days, which all told made a total time in service for the National Railroad Adjustment Board of one hundred forty-seven (147) days;

"That for his services as referee for the National Railroad Adjustment Board, Mr. Leif Erickson was paid the sum of Seven Thousand Three Hundred Seventy-five Dollars ($7,375.00) at the rate of Fifty Dollars ($50.00) per day, and did receive expenses and per diem in the amount of One Thousand Two Hundred Sixty-seven Dollars ($1,267.00), making a total payment of Eight Thousand Six Hundred Forty-two Dollars ($8,642.00) received for one hundred forty-seven (147) days of unlawful and unconstitutional employment outside his duties as Justice of this Court;

"That Mr. Leif Erickson did let, and still lets, the Minutes of this Court indicate that he served the people of Montana during these one hundred forty-seven (147) days, and that he has made statements under oath to support salary claims against the State Treasurer of the State of Montana covering these identical days;

"That in addition to the Eight Thousand Six Hundred Forty-two Dollars ($8,642.00) he received for employment outside this state, Mr. Leif Erickson has drawn his full salary as Justice from the State of Montana for the same one hundred forty-seven (147) days at the date of Seven Thousand Five Hundred Dollars ($7,500.00) a year;

"That as a result of the facts alleged hereinabove the said Mr. Leif Erickson has in fact and in truth neglected his duties as a Justice since July 7, 1941, and has much of the time been absent earning wages for himself at the rate of Fifty Dollars ($50.00) per day, together with expenses and per diem, when the Supreme Court was in session;

"That as a result of said facts Mr. Leif Erickson has not been a de jure justice of the Supreme Court since the year 1941;

"That despite the aforesaid facts, many of them known to other Justices of this Court, the Minutes of this Court have continued to indicate the said Leif Erickson as being present when he was in fact absent;

"That the official records of the cases decided by the Supreme Court, and the official printed reports of those decisions, make it appear that in many of these cases and decisions Mr. Leif Erickson properly participated by exercising the judicial discretion vested in him by the people of the State of Montana when in fact and in truth Mr. Leif Erickson did not so properly participate and exercise his discretion in those cases and decisions;

"That as they now stand the Minutes of the Supreme Court of the State of Montana are misleading and are not a true representation of the conduct of Mr. Leif Erickson as a Justice of the Supreme Court of the State of Montana, making it impossible for the people of Montana to ascertain the true fashion in which the business of their Supreme Court has been conducted;

"That the matters and things alleged hereinabove are calculated to destroy the integrity and dignity of the Supreme Court of the State of Montana, and that the Constitutional rights and guarantees of the people of Montana are thereby imminently jeopardized;

"That your petitioner being an officer of the Supreme Court, it is his duty to endeavor to have the Minutes of the Supreme Court rectified;

"Now, therefore, I move the Supreme Court for an order directing that the Minutes and records be purged of all those entries which make it appear that Mr. Leif Erickson was present in Court when in fact he was not, or which make it appear that Mr. Leif Erickson was properly participating in the decisions of the Court when in fact he was not, and directing that the Minutes and records be made to show that Mr. Leif Erickson was absent from Court when he was in fact absent, and be made to show that Mr. Leif Erickson did not participate in those cases and decisions in which he in fact did not properly participate by exercising the judicial discretion vested in him by the people of the State of Montana.

"George Neiwoehner"

Upon receiving the motion the clerk promptly presented it to the Chief Justice together with the five copies for the use of the Justices, subdivision 3 of Rule XI of the published rules of this court providing that, "Unless otherwise ordered, a motion will be considered and disposed of without oral argument."

On Monday, October 9, 1944, being the next business day, the respondent mailed to all the members of the bar of this state a mimeographed copy of the motion together with a letter signed by him. The letter reads:

"George Niewoehner "Lawyer "White Sulphur Springs, Montana "October 9, 1944

"Dear Sir:

"When you have finished reading this letter you may throw it away and dismiss the whole affair from your mind, if you wish. What you think of my experiences is none of my business.

"In three sentences I am going to tell you why I have taken the trouble to send this mimeographed letter to every lawyer in the state. The people of Montana, including the lawyers, have the right to have the records of the Supreme Court show what business is transacted by the Supreme Court, how and when the business is transacted, and what Justices participate. Despite this right, I believe that the Minutes do not show how the Supreme Court took care of a certain matter entitled ``In Re the Minutes of the Supreme Court.' Therefore I am going to give you the facts, with no comment whatsoever — draw your own conclusions.

