Burke and Brown v. Territory of Oklahoma

The opinion of the court was delivered by The plaintiffs in error rely upon four propositions for the reversal of the judgment of the court below, which we will consider in their order.

"1. The offense charged should have been presented by indictment."

Section 2039 of the Statutes of Oklahoma of 1893, provides:

"Every person guilty of any contempt of court of either of the following kinds is guilty of a misdemeanor; * * *"

The part of this section, not embodied in the quotation, makes such conduct as that complained of here a misdemeanor; and it is contended by the plaintiffs in error, that, as the acts of the parties charged constituted a misdemeanor, and, as it is such a misdemeanor as may be prosecuted by indictment, that the district court had no power whatever to proceed with the prosecution under an information.

This contention is untenable for two reasons. In the first place, the language of the statute itself shows a clear intention on the part of the legislature not to make contempts of court exclusively punishable by prosecutions by indictment. The act evinces no intention on the part of the legislature to take away from the court a power which it already had to punish contempts of court in the summary manner of such proceedings. The legislature simply provided that contempts of court were also misdemeanors. It declared that an offense against the court, of a certain prescribed kind, was also an offense against the public. This was proper legislation, and in no way affected the court's power to punish, by the ordinary proceedings, such contempts. The legislature undoubtedly intended that the judge of the court whose office was transgressed, whose dignity was offended, and whose integrity was impeached, should not be the only person to determine whether such acts should be prosecuted. Such conduct is often overlooked by the courts when the acts are a serious injury to the public. The diffidence of courts to take up for investigation and punishment matters which are aimed, not only at the court in its public capacity, but also in its individuality, often permits such transgressions, as contempt of court, to be overlooked and allowed to go unnoticed, by the judges of the courts; and the public welfare, the morals, the good behavior and the proper consideration of a community for governmental functions are thereby often greatly injured. The legislature intended that the public itself might also have a right to prosecute these offenses; not to take away a power which the court already had to punish the offender, but to prescribe a means in addition to that already possessed for such punishment.

We not only do not think the legislature, by this enactment, intended to take away the power of the courts of this territory to punish by summary proceeding for contempt of court, but this statute could in no way have that effect. The power to punish for contempt of court is inherent in all courts of record. (Ex parte Robinson, 19 Wall. 505; in re. Millington,24 Kan. 214; People vs. Stapleton, 33 Pac. (Col.) 167; Middlebrook vs.State, 43 Conn. 257; Tyler vs. Hammersley, 44 Conn. 393; Holmanvs. State, 105 Ind. 513; ex parte Terry, 128 U.S. 289.)

The Organic Act, § 9, vests in the courts of this territory chancery as well as common law jurisdiction, and this carries with it the power to punish for contempt. This is a constitutional provision for this territory, and the grant of legislative power in the Organic Act vests in the legislature no right to take away any of the inherent powers of the court. The legislature has no power, in the absence of a constitutional provision, to regulate or limit the inherent powers of a court to punish for contempt. (Middlebrook vs. State; Tyler vs. Hammersley, supra; Rapalje on Contempt, § 11.)

The defendants' second allegation of error, in the court below, is in not granting a trial by jury.

This contention of the defendants, in the court below, plaintiffs in error here, is also untenable. A party accused in a contempt proceeding has not the right of a trial by jury, and a denial of the right of trial by jury, on such a hearing, does not infringe the constitutional provision guaranteeing the citizen the right of trial by jury. (Gandy vs. State,13 Neb. 445 (14 N.W. 143); ex parte Grace, 12 Iowa, 208; Rapalje on Contempt, § 112.)

The third allegation of error is: "The plaintiff was entitled to have the evidence against him produced, and an opportunity to refute it."

The information charged the defendants with a contempt of court, and they were required to answer this information. The information charged the commission of a contempt of court, in that the defendants did certain acts by publishing the articles complained of in their newspaper while the matter referred to was pending in court and undetermined. These acts were not denied. The defendants admitted the doing of them, but sought to excuse themselves from the consequence of the acts by a denial consisting of legal conclusions, and by the allegation of matters which could in no way be a defense. All of the matters of fact which the court found, were matters that were either admitted by the defendants' answer or of which the court could take judicial knowledge. The false charges made by the defendants were with reference to certain matters which were proceedings of the court. The court knew the truthfulness or the falsity of all of the things referred to as well as, if not better than, any witness could. It certainly knew its own court proceedings as well as any other person. No other person could know them any better than the court itself. The courts take judicial knowledge of their own proceedings and of whatever is done in court, within the limits of their jurisdiction. (Greenleaf on Evidence, vol. 1, § 6.)

