State v. Bee Publishing Co.

1. Constructive Contempt: Common Law: Statute. Tlie common law power of the courts to punish for constructive contempts is, in this state, expressly confirmed by legislative enactment. 2. -: Rights oe Litigant. Every litigant is entitled, not only to a just decision of his cause, but to a decision rendered by a court which is, at the time, entirely free from physical and moral coercion. 3. -: Freedom oe Press: Control oe Judicial Action. The press and the public have the right to freely discuss, criticise and censure the decisions of the courts; but they have no right, while a cause is pending, to attempt, by threats or other form of intimidation, to control judicial action. 4. -: Newspaper Corporation. A newspaper corporation which deliberately seeks' to influence judicial action by the publication of articles threatening the judges with public odium and reprobation in case they decide a pending canse in a particular way, is guilty of constructive contempt,

Original jurisdiction. This was a criminal proceeding in contempt, brought on the relation of the attorney general. The offending articles appear in the opinion. The defendants, upon their request, were awarded separate trials, but not as a matter of right. The defendant the Bee Publishing Company answered, admitted the publication; but entered a plea of non possemus, by reason of being a corporation. It also pleaded, in justification, that the matters published were items of news, and of common report at the time of publication. It further pleaded'that the case commented upon in the offending article was res adjudicata. The defendant Edward Rosewater, in open court, admitted the publication of the offending articles, and that he was the editor of the Omaha Bee. He also waived his constitutional right, and consented to be sworn as a witness on behalf of the state. He was sworn accordingly and testified, inter alia, on his own motion and on cross-examination by Mr. Oldham, to the following effect, that is to say: That witness dictated the article first.set out in the information, but had no knowledge of the other articles until after the citation herein was served upon him; that Mr. Connell, of counsel in the case of State v. Kennedy, had shown him his brief for the purpose of editorial comment as witness supposed; and such brief was the occasion of the article which' he had dictated. In general terms, he denied any interest in the transaction but the public good. The object of the articles was to reach public opinion and through it the court. The court held that it would take judicial cognizance of its own records, and that the action of State of Nebraska v. Kennedy was then pending-before the court. Both cases were submitted upon the pleadings and proof and argued together. Bee Publishing Company, defendant, convicted and fined $500 and costs. said: This was an information filed on behalf of the state. The defendants were, respectively, the editor and publisher of the Omaha Bee, a newspaper with an extensive circulation within the jurisdiction of this honorable court. The articles published related to a matter now pending before this court for a determination. They were evidently designed to influence the decision. It mattered not whether they would have that effect. The question was not what would the effect be, but what was their designed effect. In law, every man is presumed to intend the natural and probable consequences of his own acts; and his intent was not to be gathered from his plea of the baby act. I did not mean to would pass very well in the nursery, but it had no place in a court of justice. Ignorantia facti excusat — ignorance of fact excuseth — was hornbook laAV. But the maxim, Ignorantia juris quod quisque tenetur scire, neminem excusat —ignorance of law, which every one is held to know, ex-cuseth no one — was black letter law, founded on the gravest reasons of public policy. If the defendant Rosewater was ignorant of the fact that the case of State v. Kennedy was pending, the ignorance of that fact might excuse him. But he could not be ignorant thereof. He himself testified that Connell had shown him his brief, for the purposes of editorial comment; and that brief had been the basis of the article Avhieh he dictated. The defendant Rosewater, having knoAvledge of the fact, must knoAV the law Avhieh regulated his own conduct. Rosewater Avas the vice-principal of the Bee Publishing Company, and his knowledge was theirs. The liability of a corporaton in a case of this kind was settled in the Massachusetts case cited by the state. It mattered not whether or not the conduct of the governor and the attorney general had been correct. The court would take care of that. Louis XYI. was justly condemned to the guillotine; but that righteous condemnation did not excuse the merciless rabble of Parisian canaille and sans-culottes that clamored for his death in the galleries of the national convention; and sought to forestall its judgment. In the mind’s eye, we might behold the ancient counterpart of the subject of this contempt proceeding when we reflect on another scene which took place about one thousand eight hundred and sixty-seven years ago (according to Usher), and which is being acted