"Just before noon on Thursday, October 5th, I called the Marshal of the Supreme Court, told him I would have an ex parte matter to be heard at 10:00 A.M. on Saturday, October 7th, and asked him to notify the Justices and have them on the Bench at that time. I did not give him any information as to the nature of the case. He said he would do as requested. Early that afternoon the Marshal advised me he had notified Justices Johnson, Anderson, Morris and Adair, and that those Justices said they would be present.

"Then I went to the Court's noticing board upon which matters to be heard are noticed, and there was a notice on the board that there would be a matter at 10:00 A.M. on Saturday. My name appeared in the notice thus: ``(Niewoehner)'.

"On Saturday, October 7th, I was waiting at the office of the Clerk of the Supreme Court at ten minutes to 9:00 A.M. when the Clerk arrived. I asked the Clerk to file a Motion, gave him the Motion and five copies thereof, and gave him a ten dollar bill for the filing fee. A copy of the Motion is enclosed herewith.

"Thereupon the Clerk said he would not file any papers I might have, that he would transmit the Motion to the Justices, and that I would be advised as to what the Court would do.

"I waited, ready, until and after 10:00 A.M. The Justices did not take the Bench.

"At about five minutes after 10:00 A.M. the Clerk took me into his office, told me I would not be heard, and told me that the Court would notify me as to what it would do at some indefinite time in the future. The Clerk returned my ten dollars.

"Thereafter, I looked again at the bulletin board, and the notice of the hearing which I was to have had was still there.

"Thereafter I looked at the Minutes of the Court. There was no entry covering this item of business.

"Yours very truly,

"Enc. copy of motion. George Niewoehner"

On October 14, 1944, H.C. Hall, Esq., an attorney at law and officer of this court, presented to the court an affidavit charging, among other things, that the respondent did the aforesaid acts and thereby committed contempt of this court.

The accusatory affidavit was filed and, upon order made, citation was issued and served on respondent requiring him to show cause, on a day certain, why he should not be adjudged in contempt and punished accordingly.

Motion to Disqualify Justices. On October 25, 1944,[1] respondent appeared by his attorneys and filed herein a motion for an order to disqualify four of the five Justices of this court, or, in the alternative, for an order disqualifying herein the Chief Justice and Associate Justice Erickson.

The ground urged for the disqualification of the four Justices was that they are alleged to have prejudged the matter in that on October 14, 1944, they joined in making an order for the issuance of citation wherein is recited the alleged conduct of respondent of which complaint is here made. In State ex rel. Short v.Owens, 125 Okla. 66, 256 P. 704, 708, 52 A.L.R. 1270, the court overruled a like motion made by respondent therein, saying: "While * * * he contends that the challenged Justices informed against and are prosecuting him in this action and it is true the rule to show cause and the action was begun at the instance of this court, surely respondent does not have the temerity to assert that in the proper case the court against which a contempt is committed is without power to act, and, having moved to bring the matter to trial, is therefore disqualified. Such is not and never has been the law."

It is also manifest that the order for the issuance of a citation for contempt is no more a prejudgment or a conviction than the order for an alternative writ, or an order made by a district judge during the course of a trial directing the county attorney to file an information against a witness for perjury. (33 C.J. 1009, 1010, sec. 167.)

The alternative of the motion was that Chief Justice Johnson[2] and Associate Justice Erickson were disqualified because they had both served as referees with the National Railroad Adjustment Board and had a personal interest in the determination of the question as to the propriety or legality of such service. As noted below, that question was not an issue in either the motion to amend records, or in this proceeding, although it would seem that respondent's purpose throughout has been calculated to give that public impression. Manifestly the question cannot be adjudicated in this case and no member of the court is disqualified by his possible interest in the question.

