State Board of Law Examiners v. Hart

Criticism o£ Court’s Rulings. Every citizen has the right to comment upon and criticise without any restriction the rulings of a judicial officer in an action which has been finally determined, and not be answerable therefor otherwise than in an action triable by a jury. Criticism by an Attorney. An attorney has such right, and can be disbarred for such comment or criticism, if at all, only when it is so base and vile as to establish clearly his bad character and his unfitness to remain a member of an honorable . profession. Disbarment of Attorney. An attorney may not, however, Insult the judicial officer by words written or spoken addressed to such officer personally because of the latter’s official act, though in a matter fully ended; and, if he does so, it may constitute a sufficient cause for his disbarment. Suspension of Attorney. The accused herein having, written a personal letter to the chief justice of this court, impugning both the intelligence and the integrity of said chief justice and his associates in the decisions of certain appeals in which he had been attorney for the defeated litigants, it is held that he was thereby guilty of professional misconduct, for which he is suspended from practice for the period of six months.

Verified accusation of the secretary of the state hoard of law examiners charging Francis B. Hart, who for more than thirty years had been an attorney at law of the state of Minnesota, with the wilful violation of his official oath as such attorney at law and of the duties imposed upon him by the state statutes to (1) observe and carry out the terms of his oath, and (2) maintain the respect due to courts of justice and judicial officers. It was charged that such violation was committed by composing and publishing a letter over his own name addressed to the chief justice of this court by name and official title, which was couched in insulting and contemptuous language, and purposely so worded as to cause those persons who might read the letter, and believe the statements and insinuations contained therein, to doubt the honesty and integrity of this court, the justices composing the same, and of certain judges of the district courts of the state. That among many charges and insinuations the letter contained the following language: On Jan. 1, 1900, Mitchell, the last of the old guard, retired by expiration of his term, and three new members constituting a majority of the court, were installed. This date and event marks the finis of the old regime and the dawn of a new judicial epoch in Minnesota. The sharp contrast between the lofty ideals which actuated the old court, and the predominating tendencies' of the reorganized, court can be gathered from the case of Minneapolis Trust Co. v. Menage, reported (1) in 73 Minn. 441; (2) 81 Minn. 186; (3) 86 Minn. 1. That the-accused inserted in said letter a long, garbled and one-sided statement purporting to be a fair history of that case, interspersed with comments laudatory of the first decision of the supreme court in the case, which decision was favorable to the side which had employed the accused as attorney, and derogatory and condemnatory of the two later decisions therein, which were adverse to the interests represented by him, and ended his pretended account of the case with these words: We do not here and now charge, insinuate, or suggest, that the decisions were prompted by interest, or promise, or hope, or fear. We do submit that on the record, and by the record, the conclusions arrived at and acquiesced in are illogical, illegal, unsupported, and indefensible from any rational standpoint; that from want of understanding, or the abuse of it, the cause has not been judicially considered or determined. That under “second specification,” the accused inserted what purported to be a fair and correct statement of the facts and law involved in the case of Griswold v. McGee, 102 Minn. 114, and in commenting on said decision stated that “You” (referring to the chief justice, to whom the letter was addressed, and the other justices constituting this court) “assigned it,” (meaning the property involved) “to one who has no better right to it than the burglar to his plunder. It seems like robbing a widow td reward a fraud, with the court acting as a fence or umpire, watchful and vigilant that the widow get no undue advantage.” That in his discussion of the last decision in the case of Minneapolis Trust Co. v. Menage, the accused insinuates and in effect charges that the decision made by the district judge who tried the case, whose decision was affirmed by this court, knowingly decided the case contrary to the evidence given on the trial. That in his “second specification” he accused the district judge whose decision was affirmed by this court with having decided the case of Griswold v. McGee “without giving the question” presented for settlement “any consideration whatever.” That_ this letter, though formally addressed to the chief justice of the supreme court, was really intended for publication in newspapers and otherwise, and to create in thé minds of the general public- distrust in this court and other courts of Minnesota and to lead the general public to believe these courts were corrupt. That to cause the general public to believe the justices of the supreme court could be impeached under the state laws for corrupt acts and that impeachment proceedings were.about to be begun, the letter began with this language: Sir: The organic law- creating the tribunal over which you now preside renders its constituent membership immune from civil liability for any erroneous decision officially made, even though it be corrupt. The sole remedy is by impeachment. Preliminary to moving articles, I submit three specifications : . That to cause the general public to believe that grounds for the impeachment of said justices existed and were truthfully stated in this letter, the accused composed and published another letter, addressed to the governor of the state, by name and title, as follows: December 7, 1907. Gov. John A.