On this subject the supreme court of Wisconsin, in the case of Brucker vs. State, 19 Wis., 539, says:

"The determination, therefore, depends chiefly upon whether we can take judicial notice of our former order. If we cannot, it seems, upon the record before us, that the objection is well taken; but if we can, then our conclusion would be different. We are inclined to the opinion that, for the purpose of this objection, we can take such notice, and that the former record and order may be considered. The objection is, that the cause had not been remitted. Whether it had or not, the record and proceedings upon the former writ, always before this court, are certainly the best evidence, and we think they may be examined for the purpose of ascertaining the fact."

If the court may take judicial knowledge of its own record proceeding, might not the court in this case take judicial knowledge of whether the court was in session on a particular day, what it was doing at the time, as to whether or not the grand jury made a report, as to what that report contained, as to whether the report was one which the court should receive or not, as to whether the defendants wrote a letter to the court, which they admit writing and sending, and which the court received, and the time the court received it, and as to what the court did when this report was presented and as to what action the court took upon it, and as to when the action was taken? Evidence would not have assisted the court in making a finding on these questions, and there was no necessity for taking any evidence.

In the case of Hunter vs. N.Y. O. W. Ry. Co., 116 N.Y. 615, the court said:

"Courts are not bound to take judicial notice of matters of fact. Whether they will do so or not depends on the nature of the subject, the issue involved and the apparent justice of the case."

The issue involved in this case being one only as to the court's own proceedings, the fact that the defendants by newspaper articles had attacked the propriety thereof being admitted, and the only remaining element to the completion of the offense being one of motive on the part of the defendants in the publication and that being one which must be gathered from the acts committed, and the manner of committing the acts, was one which the court could and had the right to judicially determine from the facts within its judicial knowledge.

In the case of Middlebrook vs. State, 43 Conn. 257, it was held that a formal and judicial hearing were not necessary in a contempt proceeding. On this question the court said:

"If it was necessary that the judgment should be preceded by a trial, and the facts found upon a judicial hearing, as with ordinary criminal cases, it would be otherwise. But in this proceeding nothing of the kind was required. The judicial eye witnessed the act, the judicial mind comprehended all the circumstances of aggravation, provocation, or mitigation; and the fact being thus judicially established, it only remained for the judicial arm to inflict proper punishment."

The only material matters of fact disputed by defendants' answer, if in fact any necessary ones were disputed at all, were matters which the court might determine without evidence outside of the court's proceedings, being offered, and whether the court correctly determined them or not is not for our consideration. In a case of this kind questions of law only will be examined on appeal.

In the case, in re Pryor, 18 Kan. 72, the party was prosecuted for sending a contemptuous and insulting letter to the judge of the court, concerning a matter then pending. That was a case much akin in principle to the one at bar, in that neither in that nor in this case were the parties charged with contempt in open court — in the real presence of the court — but their written language and charges were concerning matters then pending in court. The able jurist, Justice Brewer, after reviewing the matter of the conduct of an attorney towards the court and of the court's consideration of expressions which may, in the moment of disappointment, slip from the lips of a disappointed attorney, and which the court will not always regard as a contempt, said:

"We make these suggestions, not as intimating that such has been the prior conduct of the attorney in this case, for we neither know nor have heard anything outside of this single matter which reflects at all upon him. We do it simply to indicate that the wisdom or necessity of the court's action is not always disclosed by the single matter apparent in the record, and that therefore, in a matter like this, involving personal conduct towards the court, a large regard must be paid to its discretion. If the language or conduct of the attorney is insulting or disrespectful, and in the presence, real or constructive, of the court, and during the pendency of certain proceedings, we cannot hold that the court exceeded its power by punishing for contempt."