Respondent's original motion contains lengthy allegations as to the service of Mr. Justice Erickson as a referee with the board. It sets out the daily compensation paid him for this service. It contains a statement as to the total amount paid him, including even his railroad fare. It charges that such service by him was in violation of the Constitution of Montana, but it asks no order of the Court based upon these charges or any of the other allegations set forth above. The motion does not seek any ruling that service by a Justice of the Montana Supreme Court at the call of the federal government as an arbiter in labor disputes violates the Montana Constitution. It does not ask that a forfeiture of his office be worked. The motion does not seek the recovery of any monies from Mr. Justice Erickson. Under its allegations not only is it impossible to determine any of these questions in which Mr. Justice Erickson might have such a personal interest as to disqualify him, but the motion does not ask for the determination of them. The only ostensible purpose of the motion is to seek a correction of the minutes and records of the Court. The relief that could be granted or denied on this motion affects the clerk of the court and the court itself and not any of the Justices, and this is true of Justices Erickson and Johnson as well as of the other three members of the court.

It was also contended that the two Justices in question were [3, 4] disqualified because respondent had summoned them as witnesses on his behalf to testify concerning Associate Justice Erickson's absences and concerning his service and payment as a referee during those absences and concerning the manner of preparing and signing the minutes, records and decisions of the Court. As noted, the Justice's service or payment as a referee was not an issue in the case, and since the minutes and records did not indicate that the member was present when he was alleged to have been absent it was not material to the issues whether he was actually absent or not, or in what manner the minutes, records and decisions of the court were prepared and signed. Where the calling of a judge as a witness is relied upon for his disqualification in proper cases, the materiality and the necessity for his testimony must be shown. (State ex rel. Short v. Owens, supra; Johnson v. Wells, 5 Okla. Crim. 599,115 P. 375; Dancy v. Owens, 126 Okla. 37, 258 P. 879; Goad v.State, 43 Okla. Crim. 411, 279 P. 927.) Here the affidavits annexed to the motion showed neither the materiality of the evidence sought to be adduced, nor the necessity for obtaining it from these particular witnesses. In fact at the trial respondent did not call the witnesses but the desired evidence concerning Justice Erickson's absences and his service and payment as a referee with the National Railroad Adjustment Board was stipulated by the parties, subject to objection as to its materiality.

The action is not for the benefit of any of the Justices. InState ex rel. Metcalf v. District Court, 52 Mont. 46, 56,155 P. 278, 281, L.R.A. 1916F, 132, Ann. Cas. 1918A, 985, this court speaking through Mr. Justice Holloway said: "The power to punish for contempt is in its nature a trust reposed in the courts, not for themselves, but for the people whose laws they interpret and whose authority they exercise. (Watson v.Williams, 36 Miss. 331.) While a court which would hesitate to use the power when the circumstances warrant would be guilty of craven faithlessness to duty it is always to be kept in mind that such power is imperious in its nature and summary in its execution. Under the law as it has been modified to harmonize with the genius of our institutions, the very judge who is libeled may become complainant, prosecutor, witness, and judge." (See, also, State ex rel. Short v. Owens, supra; Owens v.Dancy, 10 Cir., 36 F.2d 882.) "Contempts of court are punished as offenses against the administration of justice, and not as personal affronts to those who exercise judicial functions, * * *." (Ex parte Sullivan, 10 Okla. Crim. 465,138 P. 815, 818, Ann. Cas. 1916A, 719.) Accordingly this court held in In re Nelson, 103 Mont. 43, 60 P.2d 365, in an opinion concurred in by Justices John A. Mathews, Ralph J. Anderson, Samuel V. Stewart and Claude F. Morris, that it was not objectionable for Associate Justices Stewart and Anderson to testify to material matters and also to participate as members of the court. In his attempt to disqualify two of the Justices of this court on account of their being subpoenaed as witnesses on his behalf, respondent relies principally upon a certain dictum of this court in its recent decision in State ex rel. Moser v.District Court, 116 Mont. 305, 151 P.2d 1002, where the court quoted with approval from the decision of the Criminal Court of Appeals of Oklahoma in Ex parte Owens,37 Okla. Crim. 118, 258 P. 758. The author of the Moser opinion failed to note that at the beginning of the report of Ex parte Owens, supra, in the Pacific Reporter there appears this notation: "For opinion of Supreme Court quashing and annulling this opinion, see258 P. 879." He did, however, write [151 P.2d 1008]: "See, also: Dancy v. Owens, 126 Okla. 37, 258 P. 879." In Dancy v. Owens last cited, the Supreme Court of Oklahoma expressly quashed, vacated, set aside and held for naught the decision inEx parte Owens, supra, and branded it as "misleading to other courts of the state, and destructive of the judicial system of which this court is the head." [126 Okla. 37, 258 P. 887.] Thus this court's dictum in State ex rel. Moser v. DistrictCourt, supra, is based upon a decision which is not the law of Oklahoma and which is contrary to the law of Montana as is expressed in State ex rel. Metcalf v. District Court, supra, and in In re Nelson, supra, which we deem to be the law of this state. The motion for an order to disqualify the justices, being without merit, was denied.