-Johnson, Executive Office, Capitol Building, St. Paul, Minn. Dear Sir: Enclosed I hand you copy of a letter this day mailed to Hon. Charles M¡ Start, chief justice of the supreme court of the state. It explains itself. My object in preparing the paper is to present in an orderly manner the character of alleged grievances • existing against the court, and to advise the court thereof, that proper -inquiry may be made (1) as to whether they are in fact grievances. That is, are the decisions referred to, or any of them, right? (2) -If not right, is it possible in the making of them for the court to have been honestly wrong? (3) If not, is such flagrant disregard and violation of the rights of litigants, without warrant of law or any apparent honest purpose or excuse a just cause, of impeachment ? It is a serious matter, and, therefore, an important one. I leave it to your good judgment as to what shall, at this time, be- done in the premise. Political complications may suggest themselves, but it is not a question of politics. It goes to the. integrity and stability of the state if the members of the court cannot be “men learned in the law,” as required by the constitution, or honest, as required by good morals, and if there exist good prima facie reasons for challenging them in either regard, the matter should receive prompt attention. Presumptions undoubtedly exist in their favor, but if the cases cited render such presumptions violent and absurd, they should not stand in the way. The attorney general’s office, or the judiciary committee of the house, or both, are your properly constituted legal advisers in this matter. You surely will not act hastily, and as the merits of the charges rest entirely upon what the court itself has said and done, it is not easy for you to act unjustly. If no proper motive for the decisions can be gathered from the decisions themselves, it seems to me that impeachment would be proper, leaving the senate free to make inquiry as to motive outside of the decisions, and I am constrained to think that not a little evidence can be adduced relevant thereto. Very sincerely yours, (Signed) Francis B. Hart. That as the accused well knew aCthe time he composed and published these letters, no grounds for questioning the honesty and integrity of this court, or of any justice thereof, or for the impeachment of any justice thereof, existed in either of the acts or decisions of the court specified by him. That as he well knew, these letters stated no facts which would justify the taking of any official action thereon by the governor. That these letters were not composed or published with the intent or expectation that official action for the impeachment of said justices would be taken, but were written and published for the purpose and object of creating distrust in all said courts, justices and judges who had decided causes submitted to them adversely to the interests represented by and contentions of the accused. That about December 7, 1907, these letters were furnished by the accused to certain newspapers in the state for publication and general distribution, and after being so furnished the letter addressed to the governor was sent by mail to his office and a carbon copy or duplicate of the letter addressed to the chief justice was sent in the same manner to his office. That the copy so sent to the chief justice was not sent to him for any official or other action thereon, but was so sent for the purpose- of -insulting the chief justice and the other justices of this court. The accusation prayed for the removal of the accused from his office as .attorney at law of the state. An order having been made that the accused appear before the •court and answer the accusation, the chief justice addressed a letter to the governor stating that the justices “deem themselves disqualified within the meaning of section 3,- article 6, of the state constitution, to hear and determine” the matter, and requested him to assign five judges of the district court to sit in their'place. Thereupon the governor appointed the five judges named in the footnote on page 108 to constitute a special supreme court to hear and determine this prpceedi'ng. On the return day of the order the accused filed objections to the accusation on the grounds that the facts stated did not warrant the relief asked, and it affirmatively appeared from the accusation that the accused observed the obligations of his official oath as an attorney and rendered full obedience to all requirements imposed on him by the statutes of the state. These objections having been overruled the accused entered an oral plea of “not guilty.” A referee was appointed to take and report the testimony, and after, he had made his report, the matter was argued before the special court. If, as charged, the object and intent of the accused in preparing and publishing the letters, was to create in the minds of the public the belief that the justices of the supreme court are corrupt, we can conceive of no act which an attorney at law could commit by which he would more directly and emphatically violate his oath to conduct bimself “with all good fidelity” to the court, or be a more direct and emphatic breach of the obligation imposed upon him by our statutes, to “maintain the respect due to courts of justice and judicial officers.” Nor can we conceive of any act of which an attorney at law can be guilty, more dangerous to the peace and good order of the community than a wilful attempt to cause the people to beHeve that .the only officers to whom a final appeal can be made for the maintenance of rights and the redress of wrongs are corrupt and unreliable. Fidelity, as defined in the Century Dictionary, means: 1. Good faith; careful and exact observance of duty or performance of obligations; as conjugal or official fidelity. 