this year in a little town of the Bavarian Tyrol — a mob howling for the blood of the Man of Nazareth. The cowardly procurator tried to effect a change of venue, on the court’s own motion, to Herod, tetrarch of Gfalilee. When this device failed, he disregarded the prudent advice of Mrs. Pilate, and yielded to what our friend from Omaha would call an enlightened public opinion. It was the idea of keeping any deliberative body free from this outside clamor that made that great commoner, Thomas B. Reed, threaten to clear the galleries when speakers were applauded. If a plea of res adjudieata could be successfully made in State v. Kennedy, that fact made it no less an action pending. You might as well say that because a common traverse or nil debet could be successfully maintained against a declaration upon an action of debt there was no action pending. The defendant Rosewater said that only four states had sustained actions for constructive contempt in cases of this kind. The speaker had found forty-seven decisions in the states and territories; and had not reached the bottom yet. The state cited: Ex parte Ba/rry, 85 Cal., 603; People v. Stapleton, 18 Colo., 568; In re Chadwich, 109 Mich., 588; People v. Wilson, 64 111., 195; Territory r>. Murray, 7 Mont., MB’,Commonwealth v.Kneeland,20 Pick. [Mass.],206; Myers v. State, 46 Ohio St., 473; State v. Morrill, 16 Ark., 384; In re Woolley, 11 Bush [Ky.], 110; In the Mailer of Moore, 63 N. Car., 397; Telegrmn Co. v. Commonwealth, 172 Mass., 294; State v. Circuit Court, 38 L. R. A., 558; Blackstone, book 4, p. 283; Respublica v. Oswald, 1 Dali. [U. S.], .319; Ex parte Jones, 13 Yes. [Eng.], 237; American Law Review, May, 1900; State v. Fmilds, 17 Mont., 140. The authority to punish for contempt is a necessary-incident, inherent in the very organization of all legislative bodies, and of all courts of equity, independent of statutory provisions. Tenney’s Case, 3 Post. [N. H.], 162; Stale v. Matthews, 37 N. H., 453; Anderson v. Dunn, 6 Wheat. [U. S.], 204; Stale v. Copy, 15 N. H., 212; Mariner v. Dyer, 2 Greenl. [Me.], 165; Stewart v. Blaine, 1 McArth. [D. O.], 453; also Stewart v. Ordway, decided therewith; Tates v. Lansing, 9 Johns. [N. Y.], 396; 1 Burr’s Trial, 352; Ex parte Adams, 25 Miss, 883; People v. Freer, Coleman & Caine’s Cases [N. Y.], 283. Stewart Rapalje, a learned law writer of New York city, published in 1S84 a work on contempt, in which he says: “It is conclusively settled by a long line of decisions that at common law, all courts of record have an inherent power to punish contempts committed in facie curice, such power being essential to the very existence of a court as such, and granted as a necessary incident in establishing a tribunal as a court. And this power extends to the punishment of willful contempts committed by corporate bodies as well as individuals. Each superior court being the judge of its own power to punish contemnors, no other court can question the existence of that power, and the facts constituting the contempt need not be set out in the record.” Rapalje, Contempts, p. 1. Publications which have a tendency to prejudice pending causes can not be permited. Pool v. Sachcverel, 1 . Williams P. [Eng.], 675; Farley’s Case, 2 Ves. Sr. [Eng.], 520; Anonymous, 2 Atkyns [Eng.], 469; Respiiblica v. Oswald, 1 Dali. [U. S.], 319; Bayard v. Passmore, 3 Yea. [Pa.], 438; In the Matter of Sturoc, 48 N. H., 428. In Pool v. Sacheverel, supra, an advertisement in a • newspaper, offering a pecuniary reward for legal proof of marriage, was held contempt, as tending to subornation of perjury. In Sturoc’s Case, supra, the offense was a written communication left at the office of a newspaper published at the shiretown. The article appeared the same week that the nisi prius court was in session, and at that session the cause was pending which was the subject of the article. The editor testified that the writer said he was not particular that • the article be published that week, and did not care if it was not published at all. The defendant disavowed any ill-intention; denied that he knew the action was pending at that session; and the court gave him full credit, but imposed a fine of $30 to show that such publications, in such circumstances, were illegal and not to be tolerated. The intention of a publication will not justify it, if it be, in the opinion of the court, contempt against the court. People v. Freer, Coleman & Caine’s Cases [N. Y.], 283. appearing in his own behalf, said: The proceeding in contempt was an arbitrary one, borrowed from monarchical times and countries; it was inimical to the genius of our government and foreign to the spirit of our institutions. There never had been an original proceeding in contempt before the supreme court of the United States, or before forty of the supreme courts of the states of the Union. A court should be chary in the exercise of a power whose abuse might tend to cripple the power of the press as a guide of public opinion. The press had a sacred duty to perform in such matters, for a faithful performance of which it would be held to a strict account before the great tribunal of mankind. If an article was not libelous, disrespectful or meddlesome per se, and if this character did not