In response to the citation and order to show cause, the respondent on November 21, 1944, appeared before this court in person and by his attorneys and the matter was heard. At the hearing respondent presented seriatim (1) a motion to quash the citation, (2) a special plea in bar, (3) an oral plea of "Not Guilty," and (4) a written answer.

Motion to quash. In the accusatory affidavit affiant states[5, 6] that he "is informed and believes" certain allegations therein set forth. In his motion to quash, respondent contends that such allegations so made on information and belief render the affidavit insufficient but this court has held to the contrary. (See State ex rel. Grice v. District Court,37 Mont. 590, 97 P. 1032, and State ex rel. Young v. DistrictCourt, 102 Mont. 487, 58 P.2d 1243.) The motion to quash asserts that this proceeding is violative of respondent's rights under section 10 of Article III of the Constitution of Montana and of the First Amendment to the Constitution of the United States, but such objections are not tenable. (See In re Nelson, supra.) The motion to quash also urges that in denying respondent's motion to disqualify four, or in the alternative two, of the Justices of this court his rights under section 27 of Article III of the Constitution of Montana and the Fourteenth Amendment to the Constitution of the United States were violated, but we found no merit in this contention and the motion to quash the citation was denied.

Special Plea in Bar. On October 14, 1944, this court made an[7] order to show cause setting forth the alleged conduct constituting the alleged contempt and directing that citation issue and be served upon respondent, being Cause No. 8562, but before such cause was heard or determined the accusatory affidavit of H.C. Hall, Esq., in the proceeding now before us was presented and filed and thereupon said prior cause No. 8562 was, upon order of this court, dismissed without prejudice. By a special plea in bar, respondent now urges that under section 12229 of the Penal Code such dismissal without prejudice constituted a bar to any further prosecution of the contempt charges against respondent. Section 12229, supra, relates only to criminal prosecutions, which actions must be commenced by the filing of a complaint, an information or an indictment. The present proceedings were not instituted under the provisions of the Penal Code and section 12229, supra, is not here applicable. In State ex rel. Haskell v. Faulds, 17 Mont. 140, 148,42 P. 285, 288, this court observed that "although such matters may be crimes, and punishable as such, still this does not deprive the courts of the power to punish such acts as contempts." The contempt proceeding itself, while of a criminal nature, is not a criminal prosecution within the meaning of the Criminal Code. (State ex rel. Flynn v. Fifth Judicial DistrictCourt, 24 Mont. 33, 60 P. 493.) Furthermore the contempt in question is not within the acts enumerated as misdemeanors under the penal statute (sec. 10944). The special plea in bar failed to state facts sufficient to constitute either a bar or a defense to this proceeding and relator's demurrer thereto was sustained on the authority of Ex parte Brambini, 192 Cal. 19, 218 P. 569, and State ex rel. Odenwald v. District Court, 98 Mont. 1,38 P.2d 269.

Accusatory affidavit. The accusatory affidavit alleges that respondent delivered his motion to the clerk for filing; that he thereafter mailed letters, enclosing copies of said motion, to divers persons throughout the state of Montana; that the motion was intended and calculated by respondent "to place manifestly irrelevant and improper matter in the files and records of this Court, and to use the same for the purposes apart from judicial business, namely for political purposes, and to embarrass, hinder and obstruct the administration of justice, to lessen respect for the Court and to destroy its dignity, all of which such motion tends manifestly to do"; that respondent "has misused his position and privilege as an officer of this Court and has misused this Court's records and the proceedings thereof for purely political purposes"; and that the motion contains irrelevant and impertinent matters which could not be reflected in the minutes or upon the records of this court as respondent well knew.