2. Faithful devotion or submission; unswerving adherence; close or exact conformity; fealty; allegiance; as, fidelity to a husband or wife, or to a trust; fidelity to one’s principles or to instructions; the dog is the type of fidelity. 3. Faithful adherence to truth or reality; strict conformity to fact; truthfulness; exactness; accuracy; as, the fidelity of a witness, of á narrative, or of a picture. Respect, as defined by the same authority, has many meanings, those applicable here being: 2. * * * Consideration. 3. Circumspect behavior or deportment; decency. 4. The feeling of esteem, regard or consideration excited by contemplation of personal worth, dignity or power. 5. Courteous or considerate treatment; that which is due, as to personal worth or power. 6. Expression or sign of esteem, deference, or compliment; as to pay one’s respects to the governor; please give him my respects. The “fidelity” and “respect” of the accused is shown by the quoted parts of his letters. As we understand the accused’s position, his defense herein is based upon three propositions or claims made by him: First. That the letters were written by him in his capacity as a citizen, and not as an attorney at law, and hence he was not laboring under the restraints imposed by the oath and statute upon an attorney at law, and that the attorney as such cannot be punished for the act of a citizen. Second. That the letters were honestly and without malice 'prepared, delivered and published for the purpose of calling the attention of the proper authorities to the corrupt character of the justices of this court, with the view of securing their removal from office. Third. That the letters contained only fair and honest criticism of the judicial acts therein referred to, and information to the general public of the corrupt character of the judges, justices and courts condemned, of which the public should be informed. The first proposition was evidently an afterthought, as, on the return of the order commanding him to answer, he objected to the sufficiency of the accusation and elaborated his objections with a long and carefully prepared written and oral argument, but made no reference to this point, which was raised for the first time at the hearing before the referee, in the form of objections to the introduction of any evidence upon this ground. This point is probably based upon the decision in Ex parte Steinman, 95 Pa. St. 220, and obiter remarks in a few other cases. In that case Steinman and his partner were both attorneys at law and editors of a newspaper and they printed in their paper an article very severely reflecting upon the conduct of the court in a certain prosecution in the Quarter Sessions, in which the defendant had been acquitted on an indictment for violating the liquor law. It charged that the acquittal “was secured by a prostitution of the machinery of justice to serve the exigencies of the Republican party,” and added that as the judges belonged to that party it was unanimous — for once —that it need take no cognizance of the imposition practiced upon it, and the disgrace attaching to it. Por this publication the editors were disbarred by the court which they had condemned, and on appeal the supreme court reversed this judgment under their constitutional provision that “no conviction shall be had in any prosecution for the publication of papers relating to the official conduct of officers or men in public capacity, or to any other matter proper for public investigation or information, where the fact that such publication was not .maliciously or negligently made shall be established to the satisfaction of the jury,” and on the ground that the publication was made by them as editors and not as attorneys. That case is distinguished from the case at bar, in at least three important particulars: 1. We have no such constitutional provision. 2. The persons disbarred were editors publishing the offensive article as an editorial in their own paper. 3. They were not condemning or threatening the judges for decisions rendered in cases which, as attorneys, the publishers had litigated in the court. See State v. McClaugherty, 33 W. Va. 250. We have not been able to find any case in which it has been held that it was not a violation of the oath and duties imposed by law upon an attorney, for him to publish a libel of or threaten or assault a judge because of a decision rendered by such judge in an action in which such attorney has represented the losing side, or in which it has been held that such act should be considered and treated merely as an act of a citizen, and could be punished by the court only in the manner in which any citizen, not an attorney, could be punished. Among the cases in which disbarment has been upheld for libelling a court or judge for past acts or decisions, see In re Brown, 3 Wyo. 121; State v. McClaugherty, supra; People v. Green, 7 Colo. 237. But conclusive up'on the question of whether these letters were written and published as a citizen or as an attorney at law, is the very nature and substance of the entire letters. Respondent claims in these letters that the judges and justices who participated in the decisions mentioned by him, are corrupt and should be impeached and removed from office. And why? In his second letter to Governor Johnson respondent says: “No one would for a moment think or suspect that any member of the court would sell his opinion for a cash consideration. In that sense, there is no charge or thought of corruption.” And