DocketNumber: No. 12000
Citation Numbers: 84 Wash. 345
Judges: Main
Filed Date: 3/10/1915
Status: Precedential
Modified Date: 8/12/2021
This is a contempt proceeding which grew out of the following facts: On or about November 17, 1913, a grand jury was impaneled by the superior court for What-com county, Washington. This grand jury remained in session until a time subsequent to the happenings out of which this proceeding arose. On the 26th day of November, 1913, a subpoena duces tecum, directed to L. H. Darwin, state fish commissioner, was issued. This subpoena directed the fish commissioner to appear before the grand jury on
“We are of the opinion that your own rights in the matter would be amply protected by calling the attention of the grand jury to section 5225, Rem. & Bal. Code, and stating to them that you feel it your duty to claim the privilege of refusing to divulge the matters required of you unless the court should order you so to do.”
On December 4, 1913, the fish commissioner appeared before the grand jury in response to the subpoena which had been served upon him, and there exhibited the letter which he had received from the Attorney General. He stated, in response to a question, that he was perfectly willing to testify should the court so order, and that all he cared for the order of the court was to protect himself against the $1,000 penalty imposed by statute. It appears that thereupon the fish commissioner was excused until the court order which he referred to could be secured. During the afternoon of this day, the prosecuting attorney, by affidavit, submitted the facts to the Honorable Ed. E. Hardin, one of the judges
On the morning of December 5, and before the time fixed for the fish commissioner to appear before the grand jury on that day, there was published in the American-Reveille, a daily newspaper, of which the defendant is editor in chief and manager, an editorial which contained some comment upon the proceedings wherein the fish commissioner was directed to testify before the grand jury, or show cause why he should not be punished for contempt for failing so to do. The publication of this editorial was, by the trial judge, conceived to be contempt of court. On December 6, 1913, by order of Judge Hardin, this contempt proceeding was instituted by the filing of an affidavit by the prosecuting attorney. The defendant was cited to appear and show cause why he should not be punished for contempt of court in publishing
The controlling question is, whether the editorial referred to was a comment upon a proceeding then pending in court. It will be assumed, for the purposes of this opinion, that the editorial was contumacious, if at the time of its publication an action was pending in court upon which there was comment. If no proceeding were pending, it will hardly be contended that the article published constituted a contempt. If a proceeding were pending, it was the one relative to the order directing the fish commissioner to appear before the grand jury and testify, and submit his books for examination, or show cause why he should not be punished for contempt. The question then is, whether the action was pending when the publication took place. The only purpose of the proceeding was to secure an order of the court and thereby exonerate the fish commissioner from liability under the statute on account of disclosing confidential information. The fish commissioner was at no time unwilling to testify. When first called before the grand jury he declared his willingness to testify. To others he expressed the same attitude. It is true that, upon the trial, he testified that, if any one interested in the fish business had appeared and desired to contest the granting of the order on the morning of December 5, he would have permitted him to do so. The order, however, recited, that, on the previous day when it was entered, the fish commissioner was present and consented thereto. Upon the trial he testified that he was not present when the. affidavit was presented to the court and the order made. The order was secured at his instance and for his special protection. The
Some point is made of the fact that the fish commissioner upon the trial testified that, if any one interested in the fish business had appeared on the morning of December 5 before he was called before the grand jury, and desired to contest the order, he would have permitted him to do so. It is difficult to see how, even if such person had appeared, that a substantial contest could have been waged, either by the fish commissioner, or any one on his behalf, over an order which was secured at his special instance and request, and which recited that he was present when it was entered, and that he consented thereto.
When the article complained of was published, there was no substantial pending litigation. There was no party to a proceeding which the article would have a reasonable tendency to cause to be substantially prejudiced in the conduct of a cause. Neither can the article be said to substantially interfere with the due administration of justice, there being then no pending litigation.
In the recent case of State ex rel. Dorrien v. Hazeltine, 82 Wash. 81, 143 Pac. 436, the defendant was charged with contempt by reason of the fact that he published, or caused to be published, an article in his newspaper which was claimed to be comment upon a proceeding then pending in court. The doctrine was there announced that the matter charged must have a reasonable tendency to cause substantial prejudice to a party in the conduct of an action, or to substantially interfere with the due administration of justice. The essence of the offense is conduct reasonably calculated
“The essence of the offense is conduct reasonably calculated to produce an atmosphere of prejudice where a pending case is to be tried. King v. Titbits, 2 British Ruling Cases 469. But the better view is that one will not be punished for a technical contempt. The matter charged must have a reasonable tendency to cause substantial prejudice to a party in the conduct of the action, or to substantially interfere with the due administration of justice. Hunt v. Clarke, 58 L. J. (Q. B.) 490. The basis of this rule is that a proceeding for constructive contempt is quasi criminal, and every reasonable doubt will be resolved in favor of the accused. Hutton v. Superior Court etc. of San Francisco, supra. [147 Cal. 156].”
Under the doctrine of that case, the present action cannot be maintained. In support of the contention that an action was pending when the editorial was published, the case of State v. Tugwell, 19 Wash. 238, 52 Pac. 1056, 43 L. R. A. 717, is cited. In that case, an opinion by this court was filed on February 18, 1898. On February 24, the defendant caused to be published a contumacious article. On February 28, a petition for modification of the opinion of the court was filed. Thereafter, and on March 2, 1898, an opinion of the court was filed denying the petition for modification. It was there held that, since the publication occurred during the time in which a litigant had a right to'file a petition for rehearing, an action was pending in court. But that case does not reach the facts in the present case. Here, as already stated, when the publication took place, there was no substantial litigation pending. The order was desired and secured for a special purpose, that of protecting the fish commissioner from liability under the statute. This purpose had been accomplished. Further controversy over the matter was hardly within the range of possibility, if, indeed, it can be said that there was any pending controversy at any stage of the proceeding.
The judgment will be reversed, and the cause remanded with direction to dismiss the proceeding.
Fullerton, Mount, Crow, and Ellis, JJ., concur.