Answer. In his answer respondent pleads "Not Guilty" to the charges contained in the accusatory affidavit and then avers that the prosecution: (1) Impairs freedom of speech in violation of section 10 of Article III of the Constitution of Montana; (2) denies him due process in violation of section 27 of Article III of the Constitution of Montana and the Fourteenth Amendment to the Federal Constitution; and (3) denies him the privilege of free speech and the freedom of the press in violation of the First and Fourteenth Amendments to the Federal Constitution.

At the hearing, various documents were received in evidence, namely: (1) Respondent's motion for an order directing that the minutes and records be purged; (2) the minutes of the court for the three separate periods of time mentioned in respondent's motion; (3) order of the court of November 15, 1944, denying respondent's motion; (4) letter of October 9th mailed by respondent to the members of the bar of this state; (5) proclamation issued by the Governor proclaiming a general election to be held in the state of Montana on November 7, 1944, to elect, among others, a governor and two associate justices of the Supreme Court; (6) certificate by the Governor that at the primary election held on July 19, 1944, Leif Erickson, now an associate justice of this court, was duly nominated as candidate of the Democratic party for the office of governor; and (7) dissent of Mr. Justice Morris, filed November 17, 1944, to the order theretofore made denying respondent's motion for an order amending the minutes and records of the court.

The clerk testified that on October 7 the respondent delivered to him the original and five copies of respondent's motion, saying that he wished to file them; that the clerk "accepted the papers and transmitted them to Chief Justice Howard Johnson;" and that immediately thereafter he advised respondent what he had done with the papers. Julius J. Wuerthner, an attorney at law, testified that he received through the United States mails at Great Falls, where he resides, respondent's letter of October 9; that enclosed therewith was a mimeographed copy of respondent's motion; and that the witness knew that similar or identical communications had been received on or about the same date by other lawyers in the city of Great Falls. Counsel for respondent in open court admitted that respondent's signature was affixed to the letter so received by the witness Wuerthner, and relator rested.

Respondent, though present in court, did not testify. It was stipulated by counsel that the respondent was born in the state of North Dakota, United States of America, on the 13th day of March, 1912, and at all times thereafter remained a native-born citizen of the United States. Respondent called the clerk and a correspondent for the Associated Press as witnesses in his behalf but their testimony in no manner tends to contradict any of the charges made in the accusatory affidavit nor any of the evidence introduced by relator. No evidence was introduced by respondent disputing the fact that he delivered the original motion to the clerk for filing or that on the next business day he mailed mimeographed copies thereof, together with his letter of October 9, to every lawyer in the state and respondent has wholly failed to show why such acts and conduct are not contempt of this court.

As will be noted from a reading of the motion, it does not purport to seek a determination of the legality of the justice's service as a referee with the National Railroad Adjustment Board under the provisions of federal law during his periods of absence. In fact there can be no such determination upon an ex parte motion nor in any event without making the interested person a party to the action or proceeding. Nevertheless the greater part of the motion consists of statements, accusations and conclusions of law concerning such extraneous matters.

Respondent's motion was delivered to the clerk and presented to the court on October 7th, being exactly one month prior to the general election of November 7th. Mr. Justice Erickson was a candidate for the office of governor at that election and since the statements concerning said justice set forth in respondent's motion had no possible reference to the ostensible purpose of the motion it is apparent that respondent had inserted same for other than judicial purposes, namely for political purposes and to influence the outcome of said election. It is a rebuttable presumption which the respondent has not attempted to refute "that a person intends the ordinary consequence of his voluntary act" (sec. 10606, subsec. 3).

It is not an issue here whether the extraneous allegations, accusations and legal conclusions are defamatory or scurrilous, or whether they could properly have been used as political campaign material. The issue is simply whether or not the attorney's said conduct is such as to show him guilty of contempt.

As an attorney at law, respondent is chargeable with knowledge[8] of the irrelevancy and impertinency of the matters which he set forth in the motion and which were wholly foreign to the ostensible purpose of the motion. Respondent is likewise chargeable with the knowledge of his duties as an officer of the court; to use it and its files, records and machinery for only bona fide judicial purposes.