there is no charge or hint anywhere, in any of the letters, of any other- outside influence having been exerted upon them, unless it be the insinuation in the closing paragraph of the first letter to the governor. On the contrary, in these letters and by the evidence offered by him, he rests his charge of corruption solely on the ground that the decisions complained of are so clearly wrong, as appears by the decisions themselves, that it is corrupt and misconduct for men so ignorant and incompetent to hold a judicial office. Could any intelligent citizen, who was not a lawyer, carry a load of conceit sufficient to prompt him to sit in review of the supreme ■court of the state, and declare its decisions not merely erroneous, but so absolutely and clearly wrong as to show incompetence in all the justices? It required a lawyer to do this, and not a mere ordinary lawyer at that. It required a lawyer who believed that he was so infinitely superior, as a lawyer, to each and all of the supreme court justices, that he could review, and infallibly pass upon the correctness of their decisions and upon their qualifications to fill the office, beyond a possibility of doubt as to the correctness of his conclusions. And not only must this lawyer believe himself to be so infallible as a lawyer, but he must believe himself possessed of such a dispassionate and impartial mind that he could disregard all prejudice and preconceptions derived from his long study and advocacy of one side of the case, and calmly and infallibly review the decision of disinterested judges, which had been arrived at after the examination of both sides. - Not one of the judges condemned by the respondent could be induced to decide or review a decision in a case in which such judge had been employed as counsel, but respondent is, in his opinion, so superior, that the bare possibility that his- judgment may be prejudiced by his relations to the cases reviewed by him, does not appear to have had place in his mind. Notwithstanding that in these letters he speaks only as a lawyer and an infallible one, he asks this court to believe that he was speaking only as a citizen, and because of that fact, to permit him to escape the penalty which a lawyer, acting as he has done, would have incurred ! He knew, when he wrote and published these letters, that the only weight the charges made or hinted at by him, would or could have, was derived from the fact that he was an attorney at law, an officer of the court. In his letter to the publisher of the “Dispatch,” Exhibit 1, in which he requests him to “accompany the publication with an editorial that will put the judiciary squarely upon its mettle regarding the merits of the controversy,” he said: “If the decisions are, as claimed, unjudicial from any standpoint, or for any cause, and the criticism upon them lawyer-like and just, the unfitness of the court becomes manifest.” . “If the charges set forth in the letter are well founded and just, the propriety of resignation upon the part of members of the court becomes too apparent to need suggestion. If the decisions are right, Mr. Hart should cease to practice law.” Is it an answer to the accusation that the cases, which respondent says were erroneously decided, were no longer pending, when he published the letters in question? It appears to be his theory that since the strictures upon the court relate to its actions in the past, he has merely exercised the privilege of free speech which the constitution guaranties to every citizen. It must be conceded that every man, whether lawyer or layman, has the right to freely criticise the acts of public officers, including judicial' officers. If in so doing he abuses the privilege he is answerable for such abuse. If he abuses the privilege in speaking or writing of courts or judges, he is answerable for contempt as well as for libel. While there is a diversity of authority as to whether he is answerable for contempt when his written or spoken words relate to judicial conduct in a case no longer pending, the weight of reason and authority makes 'no distinction between pending cases and cases finally adjudicated. To impute corruption and a perversion of justice to a judge is attended by more mischievous consequences than a blow, and yet to strike a judge for having rendered an adverse decision has always been held to be a contempt. Rex v. Almon, Wilmot Op. p. 253; Reg. v. Gray [1900] 2 Q. B. 36; In re Wallace, L. R. 1 P. C. 283; Com. v. Dandridge, 2 Va. Cas. 408; Burdett v. Com., 103 Va. 838; State v. Morrill, 16 Ark. 384; State v. Shepherd, 177 Mo. 205; U. S. v. Gehr, 116 Red. 520; In re Chadwick, 109 Mich. 588. If respondent as a citizen falsely, charged the justices of the supreme court with corruption and dishonesty, even though the charge referred to decisions they had rendered in cases no longer pending before them, he was punishable as a citizen for contempt of court.. But as a lawyer, and officer of the court, he is also subject to disbarment, because he has failed to observe towards the court and justices the respect which is due from him. As an individual he is punishable for his contemptuous and insulting language concerning judicial officers. If as an individual he has been guilty of conduct of that nature, it inevitably follows that as a lawyer he has failed to observe due respect towards the court. He occupies a dual position. Citizen Hart has been guilty of contempt of court. Attorney Hart is also guilty of contempt of court, and because he is guilty he has not observed due respect towards the court. What graver offence can an attorney commit? How can he more completely violate his oath? To falsely charge the justices with conduct which requires their impeachment is a greater indignity to them than to strike each of them a blow. Such a charge coming