In re Millington

1. Courts, Power of, to Pwnishfor Contempt. Courts of record have an inherent power to punish for disorderly conduct in the court room, resistance of their process, or any other interference with their proceedings which amounts to actual contempt. 2. ---- Limit of Power. Sec. 2 of ch. 28, Comp. Laws 1879, places no limit on the power of the district court in matters of contempt, but only upon that of the district judge at chambers. 3. Jurisdiction; Terms of Court; Habeas Corpus. On May 13, 1880, an order was entered in the district court of Cowley county adjourning the court until Monday, May 17th. That was the day fixed by law for the commencement of the term of the district court of Sedgwick county, a county in the same judicial district. That term commenced on that day, and the regular judge being absent, a judge pro tern, was elected, who held court on both the 17th and 18th. The regular judge was present in Cpwley county, and assumed to hold court pursuant to adjournment on the 17th and 18th, and at the time the district court of Sedgwick county was in session. Held, That such order of adjournment was void; that the term of the district court of Cowley county was, on those days, suspended or closed by the commencement of the term in Sedgwick county; and that the proceedings on those days in Cowley county were extra-judicial and void, and that a defendant tried and sentenced upon those days was entitled to a discharge upon habeas corpus.

Original Proceedings in Habeas Corpus. Petition for a writ of habeas corpus, filed in this court on the 28th day of May, 1880, by Daniel A. Millington, who also appealed from the judgment against him ip the court below. On the 17th day of May, 1880, Hon. W. P. Campbell, judge of the thirteenth judicial district, filed in the office of the clerk of the district court of Cowley county, a certain complaint against Millington and another, in words as follows: (Court and title omitted.) Now, on this 17th day of May, A. D. 1880, there being reasonable grounds for believing that Daniel A. Millington and Edwin P. Greer are the editors, publishers and proprietors of a weekly newspaper called the Winfield Courier, published and of general circulation in the county of Cowley ,• and that heretofore, to wit, ■on the 12th day of May, inst., the said Millington and Greer ■caused to be published in said paper several articles of and ■concerning a certain case then pending and undetermined in this court, in which the state of Kansas was plaintiff and "Charles H. Payson was defendant, and, among other things, then and there published the following language, viz.: “The Payson Case.— Probably no case was ever tried in this county ■which has created so much interest as the trial of C. H. Payson, just terminated, with the verdict of guilty, in the district court. After the verdict, large squads of men were gathered on each corner, discussing with much warmth, and criticizing scathingly those who took part in the trial, either as witnesses, attorneys, jury, or judge. The majority seemed to sympathize ■■strongly with Payson — eulogized his plea in his own defense as one of the best forensic efforts ever heard; thought that though Payson was probably guilty of something bad, he was not guilty of the offense charged in the .indictment; and that if he was guilty of another offense, the prosecuting witness was equally guilty of the same offense. They criticise the county attorney for being too zealous in the prosecution, the judge as acting as prosecuting attorney, and ruling out evidence supposed to be favorable to Payson. The minority seemed to be equally sure that Payson was guilty as charged, and had been given a fair trial; that Torrance had done his whole duty, and nothing more; that the judge was fair and impartial, and that the jury could not have done otherwise than it did. The new jury of the whole public will probably never be able to agree.” And again, the following language, viz.: “The Court as Attorney. — The boys tell' us that in the trial of Pay-son, when the.witness Goodrich was on the stand for cross-examination, Judge Campbell took the witness out of the hands of the attorneys and ■cross-examined him for an hour, in an effort to make him contradict himself. This reminds us of a case before Judge Davis, of Illinois, in which the attorney for the prosecution demanded that the case proceed to trial at ■the time set, though, the attorney for the defense was absent. Judge Davis said, ‘ The case could go to trial, but would mention that a similar case happened in LaSalle county, and this court looked to the interest of the absent attorney for the defense, and,’ said Judge Davis, ‘you remember that ■we beat’em.’” And again, the following language, viz.: “County-Attorney Torrance has won additional laurels in the successful ■ conduct of the Payson case. Some are inclined to divide the credit equally between the prosecuting