In his letter of Monday, October 9, 1944, respondent made a[9] further attack upon the court's minutes because they did not then show any action taken upon the motion which he presented to the court through its clerk on the preceding business day. He further attacks the court because the Justices did not convene at 10 o'clock a.m. on that day to hear his motion, despite the fact that under the published rules and established practice such motions are considered and disposed of without oral argument unless otherwise ordered (subdivision 3 of Rule XI) and that in any event it would be for the court, not the respondent, to set the time for a hearing. He further complains that "the clerk said he would not file any papers I might have, that he would transmit the motion to the Justices, and that I would be advised as to what the court would do." When the respondent delivered his papers to the clerk with directions that they be filed and when the clerk accepted the papers and transmitted them to the Chief Justice for action by the court, the documents were then and there filed and before the court, irrespective of anything that the clerk may have said or whether or not he then stamped, marked or wrote any filing memoranda or data on the papers. "A paper is filed when it is delivered to the proper officer and by him received for filing." (21 C.J.S., Courts, sec. 228, p. 427.)

Respondent further complained that shortly after 10 o'clock a.m., the clerk informed him that he would not then be heard and that the court would notify him as to what it would do at some indefinite time in the future. As before stated, the respondent is charged with the knowledge of the rules promulgated and the practice followed in this court and he should have known that he was not entitled to orally argue his motion nor to an immediate decision thereon. He did not specify any particular entry as being erroneous, but made an attack generally upon the minutes covering three separate periods of time during two separate years and time was required to examine the minutes and records for such periods and to consider the charges thus made, and he well knew that time would be required for this study but notwithstanding he sent his letter out on the next business day after filing the motion.

Complaining further, respondent states "the clerk returned my Ten Dollars." The fees of the clerk are prescribed by the legislature. (Sec. 372, Rev. Codes.) No fee is prescribed for the filing of a motion and therefore no fee could be accepted by the clerk for he may not collect any fee not prescribed by law. (State ex rel. Baker v. Second Judicial District Court,24 Mont. 425, 62 P. 688; State ex rel. King v. Second JudicialDistrict Court, 25 Mont. 1, 63 P. 402.)

Complaining further, respondent states that after the clerk returned his ten dollars, he looked up the minutes of the court and that there was no entry covering this item of business. The minutes are simply brief memoranda of what takes place in court, made by the authority of the court. The minutes do not now nor have they in the past indicated the time of reception or filing of typewritten or printed motions or the time of payment of appearance fees, nor the amount of fees collected. Clearly the writing and publication of the letter of October 9th constituted contempt. In Re Shay, 160 Cal. 399, 117 P. 442, 446, the court said: "That the writing and publication of the letter, if the false statements therein made were believed, would cast discredit upon this court and the Justices thereof, cannot be denied. It falsely imputes to the Justices of this court improper conduct of which they are entirely innocent. Whether made wittingly, or through sheer inadvertence or carelessness, it was a grave breach of his duty as an attorney on the part of Mr. Shay. Apparently it was not intended to be made public. Its recent publication does not appear to have been made at the instance of Mr. Shay or Mr. McKinley, but rather against their wish and will. This fact somewhat palliates the offense. But the writing of such a letter made the publication possible. Its untruthful statements are well calculated to create the false impression that the members of this court are on terms of undue intimacy with powerful litigants. Such a false impression is most mischievous, and must tend greatly to impair the confidence of the people in the integrity of the court. To attempt to create such an impression, even to a few individuals, is a serious violation of duty by one upon whom the law enjoins the utmost fidelity and vigilance to preserve the court and its justices from even the appearance of evil." (See also Falloon v.Superior Court, 79 Cal. App. 149, 248 P. 1057; Daily v.Superior Court, 4 Cal. App. 2d 127, 40 P.2d 936.)