from an officer of the court has greater weight than if it came from a layman. It necessarily impairs public confidence in the administration of justice. Future decisions of the court will fail to command the confidence of the public, shaken by the false charges and insinuations of respondent and given wide-spread publicity by the press. Is this not impairing the administration of justice? What more can any lawyer do to instil into the minds of the citizens of Minnesota suspicion and distrust of the courts? If it be true that to falsely accuse a judge of corruption in office is to commit a contempt of court, by impairing public confidence in the court, can it be said with any show of reason that a lawyer who has put forth and circulated such an accusation has not violated every rule of fidelity and honor which he is bound to obey at the hazard of his license to practice his profession? Were the letters honestly and without malice prepared, delivered and published for the purpose of calling the attention of the proper authorities to the corrupt character of the justices of this court, with the view of securing their removal from office? This position is most emphatically negatived by every act of the respondent relative to the preparation and publication of the letters, and by the entire substance and language of the letters themselves. Under our constitution (art. 13, § 1), judges of the supreme court and district courts can be removed only by impeachment, and that can be only “for corrupt conduct in office, or for crimes and misdemeanors,”' and article 4, section 14, provides that “the house of representatives shall have the sole power of impeachment.” These facts are not only presumably known to the respondent, as an attorney of many years standing, but he expressly asserts his knowledge of them in the first paragraph of the letter addressed to Chief - Justice Start. That the letters were not prepared or published for the purpose of securing official action for the removal of the justices, is clearly shown: 1. By the fact that there was no official body in session, which could take such action. 2. The letters were not addressed to the only body which could impeach. 3. The letters are not in the form of charges of acts explicitly alleged to be corrupt, so that issue thereto could be raised and tried, but refer to certain decisions, and by argument, question, innuendo and insulting and contemptuous comments, and condemnation, seek to convey the impression to the readers that the judges'who made such decisions must be dishonest and corrupt. 4. The letters were prepared for publication in newspapers and were furnished to editors of papers for publication long before they were mailed to the parties to whom they were nominally addressed, and the whole tone .of the letters show that they were really intended for the public perusal, and not as a commencement of legal proceedings. 5.. The letters, as modified and explained by the second letter nominally addressed to Governor Johnson, Exhibit C, do not contain, even by question, innuendo or condemnatory comments, charges for which the justices could be impeached, and no evidence of wrong influence or motive influencing any of the judges or justices condemned by respondent was offered. On the contrary, all that the accused claims to •be able to show, is incompeteñcy and ignorance of the law. There have been many cases of impeachment of judges in this country, involving charges of misconduct and corruption, and in most of them the question of what constitutes an impeachable offense has been discussed, and in no case has it been held that impeachment would lie because of a wrong decision resulting from incompetency or ignorance of law, uninfluenced by ulterior corrupt motives. Trial of Francis Hopkins, Penn. State Trials, 1780; 3 Trial of George G. Barnard, 2037. Our state library contains the published proceedings in the following trials, all of which have been carefully examined: Barnard, (G. G.) Justice of N. Y., 1872; Chase, (Samuel) Justice U. S. Sup. Ct., 1801; Cox, (E. St. J.) Judge Ninth Judicial Dist. 1881; Curtis, (G. M.) Justice Marine Court, 1872; Hubbell, (Devi) Judge Second Jud. Court, 1853; McCunn, (J. H.) Justice Superior Ct., N. Y., 1872; Page, (S.) Judge Tenth Judicial Dist., 1878; Prindle, (H. G.) County Judge, 1872; Smith, (G. W.) Judge Oneida County, i860; Botkin, (Theodosius) Dist. Judge, Kansas, 1891; Swayne, (Charles) U. S. Dist. Judge, Florida. In none of these cases has a judge been called upon to defend because of a wrong decision, charged to have resulted solely from incompetence or ignorance of the law, nor in any has incompetency or ignorance, uninfluenced by ulterior motives, been charged as corruption. On the contrary in several cases, where the acts and decisions complained of were directly contrary to express statutory provisions, many members of the senates have explained their votes of not guilty on the ground that they believe the act to have been ignorantly done and not corruptly. In this case respondent has had his day in court and every opportunity to introduce evidence, if any were obtainable, to show any dishonest or corrupt act of any justice or judge included in his condemnation, and he has not offered one word, even hinting in that direction, or in support of his vile, ungentlemanly, unprofessional, contemptuous, insulting and libellous' charges, statements and insinuations. It has been uniformly held by all courts from the earliest times that the obligation which attorneys assume when admitted to the bar is not discharged by merely observing the rules of courteous demeanor in open court, but includes abstaining out of court from insulting language and offensive conduct towards the judges personally for their judicial acts. 3 Am. & Eng. Enc. (2d Ed.) 302, 