attorney and the judge, but we assert, and we will ■stick to it, that Torrance was the main prosecutor.” The court being of the opinion that thp publications, such ■as above set forth, concerning a case pending in court, are calculated to obstruct and embarrass the administration of justice, have a tendency to prejudice the public concerning the merits of the case, and to weaken the influence and authority •of, and destroy public confidence in, the tribunal trying the •cause, and as such are a contempt of court, therefore, ordered •that an attachment issue forthwith against the said Milling-ton and Greer, and that they be brought before the bar of this court and be required to answer in writing and under-oath, the matters herein set forth and charged. On the same day the respondents were arrested upon an attachment issued in pursuance of the foregoing order, and having been brought to the bar of said court, they filed a verified answer to the complaint, as follows: “ In the matter of Daniel A. Millington and Edwin P. Greer .- Now come the said Daniel A. Millington and Edwin P. Greer,, editors and publishers of the Winfield Courier, and for answer admit that the said Millington caused the language-complained of to be published in said paper of May 13th inst. “For further answer, they say that the said Millington is-the responsible editor of said paper, and that the said Greer is not to blame for the appearance of the said language; that it was believed by the said Millington that the case commented on was not then pending in the court, but had been disposed of, and could not be affected by such comments; that he had no intention to embarrass or obstruct the administration of justice, or to prejudice the public concerning the merits of the case, or to weaken the influence, the authority of, or destroy public confidence in, the tribunal, trying the-cause. It is his opinion that the two articles first quoted in the complaint, are only statements of opinions expressed of the question, on which he withheld his own views, and that the last quotation is a harmless joke, which would have no-tendency to prejudice any one. “ The said defendants disclaim any intention to do or publish anything in these matters which is not proper in legitimate journalism.. “ And the said Daniel A. Millington and Edwin P. Greer respectfully submit, that this court and the judge thereof have no jurisdiction to try and punish them for the supposed offense set forth in the order for their arrest.” Thereafter on that day, Millington testified substantially as follows: . “My name is Daniel A. Millington. I am one of the respondents in this proceeding. I am the responsible editor and manager of the Winfield Courier, and am responsible for the publications complained of therein. Edwin P. Greer is -local editor, but is not responsible for the management of the Courier. I wrote the first two articles complained of, but did not write the third; that was written by Edwin P. Greer, but submitted to me and published with my knowledge. I did not attend court. I did not know what the testimony was, nor what took place on the trial of Payson, except what was generally talked on the streets and elsewhere as having taken place. I heard on Monday that a motion for a new trial had been made, and on Tuesday morning I heard that the motion had been overruled. At the time the paper was published, I supposed that the case had been disposed of. I heard after the paper was made up and in press, that the motion was set for hearing oh Thursday. The paper was really printed on Wednesday, about two o’clock p. M., and a portion, of the íssuq was placed in the postoffice that night, although the paper was dated Thursday, the 13th. My belief was that. Payson was guilty; that he had a fair trial. I did not think that there was anything in the articles complained of, calculated to embarrass the court, or which could be construed as-reflecting on the judge or jury. I thought that part referring to the court as prosecutor was a mere joke, and my motive was not to reflect on the court or judge; and all the articles were published as matters of news, and not to reflect upon, or detract from any one. I hardly think that the articles can be construed as being published as a joke at the expense of •the judge of this court. I do not think that the article can be construed as a statement that the court acted as prosecutor. I was asked what the punishment would be — I don’t know by whom — but I said I thought that would be the last business transacted in court; I knew that was the usual way.” The Courier of date May 13 was then introduced in evidence, and it was admitted that the article on the third page, entitled, “The Payson Case,” was written by Edwin P. Greer, who attended court during the greater part of the trial, and was by him submitted to Millington. On the 18th day of May, 1880, judgment was rendered in . said action, as follows: “It is the judgment of the court that the respondent, Daniel A. Millington, pay to the state of Kansas a fine of two hundred dollars, with costs, and that he stand committed to the jail of Cowley county until the fine and costs are paid. At the request of the respondent, execution is stayed on this judgment for ten days, to give time to the respondent to make a case and file a petition for review in the supreme court.” The opinion herein was filed September 21, 1880. 