The ostensible purpose of respondent's motion was to obtain[10] from this court an order directing that its minutes and records be purged of entries which respondent alleges falsely represent that one of the Justices was present when in fact he was absent from the seat of government. The only issue tendered by the motion was: Do the minutes and records indicate that Mr. Justice Erickson was present when in fact he was absent from Helena? It is obvious that the major portion of the motion consists of wholly irrelevant and impertinent matters having no bearing on the question of the correctness of this court's records. This is apparent upon the face of the motion and it was within the sound discretion of this court to forbid such a document from being spread upon its records. The court was empowered to deny the document a place in its files since if already filed, the court had the power to order it stricken therefrom as this court held, with Mr. Justice Morris' concurrence in Nadeau v. Texas Company, 104 Mont. 558,69 P.2d 586, 593, 111 A.L.R. 874. "It is elementary law, of course, that a court has the right to protect the integrity of its own records. Any court of record has that indispensable authority." (Gaston v. Collins, 146 Kan. 449,72 P.2d 84, 87.) "A court of record has general authority over its own records, and they are within its custody and control, particularly so far as they pertain to the court's business and so far as is essential to the proper administration of justice. * * * In exercising control over its records, a court has power to protect them from irrelevant, unimportant or superfluous papers, and to keep the records free from stain and scandal not pertinent to the cause and unnecessary to the decision." (21 C.J.S., Courts, sec. 229, p. 430.)

In In re Huppe, 92 Mont. 211, 225, 11 P.2d 793, 798, this court said: "The obligation which an attorney assumes when he is admitted to the bar includes the maintenance of respect for our courts and judicial officers. This obligation is not discharged by merely observing a courteous demeanor in open court, but includes abstaining, in and out of court, from the use of insulting and libelous language, spoken, written or printed, or other offensive conduct toward judges personally or their official acts. This rule is generally applied only to official acts (Neel v. State, 9 Ark. 259, 50 Am. Dec. 209), such as stopping a judge on the street and abusing him because of his decision or conduct of a case (People v. Green, 7 Colo. 244,3 P. 374, 49 Am. Rep. 356), but should be extended to include all misconduct which tends to bring the courts into disrepute. The habit of criticising the motives of judicial officers in the performance of their duties, when the proceedings are not against the officers whose acts and conduct are criticised, as in the case of a direct proceeding of impeachment, tends to subvert the confidence of the community in the courts of justice and in their administration, and when such criticism is made by an attorney, who is an officer of the court, he is guilty of professional misconduct (Matter of Rockmore, 127 A.D. 499,111 N.Y.S. 879)."

Section 9908, subdiv. 3, Revised Codes, provides: "The following acts or omissions, in respect to a court of justice, or proceedings therein, are contempts of the authority of the court: * * * 3. Misbehavior in office, or other wilful neglect or violation of duty by an attorney * * *." This provision was before the court in In re Shay, supra, wherein the court said: "If the persons thus immediately connected with the court do not observe proper respect toward it, or make statements derogatory to its character, the public regard and confidence would be much more affected than by similar behavior on the part of ordinary citizens not connected with the court or familiar with its proceedings. The court should have greater control of these persons than would be necessary with respect to ordinary citizens. It was for the purpose of giving to the court a means of protection against such attacks upon its character — attacks, as it were, from within — that this subdivision was enacted."

"It is well settled that contempt may be committed by incorporating impertinent, scandalous, insulting or contemptuous language reflecting on the integrity of the court in pleadings, motions, notice of motions, affidavits, and other papers filed in court." (Citing numerous authorities.) (Hume v. SuperiorCourt, 17 Cal. 2d 506, 110 P.2d 669, 674. See, also, Inre Freebourn, 92 Mont. 585, 19 P.2d 1115.) In the early case of Brownell v. McCormick, 7 Mont. 12, 18, 14 P. 651,653, this court said: "In presenting this case to this court, there has been conduct which we must severely condemn. The brief of the appellant contains language attempting to cast reproach upon the proceedings of the court below, and seeking to make it the object of contemptuous wit and ridicule. * * * No character of persons can have a deeper interest in preserving the dignity of the bench, or maintaining the courtesies of our honorable profession, than the members of the bar, and they should act accordingly. This is one of the avowed purposes for which bar associations are formed, and one of the objects to which their efforts are directed. The language of the brief in this case is reprehensible, as being in violation of the conduct and courtesy due from the bar to the bench, and will not be tolerated."

In Owens v. Dancy, 10 Cir., 36 F.2d 882, 885, the court said: "Appellant caused the contemptuous pleading * * * to be brought into court and placed among the files in the case to which he was a party for the court's inspection and action thereon. This clearly constituted contemptuous conduct in the presence of the court. As to the facts, the motion filed by appellant was the whole case; and they presented a question of law."