306. An attorney as an officer of the court is under special obligation to be considerate and respectful in his conduct and communications to the court or judge, and for a wilful violation of his duty to respect courts he may be removed from office. Ex parte Secombe, 19 How. 9-16; In re Woolley, 74 Ky. 95; Harrison v. State, 35 Ark. 458; In re Griffin, 1 N. Y. Supp. 8; In re Wilkes, 3 N. Y. Supp. 753; Bradley v. Fisher, 13 Wall. 335, 337. What public interest, then, did the respondent intend to subserve by writing and publishing the letter ? He says: “Preliminary to moving articles” (of impeachment) “I submit three specifications.” Why at this time, and in the manner adopted by him? There was no legislature in session, and none would be for two years. Why did not the respondent move impeachment at the 1903, or 1905, or 1907 session 'of the legislature? Is it at all reasonable to suppose that the respondent believed the governor would call a special session of the legislature for the purpose at this time? The respondent, with all the information he claims to possess, had waited for year-s. But this is assuming that he believed that grounds of impeachment in fact existed. But did he so believe? One assuming to criticise the decisions of the highest court in the state should be presumed to know that judges may be impeached only for corrupt conduct in office, or for crimes and misdemeanors. Unless, therefore, he has charged the cpurt or judges with such conduct or crime he knew there could be no impeachment, he certainly knew there could be no impeachment for erroneous decisions; if it were conceded that the decisions were erroneous. Again, even if he believes that grounds for impeachment existed, why rush into print? Did he desire to create such a prejudice and bias in the-public mind as to make it difficult or impossible to obtain a fair trial? No good purpose could be subserved by the publication of his alleged articles. He could have quietly consulted with the governor and his legal advisers as to whether a special session of the legislature should be called, and, if that were deemed advisable, he could then have prepared his articles and submitted them at the proper time in a proper way. Nothing short of bad faith can be predicated of the respondent’s acts and conduct. His statement that his so-called specifications were preliminary to moving articles of impeachment was the shallowest pretense and mere excuse for a premeditated attack upon the court in the columns of the newspapers without any justification ■whatever; the motive is transparent. If the respondent believed that in his “specifications” he stated grounds for impeachment he must have intended by his language to charge corruption in office, or crimes, and must have intended that those who- read his letter should believe that the court was guilty, and we think the letter is susceptible of that meaning, and of none other. We must not forget that we have a people’s government. The people alone are supreme, both in authority and right. Those chosen for and qualifying to office become sworn servants of the people. The sole dignity which attaches or can attach to the incumbent personally must be by him earned and demonstrated in the faithful discharge of duty as such servant. Watchful control of its public servants and swift arraignment of every neglect, abuse or disorder in the service is the economy and insurance of healthful administration. Every branch of government service is equally amenable to this disinfecting research. The apparent respite of the court is only. until its decision in any cause shall have been made and its jurisdiction thereof concluded. Then, and not till then, can the citizen exercise unrestrained freedom in regard to any action taken or judgment rendered without a violation of any of its rules or rights, and within his constitutional prerogative. In State v. Circuit Court of Eau Claire County, 97 Wis. 1, it appeared that the relator, an attorney of the court, composed and published an article, charging the judge “with having been intentionally partial and corrupt in the trial of certain causes in his court.” The opinion says: The right of free speech and of free publication of the citizen’s sentiment “on all subjects” is guaranteed to all citizens. * * * In our judgment, no such divinity as this (freedom from criticism) “doth hedge about” a judge. See Ex parte Steinman, 95 Pa. St. 220; State v. Burnham, 9 N. H. 34; Case of Austin, 5 Rawle, 191. There is a stronger corrective agency than criticism and exposure of a court’s mistakes for the prompt arrest and arraignment of such misdoings when clearly wilful and intentional in their inception, or when purposely and tenaciously adhered to after the errors shall have been pointed out and their amendment and correction seasonably demanded. It is by the impeachment of the offending parties. It is this more drastic and adequate relief which the respondent seeks to have set in motion and actively applied. It is this which it is the solicitude and effort of .the members of the, court and those acting in their behalf, to ward off, through this reprisal procedure. In the preparation of the Minnesota constitution, the removal of judges by address, substantially as provided by the Wisconsin constitution, was proposed and rejected. This was not to extend to the judiciary greater license or immunity, but because the remedy by impeachment was deemed correlative and adequate, as had already been decided in Wisconsin. It has proved so in actual practice in this state. The direct question was presented and decided in the charges of impeachment against Judge Page. E. St. Julien Cox, judge of the Ninth judicial district, which then embraced a large area, requiring him to hold forty seven separate terms of court each year, which he