appear upon its face, unaided by the innuendoes of a criminal pleader, the defendant should not be convicted of a contempt. Such was the sound rule, and such had been the former holdings of this court. The defendant admitted that, if an action was pending before the court, a journal had not the right, directly or indirectly, to attempt to influence the decision of the court. But in this case no action was pending. What was the history of the transaction? The supreme court, in Stale v. Moores, 55 Nebr., 480, had declared that part of the act of 1897 (Compiled Statutes, ch. 12a) which vested in the governor the power to appoint police commissioners in cities of the metropolitan class void. It had drawn a red line through that part of the law, and it was a complete erasure; that part of .the act no longer existed. The decision was res judicata. In State v. Kennedy there was an attempt to revive a question forever put to rest by the decision in State v. Moores, supra. If that case was still pending, as much any other case heretofore decided by this august tribunal might be regarded as pending. It was conceded by the state that a journal might comment upon a case after the decision had been made, being answerable only in action for libel, where it could have the benefit of a trial by jury. If State v. Moores could still be regarded as pending, then any person could commence a proceeding to open up any ancient case; and have any person commenting upon this extraordinary proceeding committed for contempt. If any one was guilty of a contempt of this-court, it was the governor of the state, who, in the face of a decision made two years ago, had appointed a board of police commissioners without authority of law, and the attorney general, who had commenced the strange proceeding in Slate v. Kennedy. The legislature of 1899 had created an insurance bureau, making the governor insurance commissioner, with power to appoint a deputy. This law your honors have decided unconstitutional. His former deputy is now an officer of your court. Why does his excellency not appoint a new deputy and commence quo warranto proceedings against the auditor? If he did this, would the editor of the Omaha Bee be committed as for contempt for commenting on the absurdity of such proceedings? This court, by repeated rulings, had held itself to be a court of enumerated powers and limited jurisdiction. It was the creature of the constitution. It possessed no power not given by its creator or which was not necessarily incident to power actually granted. The court had no common law jurisdiction in contempt cases. Kilbourn v. Thompson, 103 U. S., 168. said in part: The court could go to its own volumes for precedents; but these precedents did not support the contention of the state. They said in so many words that, if an article was not libelous on its face, — if it required an innuendo to apply it to the court, no contempt would lie. The attorney general did not call attention to these decisions, but counsel for defendant would, and cited: Rosetoater v. State, 47 Nebr., 630; Percival v. State, 45 Nebr., 741. The first case cited by the state is People v. Wilson, 64 111., 195. The deputy attorney general did not note the fact that that case had been overruled in Storey v. People, 79 111., 45. . on behalf of the state, said the case was presented to the court by the defendants on false issues. It had been said that it involved the liberty of the press. But it did nothing of the kind. What was meant by the liberty of the press? Our constitution told us in section 5, article 1. The liberty of the press then was no greater than the liberty of the individual, and that liberty was to speak, write and publish on all subjects, being responsible for the abuse of that liberty. It was in contradistinction of the system, de-' scribed by George Kennan as existing in Russia, where they had a press censor who culled manuscripts before they went to press. The defendants in this case had Avritten and published without let or hindrance, so far as. this case was concerned; and, therefore, the liberty guaranteed to them by the constitution had not been abridged or interfered with in the least. The question to be determined was not, therefore, whether these defendants might print and publish, but whether they had abused this liberty. If they had, and had thereby violated a law of the state, why should they not be held responsible? Did they belong to a privileged class, a class which may violate the law with impunity? They may have formed that opinion. If so, it was time they were awakened from this dream, and brought face to face with the reality that they had no license to trample upon the law and to violate the rights of parties litigant. The law against contempt was not, and never was, a part of kingly prerogative. It was not a judge-made law. On the contrary, it was as old as magna charta, had its birth with the choicest principles of common law, and was as salutary as any other of the great principles of institutional law. The power of courts of superior jurisdiction, created by the constitution, to punish for contempt is necessarily inherent in such court. “A court,” said the supreme court of Wisconsin in State v. Circuit Court, 38 L. 