In the case of Tyler vs. Hammersley, 44 Conn. 393, the supreme court of that state, in defining the extent to which an appellate court would review the proceedings in a contempt case, said:

"In the second place, the proceedings upon which the judgment was rendered should not be revieved except so far as may be necessary to determine whether the court in rendering the judgment acted within the sphere of its jurisdiction. Every court must of necessity possess the power to enforce obedience to its lawful orders and judgments, and punish contempts of all kinds against its authority. It is only when it acts without its jurisdiction that its proceedings in such cases will be interfered with or questioned by a superior tribunal. The principle upon which courts proceed in such cases is clearly stated in the celebrated case of Burdett vs. Abbot, 14 East. 1, 150, and the case of The People vs. Sturtevant, 5 Seld. 263. In the former case, Lord Ellenborough, in the course of an able and interesting opinion, observed that if a commitment appeared to be for a contempt of the house of commons generally, he would neither in the case of that court or any other superior court inquire further; but if it did not profess to commit for a contempt, but for some matter which could by no reasonable intendment be considered as a contempt of the court commiting, but a ground of commitment palpably and evidently arbitrary, unjust and contrary to every principle of positive law or natural justice, he would look at it and act upon it as justice might require, from whatever court it might profess to have proceeded. It the case of The People vs. Sturtevant, the rule laid down by the court was that 'a party proceeded against for disobedience to an order or judgment is never allowed to allege as a defense for his misconduct that the court erred in its judgment. He must go further and make out that in point of law there was no order and no disobedience, by showing that the court had no right to judge between the parties on the subject.' "

In the case of Commonwealth vs. Newton, 1 Grant (Penn.) 453, the court said:

"The court having a limited jurisdiction in contempts, every fact found by them is to be taken as true, and every intendment is to be made in favor of the record, if it appears to us that they proceeded within and did not exceed their jurisdiction."

In the case of Holman vs. State, 105 Ind. 513, the supreme court, with reference to the force and effect to be given to the statement of the judge upon matters that occurred in court, said:

"As that statement is confined to matters that occurred in open session, and in the presence of the judge, we must treat it as importing absolute verity."

The fourth objection of the plaintiffs in error to the correctness of this judgment is, "that the facts stated constitute no offense, and no contempt of court."

Appellants contend that the offense, if such it was, committed by them against the court below, was not one for which they could be prosecuted in a contempt proceeding, because the acts alleged to have been committed were not contempt under the provisions of the act of March 2, 1831. It is contended that this act, which is now embodied in the provisions of § 725 of the revised statutes of the United States, is applicable to the courts of this territory and restricts the inherent power of the court in contempt proceedings and gives no power to punish as for the commission of a contempt in a case of this kind. This act of March 2, 1831, is not applicable to territorial courts and does not limit the inherent power given by congress to this court to punish contempts against its authority. The act of March 2, 1831, with reference to the courts to which it applies is as follows: "That the power of the several courts of the United States to issue attachments." * * * Now, are the district courts of this territory one of "the several courts of the United States," as contemplated by this act? That the territorial courts are not one of the constitutional courts as contemplated by this language, but are mere legislative courts, has been held both before and since the act of March 2, 1831. This was so held in the case of the American Ins. Co. vs.Canter, 1 Pet., 511-546, decided by the supreme court of the United States in 1828; and it was so held in McAllister vs. UnitedStates, 141 U.S. 174, decided in 1891. And it has been so often held as to leave it no longer a question even for discussion. The acts which refer to the several courts of the United States do not apply to the courts of the territories; and such provisions are only made applicable to the territorial courts in such respects as they are expressly so made by act of congress.