did hold, and never adjourned a term with an unfinished calendar, was impeached for the mere indulgence of a habit which temporarily disqualified him for the exercise of his understanding in matters and things then before him as such judge. It was shown that upon eighteen different occasions this had occurred. For this he was removed from office. No indictable offence, surely. The gist of it was the temporary clouding of his understanding. This caused litigants and the public to suffer and he was rightly convicted. The state constitution (art. 13, § 1) provides that judges may be impeached “for corrupt conduct in office or for crimes and misdemeanors.” If the corrupt conduct was intended only to embrace conduct constituting crimes indictable, why specify it at all? In the Page impeachment Governor Davis, .for the accused, conceded that the plain meaning of this language was that a judge might be impeached for improper conduct, though not criminal. When a judge subverts his power to an improper use, when he indulges in partiality, regardless of cause, when arbitrary or tyrannical in his rulings or orders, although not amounting to criminal turpitude, he renders himself amenable to impeachment. Blunders and mistakes thoughtlessly and innocently made are not the subject of impeachment. But, while still having power to correct and rectify after attention shall have been rivetted upon them, if refused, mistakes no longer rank as mistakes, but as wilful offending, and impeachable. The judge must ever and at all times and upon all occasions, act justly in his office and gross error can never be or become just. It must be eradicated and abandoned. The object of impeachment, as stated by Judge Story, is not so much designed to punish an offender as to protect the state against gross misdemeanor. In impeachment parlance, misdemeanor has obtained a meaning entirely distinct and different from police-court crime. Impeachment is not to punish but to try a man’s fitness for office, and misdemeanor in this sense is merely unfitness. The office of judge belongs to the people. It is created for their use and its duties must be discharged in honor. To bring it in disrepute and disgrace, only by so much as one unjust decision, tenaciously and wilfully adhered to after being informed and instructed in regard to the error, ought to be and is a cause for impeachment. No man has an inalienable right to office, all have an inalienable right to justice and to be protected in the right by the judiciary. It is for this very purpose that the judicial office is created. Wherein is the procedure adopted by the respondent for bringing about the impeachment of the judges for wilful misdeeds, at fault? It is in this: (1) To assume to know enough to know when the supreme court has erred in construing and applying the law is consummate conceit. (2) To dare tell the public what the supreme court knows is cruelty. The judges in our courts of last resort are the trustee-appointed arbiters of the law. Their decisions should be entitled to and command profound respect. But in order for this, the judge making the decision must, in the decision and by it, declare himself a judge. Failing in this, no disbarment of his critic will augment his judgeship. Speaking for the court, Judge Flandrau in the Curtis case, 3 Minn. 188 (274), declared: “While we will go as far as we can to support that proper respect which is due the administration of justice in the courts, our first duty, to entitle ourselves to receive that respect, is an adherence to well-settled rules of decision.” A hundred years ago almost this very hour, the empire state granted a perpetual franchise to Fulton and Ifivingston for navigating by steam power the waters of the North and East rivers. This grant is the incunabula of private monopoly in .this country. The same year Stevens launched his -double-screw propeller and they drove him to the waters of the Delaware. Fifteen years later in Gibbons v. Ogden, [9 Wheat. 1] Chief Justice Marshall held that the great highways of commerce and trade whether natural or. artificial are not the proper subjects of private monopoly and he annulled the charter. Today this decision is respected, given extended application and enforced, not because Marshall made it, but because it is bottomed in fundamental justice to all parties affected. The life of it is its wisdom. Respect for and obedience to it is not automatic and perfunctory out of regard for the author, great though he was, but because justice commands. In the healthy and vigorous administration of .justice, justice and justice alone must be the incentive. It. is difficult to analyze and answer the reásoning of our friends in their efforts to extricate the members of the court because of the wavering compass they follow. They say, he could have quietly consulted with the governor. He did. He indulged in the deafening silence of a letter which put even the ears of the governor»out of commission. And what did the governor do? Precisely what any well-balanced governor, holding the reins of a separate, independent department of the government would have done. He was in no wise responsible for the miscarriages of the judiciary. It is a separate and distinct part of the government, the administration of which is not the governor’s concern, except in common with all citizens. Officially he has nothing to do with it. They say the legislature was not in session. For that reason the respondent addressed the principal direct, as also the governor, their executive officer. Was it not feasible to convene the legislature in session ? Certainly, but not until the people demanded it. The governor has but slight discretion. He can convene the legislature to impeach co-officials who are subject thereto, when commanded and instructed by public