In Re Brown , 168 N.C. 417 ( 1915 )

At common law, the power of courts of record of general jurisdiction to punish for contempt and, in certain instances, by summary procedure, has existed time out of mind; as said by Judge Blackstone, "as far as the annals of the law extend."

It is a power inherent in any court engaged in administering justice as a governmental function, and, in the higher courts, established and existent under constitutional provision and in matters essential to the proper and efficient exercise of their jurisdiction, it may not be destroyed or sensibly impaired by legislative enactment. Ex Parte McCown,139 N.C. 95; In re Gorham, 129 N.C. 481, and concurring opinion of Clark,J., 489; In re Deaton, 105 N.C. 59; Scott v. Fishblate, 117 N.C. 265.

While it is understood with us that, in mere matters of procedure and in courts below the Supreme Court which comes under the influence of a special constitutional provision, the question presented may be to some extent regulated by legislation, it is also held that, both as to direct and constructive contempts, the trial is properly had by the court without the intervention of the jury, and usually by the court against which the offense has been committed. In re Deaton, supra; Baker v. Cordon,86 N.C. 116; Herndon v. Ins. Co., 111 N.C. 384; Horton v. Green,104 N.C. 400.

The power in question is conferred to enable a court to command respect and obedience, and it would go far to weaken and, in case of direct contempt, would well-nigh destroy it if the occasion of its present exercise would have to be referred for decision to some other tribunal or agency.

In reference to this procedure by contempt, it was very generally if not universally recognized as the proper method of maintaining order in the courts and of enforcing obedience to their decrees and mandates, and in case of constructive contempt, often arising from false and defamatory publications concerning court trials and proceedings, (421) the power was not infrequently exercised, and this, in earlier times, whether these trials were pending or had terminated. This last position has, however, been very much modified, and owing in a great measure to a different and, to our minds, a truer concept of the nature and extent of this power, and in part, no doubt, to the unusual method of procedure which, in its practical application, usually required that a judge, keenly and at times vitally interested in the result, should consider and determine the questions involved, many of the courts of this country have long held it for law that the right to punish for constructive contempt by reason of false and defamatory publications concerning proceedings in court should be properly confined to such publications about a trial or proceedings still pending; that it was only because and when such publications were calculated to obstruct or unduly interfere with the due administration of justice that such a power could be properly exercised, and that it was only when and to the extent that the judge was presently engaged in dispensing the State's justice that he could be considered as embodying in himself the majesty of the State's law and authorizing him to enforce obedience and respect to the courts and to his official acts; but, after a court had ended and a trial had finally terminated, if false, defamatory, or scurrilous publications were made concerning his official or personal conduct, this became a personal matter, and he must seek redress by the ordinary methods and bring his cause before an impartial tribunal.

In this position, the doctrine of contempt by "scandalizing the court," a term used, I believe, by Lord Hardwicke, and without reference to its effect or tendency to obstruct or interfere with the administration of justice, has no place, and the same will be found approved, substantially as stated, in many well considered decisions of the State courts of this country, as, In re Hart, 104 Minn. 88; Story v. The People, 79 Ill. 45;Cheadle v. The State, 110 Ind. 301; Percival v. The State, 45 Neb. 741; Ex Parte Greene, 46 Tex.Crim. App., 546; S. v. Anderson, 40 Iowa 207, and many others could be cited, is in accord with the rule prevailing in the Federal Court, both by statute and precedent (Pattersonv. Colorado, 205 U.S. 454; 1 U.S. Comp. Statutes, sec. 725), and, as a practical proposition, obtained in England in 1899 and for a long period prior to that date. McLeod v. St. Albans, Appeal Cases 1899, pp. 549-561. In that case My Lord Morris, while asserting the existence of the power as described and stated by Lord Hardwicke, in delivering the judgment, said further: "Committals for contempt of court are ordinarily in cases where some contempt ex facie of the court has been committed, or for comments on cases pending in the courts. However, there can be no doubt that there is a third head of contempt of court by the publication of scandalous matter of the court itself. Lord Hardwicke so lays down without doubt in the case of In Re Read (422) and Huggonson. (1) He says, ``One kind of contempt is scandalizing the court itself.' The power summarily to commit for contempt of court is considered necessary for the proper administration of justice. It is not to be used for the vindication of the judge as a person. He must resort to action for libel or criminal information. Committal for contempt of court is a weapon to be used sparingly, and always with reference to the interests of the administration of justice. Hence, when a trial has taken place and the case is over, the judge or the jury are given over to criticism. It is a summary process, and should be used only from a sense of duty and under the pressure of public necessity, for there can be no landmarks pointing out the boundaries in all cases. Committals for contempt of court by scandalizing the court itself have become obsolete in this country. Courts are satisfied to leave to public opinion attacks or comments derogatory or scandalous to them."