The cases of ex parte Robinson, 19 Wall. 505, and ex parteTerry, 128 U.S. 289, are not in conflict with this holding. In neither of these cases was it held that this limitation on the inherent power to punish for contempt of court possessed by the United States courts extended beyond the circuit and district courts of the United States. The language in ex parte Robinson to the effect that this act applies to all courts should not be taken as a construction of the supreme court making it applicable to all courts within the United States, but should be taken in connection with the matter then under consideration, that is, the application of this act of congress to the courts of the United States. There can be no dispute that this act in terms does apply to all courts of the United States, but the United States supreme court suggested in the case of ex parte Robinson the doubt as to whether it could even be made to apply to the supreme court of the United States, because its powers were derived from the constitution. The determination in ex parte Robinson was no broader than this act applies to the circuit and district courts of the United States; and in ex parte Terry, to the circuit courts of the United States. A determination, however, that it applied to all courts of the United States, which is broader than that given it in these cases, would not make this act applicable to the territorial courts because they are not courts of the United States within the now well understood meaning of this language in judicial decisions and acts of congress. The change of the language in § 725 of the revised statutes of the United States, in respect to courts to which this provision of March 2, 1831, is applicable, from "the several courts of the United States" in the original enactment to "the said courts" in the revised statutes in no way affects the contention. There is nothing in the language of the revision making any change in the courts to which its provisions are applicable, and nothing to indicate that congress intended to change the scope of this provision. Section 725, too, is contained in a chapter of the revised statutes which refers exclusively to United States courts and in no part or paragraph refers to territorial courts. In any event in the case at bar the contempt against the court was not committed while the court was exercising any of the jurisdiction given to the courts of the United States and which is by the Organic Act given also in the particular respects to the district courts of this territory. The record in the case shows that the court was sitting as the territorial district court of Oklahoma county, and not as a United States court for that county, when the contempt was committed. While the court was so sitting it was not in the exercise of any power, authority or jurisdiction of a United States court; and even if it should be held that the act of March 2, 1831, applied to the district courts of this territory when they were sitting in the exercise of the jurisdiction of United States circuit and district courts, it could not be so held when the court was sitting in the exercise of its common law jurisdiction as a territorial court.

The acts committed by the defendants in the publications of these articles do constitute a contempt of court. The acts of the defendants, both in writing the letter and in making the publications, were committed for the purpose of forcing, by the strong arm of the public press, the judge of the court to make public a document which he had not adjudged could be received as an indictment or an accusation, and which he afterwards adjudged was not in proper form to be received as a report, as an accusation or as an indictment of the grand jury, and an instrument concerning which the court then had under consideration the question as to whether it should be accepted or returned to the grand jury with further directions. It was a charge by strong implication, if not by direct statement, that the judge intended to withhold the report of the grand jury, and then charged that the withholding of the same "is an effort to brow-beat the grand jury." It contains a direct statement that the action which the court was taking was "an effort to bend the grand jury to the will of the judge. Such an attempt is a serious one, Judge Scott does not realize how serious," intending thereby to cast reflection upon the purpose of the judge in his consideration of the matter then before the court, and attributing a tyrannical and insincere motive to his action. This matter was before the court for its consideration and had not been determined at the time these publications were made. The fact that the court afterwards determined that the return or presentment or report of the grand jury could not be received, gave the court none the less jurisdiction of the matter and made it none the less a matter pending in court at the time the defendants sought to force a particular decision upon the question as to whether or not he would receive this report. Cases are often determined by the court holding that the matter is not properly presented or that the court has no jurisdiction of the subject matter or proceeding. This, however, is not a denial of the fact that the court had jurisdiction of the case or proceeding then pending. The case or the proceeding is as much before the court and involves as much of judicial action when the court holds that the matter is improperly presented, or even if the court has no jurisdiction of the subject matter of the action, as it is when the case is determined upon the merits. There was nothing improper or unusual in the court's taking time to consider whether an instrument presented by the grand jury should be accepted by the court. The court is not bound to receive and accept from the grand jury everything which it may present.

One of the legal and judicial steps to be taken before any return of the grand jury becomes an indictment, accusation or report, is that it must be presented to and received by the court, and the court has a right, before accepting and receiving it, to return it to the grand jury or to receive it as the court thinks proper. This required judicial action. The court being in session, being engaged in the trial of a case when this return was made by the grand jury, and it appearing upon such a hasty perusal as the court could then make, that it was out of the usual form, it was not only the power but it was the duty of the court to take the matter and give it fair and candid consideration before passing judgment upon its propriety and validity. Until it was received by the court it still remained among the secret proceedings of the grand jury, and one which neither the court nor the grand jury itself had a right to make public. The judge being engaged in the trial of a cause before a jury, and which must necessarily have required his attention at that time, the next day being a legal holiday, it was not at all improper for the judge to take the matter of receiving this report under consideration until February 23. Pending this consideration, it was not the judge's duty, indeed it would have been improper, for him to have permitted the report to have been published until he had concluded that it was in proper form to be received, and until it had been received, as the report of the grand jury or as an accusation or as an indictment. If it were the latter, it would assuredly be improper to make its contents known by publication until the accused had been apprehended. Any other procedure would convert the newspaper from a beneficent avenue of public thought, intelligence and information, and the agency that has done more to speed the perfection of the proud and intelligent civilization of the nineteenth century than any other force in Christendom, into the warning sentinel of the felon. If the proceedings of the grand jury were to be published before indictments or accusations could be received, or even before warrants could be issued and arrests made thereon, "escape" would be the defendant's plea more often than "not guilty."