opinion. No wise governor would do it before. They say that one assuming to criticise the decisions of the highest court in the state should be presumed to know that judges may be impeached only for corrupt conduct in office. That is precisely what the respondent did know. He charged corrupt conduct within Gove v. Blethen, 21 Minn. 80, and laid bare the evidence proving it. Do they controvert the evidence? Only by the insinuation that the supreme court knows and that because the respondent was the defeated attorney in the causes he don’t know. Why do they studiously disregard the authorities of such long-standing and general acceptance as to furnish a common light to all — the only safe and sure guide ? Or why do they not point out wherein the long-settled law is wrong in principle, or of injudicious application? What is the corrupt conduct of the members of the supreme court, as charged by the respondent? Those speaking for them say it was naught but to honestly disagree with the respondent, regarding the proper determination of causes in which the respondent conducting the litigation, had a personal interest and a prejudiced judgment, whereas the court was better informed, unbiased and conclusively presumed to be right. If this is true, the respondent ought to be disbarred. But is it at all true? Nowhere can it be pointed out that the respondent pitted his legal acumen and judgment against that of the judges. Their offending was in violating the law, not in disagreeing with an advocate. The arrogance of the court consists in disregarding and over-riding well-established and settled laws of the state without reason and without cause; in discriminating'where there is no distinction, totally indifferent whether they are right or wrong. Take the Ahern case. [101 Minn. 34]. The identical judge writing the opinion had a short time before stated the rule of practice to be well-settled that where .the order (appealed from) is explicit in itself, the memorandum will not he considered unless made a part of the order. The order in the Ahern case was explicit. The memorandum was not a part of it. But the trial court was reversed solely and explicitly because of a careless remark in the memorandum, the truth of which was contradicted by every fact in the case clearly spread before the court. Is this a mere difference of opinion between the attorney and the court? Is it not a wilful disregard of the law of procedure as theretofore established by the court itself in a long line of cases, the expediency and wisdom of which had obtained and been approved for more than a quarter of a century? In Griswold v. McGee [102 Minn. 114], the court by main strength undertook to and did transfer an interest in property, valued at $20,000, the sole inheritance of a widow, to.the purchaser of the husband’s two-thirds interest, without a dollar of consideration or the shadow of right. The learned counsel say it was so ruled by the principle, if it be a principle, that the interest which a widow takes must be ascertained by the law of inheritance in force at the date of the husband’s death. G. S. 1894, c. 45, as construed in Minnesota Debenture Co. v. Dean, 85 Minn. 473, Seems to have vested the wife with a one-third future contingent interest in the real property of the husband upon marriage and seisin. In deciding the cause, all but the last twenty lines of the opinion is an effort to show that, prior to the death of the husband, the wife had no vested interest in his real property and, therefore, the interest she had been held to have was subject to being taken away by the legislature. The opinion cites case after case as authority upon this proposition, but examination shows that they have but slight reference, if any, to it. The question had never before been squarely presented for consideration. The ultimate legal fact had always been assumed rather than decided. While pretending to treat the question at great length and exhaustively, the statute defining what an interest in real property is or may be, is not referred to. The case last cited, construing the statute by parity of reasoning and analogy favorably to respondent’s contention, goes unnoticed. In this portion of the opinion the respondent acquiesced because of the absence of former explicit decisions ruling the point. But in order to give the land to the execution purchaser, the court had to go farther. The execution sale was made in 1893. It did not when made divest or affect the interest of the wife, whether such interest was then vested or wholly contingent. The supreme court had said so repeatedly before the sale, and reaffirmed it after the sale. By the act of 1901 the legislature said to the wife that unless her interest had been so divested, she should have it upon the death of her husband. The husband died, and then in the decision complained of the court say that what the legislature intended was that the prior execution sale did divest the wife’s interest, notwithstanding the former and repeated rulings of the court that it did not. The language of the act is not susceptible of such construction. The legislature was impotent to pass such an act. A carload of authorities are available and can be assembled so holding. A fair construction of the language in no manner implies that the legislature so intended. It is a travesty upon the rules of construction to so hold. The court gave the act of 1901 retroactive application. The former decisions of the state are uniform and massive upon the proposition that a statute shall not be retroactively applied, particularly where in so doing a wrong will be inflicted. By its decision has the court provoked a difference of opinion between it and the attorney or has it gone to war with its own decisions which had become settled rules of property throughout the state?