True, in the next year, this power was exerted in England in the case ofReg. v. Gray, 2 L. R., Q. B. Div., 1900, p. 36, though it may be noted that, in delivering judgment, Lord Russell referred to the fact that the article in question, containing scurrilous abuse of the judge and in reference to his conduct as judge while sitting under the Queen's commission, "was published in a newspaper and circulated in the town where he was still holding court."

There are courts in this country, of eminent ability and learning, which still adhere to the earlier position, a notable case being that of S. exinf. Crow, Atty.-Gen., v. Shepherd, 177 Mo., 255, a case very fully commented on in Thomas on Constructive Contempt and Burdett v.Commonwealth, 103 Va. 838, and S. v. Morrill, 16 Ark. 384; and other decisions are to like purport. And, in North Carolina, this doctrine in reference to constructive contempt was undefined and altogether uncertain until 1870-71, when the Legislature, having its attention called to the subject by the case of In re Moore, then recently decided by the Supreme Court (63 N.C. 397), passed an act (chapter 216, Laws 1870-71) amending our statute on contempt, chapter 177, Laws 1868-69, and which, after reciting that doubts existed as to the extent of the power of the court in the premises, and that it was "due, alike to judicial authority and the freedom of the citizen, that all offenses, and especially those for which summary punishments without trial by jury may be imposed by the courts, should be distinctly known and the nature of the punishment defined and prescribed by law," added to section 7 of the former law, "The publication of grossly inaccurate reports of the proceedings of any court," the words, "about any trial or other matter then pending before said court, made with intent to misrepresent or bring into contempt the said court." The amending statute, among other things, then declared: "That the several acts, (423) neglects, omissions of duty, malfeasances, misfeasances, and nonfeasances specified in the former law as amended were the only acts, etc., that should be the subject of contempt of court, and that, if there were any parts of the common law then in force which recognized any other acts, etc., besides those specified, the same were repealed and annulled."

This statute, appearing in Revisal 1905, ch. 17, sec. 939 et seq., has been several times approved in its principal features by decisions of this Court, beginning with Ex Parte Schenck, 65 N.C. 353; In re Walker,82 N.C. 95; In re Patterson, 99 N.C. 407, and many other cases. And, so far as we can now see, as construed and interpreted in the cases cited and others, notably Ex Parte McCown, supra; In re Deaton, supra; Scott v.Fishblate, supra, it recognizes as valid every power that can rightfully be considered as essential to the respect and dignity of the court and the due and orderly administration of justice therein. The act, in different sections and in comprehensive language, purports to confer on the court the power to punish summarily or on notice any and all disorderly behavior tending to interrupt its proceedings or to impair the respect due to its authority — any such conduct before its referees or juries, while engaged in official duties; any breach of the peace, noise, or other disturbance directly tending to interrupt its proceedings; disobedience of or resistance to its lawful decrees, orders, or processes; contumacious or unlawful refusal of any person to be sworn as a witness or to answer any legal or proper interrogatories after being sworn; misbehavior of any and all subordinate officers of the court in any official transaction; and, in reference to constructive contempts, arising by means of publications, etc.: "The publication of grossly inaccurate reports about any trial, or other matter pending before the court," etc.

Having reference to the history of this statute, the context and the language employed, it was clearly the purpose and meaning of the act to restrict the power of the court, in this last respect, to the publication of grossly inaccurate reports about a trial or other matter still pending, and, this being in our view the proper and only permissible occasion for the exercise of such a power in reference to these publications, we are of opinion that the provision of the statute should, in this respect, be upheld as written, and the power to punish summarily for defamatory reports and criticisms, about a matter that is past and ended, no longer exists.

It may be that if a grossly indecent or scurrilous publication about a judge in reference to his official conduct should be made and circulated in the community where he was presently holding court, and about his rulings in such court, conditions might be created where the exercise of the power could be upheld as essential to the due and orderly administration of public justice (a case presented in Reg. v. Gray, supra), (424) but no such conditions appear in this record, the facts showing that the publications complained of were made after the court had adjourned, and, so far as appears, after any and all matters referred to concerning the official conduct of the judge had terminated. Under the principles stated, therefore, the respondents may not be dealt with by process of contempt, but, however reprehensible their conduct may have been, redress must be sought before another tribunal and by ordinary methods of procedure.

The motion to dismiss for want of jurisdiction was properly overruled. The court finds as a fact that copies of the publication were circulated in the county of Northampton, where the trial was held, and, if it were otherwise, except in cases to enforce obedience to an order or a decree in a suit pending, this, regarded as an independent or collateral matter, is held to be a question of venue. Herring v. Pugh, 126 N.C. 852, and, ordinarily, a change of venue is not allowed in proceedings of this character. 9 Cyc., p. 35. And the exception to his Honor's refusal to order a reference, under section 875 of the Revisal, is without merit. Even if the section applied, it clearly leaves the matter in his Honor's discretion.

For the reasons heretofore stated, the judgment of the lower court must be reversed and judgment entered that defendants go without day.

Reversed.

Cited: S. v. Little, 175 N.C. 745; In re Fountain, 182 N.C. 53; S. v.Hooker, 183 N.C. 767.