1. In imposing a fine of two hundred dollars against the respondent, the district court clearly exceeded its jurisdiction. It may be urged that courts have an inherent power to punish for contempts. This may be true, in the absence of any legislative provision on that subject, but the people of this state, in adopting organic laws, and in their legislative enactments, seem to have fully realized the danger and disadvantages of such a system as is implied in introducing the arbitrary discretion of the judge, in place of fixed rules prescribed by the legislature, and in this way leaving the members of the community without an established guide for their actions, or a reliable bulwark against the prejudices of individual judges. The district courts of this state have only such jurisdiction or power as may be provided by law. (Const, of Kas., art. 3, §6.) The legislature has provided by statute for the jurisdiction of the district courts within their respective districts in cases of contempt, by fixing the punishment at a fine of not more than one hundred dollars and imprisonment, or either. (Comp. Laws 1879, ch. 28, §2.) 2. Provisions of the statute excluding from the benefits of the habeas corpus act, persons committed of detained by virtue of the judgment of a competent tribunal, only apply where the court had jurisdiction to render the judgment complained of. Jurisdiction of the person and of the subject-matter are not alone conclusive; but the jurisdiction of the court to render the particular judgment is a proper subject of inquiry ; and if the record presents the question, it must be determined whether the court had jurisdiction and the judgment was warranted by law. In this state, the character and extent of all punishments are prescribed by statute, and no court can give a judgment or pronounce a sentence, valid for any purpose, in open and palpable violation of a positive statute; and a sentence not warranted by law, or in excess of the punishment .so prescribed, is absolutely void, and a party held by virtue of a judgment so pronounced is entitled to be released on habeas corpus. (5 Cold. 326; 5 Hun, 317; 60 N. Y. 559; 49 Mo. 291; 64 id. 205; 4 Wis. 522; 34 id. 177; 44 id. 426; 16 N. Y. S. C. E. 569.) 3. At the time of the commencement of this proceeding and the rendition of the judgment, the May term of the district court of Cowley county had terminated, and the district court of Sedgwick county was in session by operation of law. (Comp. Laws 1879, ch. 28, § 26.) The petition for the writ, and the agreement of the county attorney of Cowley county, show that the district court of Sedgwick county was actually in session on the 17th day of May, 1880, the day fixed by law for holding said court, and that a judge pro tern, was elected as provided by law.- (Comp. Laws, 1879, ch. 28, §§4, 5, 6, 7, 8.) Two terms of the district court cannot be held in one district on the same day. (lKas.86; 1 Scam. 555; 2 id. 227; 13111.671; 2 G. Greene, 559.) Sec. 29, of said ch. 28, provides for the holding of special and adjourned terms, as they may be deemed necessary. This was not an adjourned term, because the court had no power to adjourn the same into the time prescribed by law for holding another court in the same district. It could have adjourned over and beyond the Sedgwick court, which we think, in the language of this court, was an “intervening obstacle.” (8 Kas. 358.) The regular session of the Cowley district court closed Saturday, May 15, and of course the court held on Monday, the 17th, was not a special session, for it was impossible, for the notice of a special term, as required by law, was not given and could not have been. 4. But we submit that the publications complained of do not constitute a contempt. It is very clear from the first one that it is a statement of public sentiment as expressed on both sides of the trial of Payson, and there is no expression anywhere that was in the least calculated to embarrass the administration of justice, or that had any tendency to prejudice the public concerning the merits of the case, or in anywise affect the court or the jury which was out of the case. (Const, of Kas., §11 of Bill of Rights; 79 111 45; 6 Iowa 245; 40 id. 207.) The answer of respondents fully exonerates them. In proceedings for an alleged constructive contempt, if the person charged fully answers all the charges against him, he will bedischarged. (41Ind. 464, and cases there cited; 47 id. 528.)