It is therefore the policy of the law that these matters should be kept secret until they have passed a certain stage of judicial investigation and official action, and the court's strict obedience to this policy of the law could furnish no ground for public criticism, anathema or villification, and especially when such charges were made for the purpose of influencing the court's action on a matter then pending. The language of exhibit "B" of the information: "If Judge Scott persists in carrying out the intention expressed to District Clerk Ebey of suppressing the report of the grand jury, the act may rightly be characterized as the most flagrant violation of the rights of the people ever undertaken in Oklahoma," was a direct and flagrant attempt by a newspaper publication to force the judge to receive from the grand jury and make public a document the proper form of which he was then judicially considering. The defendants show from these publications that they knew that the matter was under consideration; that they knew that the judge was seriously considering or questioning the propriety of receiving this report. These articles were a newspaper attempt to influence judicial action. This is the most dangerous of all forces that may be brought to bear against the purity and sanctity of judicial action. To attempt to influence the decisions of the courts by scurrilous publications made during the pendency of a proceeding is more dangerous to pure and unbiased judicial action than an effort to break down the court by charges of wrong and infamy. The latter may affect the standing of the court in the community while not particularly affecting the court itself. The former may affect a judgment or a determination which the court should make unbiased and uninfluenced by anything save that which is presented in the cause. With the extraordinary kind of newspaper conduct indulged in by the defendants in this case it was high time for the court to purge this baleful influence from its forum by the severest punishment which a court could inflict, if necessary. The allegation of defendants' answer that these publications were made as a criticism and animadversion on the judge's action, but without any intention or desire to interfere with the offices of the court or to reflect upon the honor or integrity of the judge, in no sense presented a justification for their actions. As was said of such language in the answer of the defendents in the contempt case of the People vs. Stapleton, decided by the supreme court of Colorado, 33 Pac. Rep. 167.

"It would be a very pleasant way to dispose of this proceeding for us to accept those oft-repeated assurances that respondents did not intend or design, by their publications, to convey the impression that this court had been actuated by unworthy motives, or controlled by dishonorable influences, in the Connor case. But it would be an affectation of credulity on our part to profess to believe such assurances. It is the province of the court to interpret and construe written language." * * * "It is an elementary rule of construction that a writing consisting of common words shall be interpreted and construed according to the ordinary meaning of the words employed. The articles complained of contain only common words, and it would be a perversion of their ordinary meaning to hold that the words as used were not designed to charge and impute unworthy motives."

If anything further than the language published was necessary to show the intention and purpose of the defendants in publishing these articles to ascribe to the action of the court dishonorable and corrupt motives and to attempt to influence the action of the court, it was shown by the defendants in open court, when this matter was under consideration, and when the court offered to exercise its magnanimity, even in the face of all the conduct of the defendants, if they would retract these improper publications, when the impropriety of their action was called squarely to their attention. With the falsity of the statements of the publications made being shown by the findings of the court, they stood up in open court and admitted their publication but refused to retract anything therefrom. To say, after such actions that the wrongful conduct and intention of these defendants was not manifest, is an affront to candor and intelligence. There is no question about the wrongfulness of the publications nor of the viciousness of the defendants' intentions.

We decline in this case to give character to a manufactured sentiment by joining in the too often repeated discussion of a perverted application of our benificent heritage of freedom of speech and liberty of the press. During these occasions, when crime stalks abroad cloaked in the garb of liberty, and when the assassin of our highest and noblest institutions of civil government would audaciously bid the hand of Justice bestow reward for punishment too long deserved, we are reminded of the historic words of Madame Roland: "Oh, Liberty, how many crimes are committed in thy name!" and resolve that the shield of the innocent shall not be the weapon of the guilty.

The judgment of the court below is affirmed, with costs.

Scott, J., not sitting; all the other Justices concurring.