11. A., 554, 558, “without this power would be at best a mere debating society, and not a court. These principles have been recognized in all courts from time immemorial.” Blackstone, in his fourth book, page 238, mentioned among the instances of contempt of court those committed away from the presence of the court by parties writing or speaking contemptuously of the court or judges acting in their judicial capacity. The supreme court of New Jersey, in In re Cheeseman, 49 N. J. Law, 115, said that words uttered or published outside of the courts and designed to bring contempt upon the courts in the exercise of their judicial functions, or to pervert, in any pending cause, the due administration of justice, have always constituted a contempt of court. Judge Freeman, one of the most noted American law _ writers, said in a note to Percival v. State, 50 Am. St. Rep., 573: “It is also conceded that the efficiency of the courts and the stability of government, at least among a free people, are dependent upon their confidence in the integrity of the courts and their ability and willingness to deal impartially with the questions committed to their consideration; and that to impute to the courts, or the judges presiding over them, corrupt motives in the discharge of their judicial functions, in cases still pending before them, is a contempt of court, and may be punished as such.” The attorney general said he could not better portray the viciousness of the procedure adopted by the defendants than by quoting the following apt language. Mr. Justice Brown, of the supreme court of the United States, in an address recently delivered before the New York State Bar Association, and published in the May number of the American Law Review, quoted Franklin’s arraignment of this usurped power of the “court of the press,” Franklin said: “It may receive and promulgate accusations of all kinds, against all persons and characters among the citizens of the state, and even against all inferior courts; and may judge, sentence and condemn to infamy, not only private individuals, but public bodies, with or without inquiry or hearing, at the court’s discretion. This court is established in favor of about one citizen in five hundred, who, by education or practice in scribbling, has acquired a tolerable style as to grammar and construction. * * * This five-hundredth part of the citizens have the privilege of accusing and abusing the other four hundred and ninety-nine parts at their pleasure; or, they may hire out their pens and press to others for that purpose.” After saying that the court is not permitted to know the name of his accuser, or of seeing his witnesses, he says: “Yet, if an officer of this court receives the slightest check for misconduct in this his office, he claims immediately the rights of a free citizen by the constitution, and demands to know his accuser, to confront the witnesses, and to have a fair trial by a jury of his peers.” Justice Brown adds: “As this article was written 110 years ago, it is evident that the abuses of which we complain are of long standing.” 34 Am. Law Review, 323. With regard to the power of the court the attorney general said: This court was not compelled to look to the common law only for its power to punish the defendants if they are found guilty of contempt. The people of this state, through their legislature, have conferred that power in express terms upon your honors. Section 669 of the Code says that “Every court of record shall have power to punish by fine and imprisonment, or by either, as for criminal contempt, persons guilty of any of the following acts: * * * Any willful attempt to obstruct the proceedings, or hinder the due administration of justice in any suit, proceedings or process pending before the courts.” What was meant by the due administration of justice? It was administration, according to the rules that have generally obtained in courts of justice. Both parties must have a right to be heard. Whatever was intended to influence the decision must be presented in court in accordance with rules established for the government of such matters. No analysis was necessary of the articles alleged to be contemptuous in this case to show the purpose for which they were published. They could have but one purpose, and that was to create a prejudice in the public mind against one of the parties to a pending suit — to force the court to render a certain' decision therein and to give the public to understand that the court, if it decided in favor of one of the parties, would be influenced by improper motives. It was part of that purpose to impute scorn and reproach to two of the judges composing this court, and thus lessen the respect in which this court was held by the people of the state, and to destroy the confidence and integrity, the ability and the willingness of the members of this court to deal impartially with questions committed to its consideration. It was not meant that the articles had that effect. But they did not necessarily have to have such an effect in order to be contemptuous. They were calculated to have that effect, and could have been written for no other purpose. And hence they come within all the definitions of what constitutes contempt of court.