In Ex parte Bowles, 164 Md. 318, 165 A. 169, 173, the court said: "The affidavit as a whole, directly and by necessary inference, impugns the integrity and honesty of the court, and constitutes an attack which the court could not pass without serious impairment of its dignity and standing as an instrument for the administration of justice. The contemptuous language is contained in an affidavit filed among the public records of the court, and directed to it. The court has, and must have, the inherent right and power to maintain and preserve its dignity and decorum, in order that its usefulness be preserved." (Citing cases.)

So in the instant case, as to the facts, the motion presented[11, 12] by respondent and the letter mailed by him to all the lawyers in the state enclosing a mimeographed copy of the motion are the whole case. They present a question of law. They have not been explained. It is apparent that they were intended and calculated by respondent to question and attack the integrity of this court and to lessen, if not destroy, respect for the court. They were intended to embarrass, hinder and obstruct the administration of justice by the court and this they have done. They were calculated to intimidate the court and to coerce its action but in this they have failed. Accordingly we must find respondent guilty of the offense of contempt of this court.

There is however a mitigating circumstance. Respondent is comparatively inexperienced in practice before this court. A reference to the actions taken by this court, of which we take judicial notice (sec. 10532, Rev. Codes), discloses that the court has dealt with only four prior actions or matters in which respondent has appeared as counsel. Aside from a pending case in which he appears as counsel for the Industrial Accident Board of the State of Montana, all of those cases involved attacks upon Chapter 47 of the Laws of 1941, by which the Legislative Assembly in effect granted military leaves of absence to certain public officers and employees entering the military service of the United States. The first such case was Gullickson v.Mitchell, 113 Mont. 359, 126 P.2d 1106, wherein this court held the statute constitutional with Mr. Justice Morris dissenting. There respondent appeared as amicus curiae and attacked the constitutionality of the statute. The decision therein has been cited with approval and followed by the courts of California, Kentucky, Utah and West Virginia.

Next in State ex rel. Niewoehner v. Mitchell, 113 Mont. 617,139 P.2d 545, respondent appeared both as relator and counsel. He there sought unsuccessfully a writ of mandate to compel the secretary of state to accept his nominating petition, presented on the last day for filing nominating petitions, in which he sought to be a candidate at the intervening general election of 1942 for the office of attorney general, which was not included in the governor's election proclamation, and which in Gullickson v. Mitchell, supra, this court had held would not then be open to election because of the military leave allowed under Chapter 47, Laws of 1941, to John Bonner, the attorney general elected by the people in 1940 for a four-year term.

In the third case, State ex rel. Niewoehner v. Bottomly,116 Mont. 96, 148 P.2d 545, respondent again was both relator and of counsel. The action was in quo warranto against R.V. Bottomly, who had been appointed by the Governor under Chapter 47, Laws of 1941, to perform the duties of the office of Attorney General during the military absence of John Bonner, the officer elected in 1940 for a four-year term. In spite of this court's decisions in Gullickson v. Mitchell, supra, and in spite of the fact that the office of attorney general did not appear upon the Governor's election proclamation or upon the election ballots, respondent claimed the office by virtue of 124 write-in votes received by him out of some 170,000 ballots voted. The relator was again unsuccessful and again the court upheld Chapter 47, Laws of 1941, Mr. Justice Morris dissenting.

As this court, a half century ago, said speaking through Mr. Chief Justice Pemberton in State ex rel. Haskell v. Faulds,17 Mont. 140, 42 P. 285, 289: "We have no desire to oppress the respondent. We understand and fully appreciate the delicate and unenviable position of this court in this peculiar case, as we are, in a sense, trying a matter that involves an offense against our own tribunal. We regret that we have felt called upon by a sense of duty to proceed in this matter at all. Only the belief that it was our duty to defend the court and its proceedings from unwarrantable, contemptuous, and calumnious attack has inspired and moved us in the matter."

As above stated, we find the defendant guilty of contempt. It is the order of this court that in accordance with this finding of guilt the respondent, George E. Niewoehner, appear before this court for the pronouncement of judgment on the twentieth day of December, 1944, at two o'clock, p.m.

Note: On December 20, 1944, the Court pronounced the judgment imposing a fine of $250 upon respondent Niewoehner.

(See also Supplemental Opinion of Court at p. 474).

Dissenting opinion, (Filed December 26, 1944.)