State ex rel. Rankin v. District Court

Opinion PER CURIAM.

Certiorari to the district court of Lewis and Clark county to review an order adjudging Wellington D. Rankin, Esq., an attorney at law, guilty of contempt.

On May 23, 1920, during the trial of a cause entitled The [1] State of Montana v. D. E. Rainville, in the above-named district court, the court made and entered the following order:

“The trial of this cause was this day resumed; present J. R. Wine, Esq., county attorney, George W. Padbury, Jr., assistant county attorney for the state, and the defendant with his counsel, Wellington D. Rankin, Esq., and A. H. McConnell, Esq., and the jury. Thereupon Dr. E. D. Hitchcock resumed his testimony on behalf of the state. Thereupon Dr. B. Y. McCabe was called, duly sworn, and testified on behalf of the state. Thereupon, by reason of remark of Wellington D. Rankin, Esq., counsel for the defendant, the further taking of testimony was deferred and the bailiff instructed to remove the jury from the courtroom. Whereupon the court, upon finding that counsel could not be restrained as to his remarks, the court finds that in the first part of the trial when the question came up as to the position of counsel, Wellington D. Rankin, of counsel for defendant in this ease, was insulting and impudent to the court in his remarks in the presence of those in the courtroom and in the presence of the jury.

“The court holds, and so finds, that in the first part of the trial when the question came up as to the position of counsel, *284 Wellington D. Rankin, of counsel in this case, was insulting and impudent to the court in his remarks in the presence of those in the courtroom and in the presence of the jury.

“The court finds, and again declares, that again on yesterday three times the court had to admonish counsel that the question covered by his question had already been ruled upon by the court and it was not further necessary for him to put the questions in order to preserve his record. Three times afterward he put the same question.

“The court further finds that when a question was put by the counsel, Rankin, to the witness upon the stand, and the court was not clear from the question as to what he meant and the court made remark with reference to it, counsel was insulting and impudent to the court.

“The court further finds, and so declares, and the record will show, that three times in the course of this trial and while the court was attempting and undertaking to make remarks—remarks pertinent to the case—he was interrupted by counsel, Wellington D. Rankin.

“The court further finds, and so declares, that his manner all through has been insulting and the effect has been to lower the court in the opinion of those present, to bring the court in contempt, and to interfere with the proper administration of justice.

“Stand up, Wellington D. Rankin. The court finds you guilty of contempt, and it is the order, judgment, and sentence of this court that you be confined for 48 hours in the jail of Lewis and Clark county, and that you pay a fine of $250, and you are remanded to the custody of the sheriff to see the sentence executed.”

Mr. Rankin, having been committed to jail, brought this proceeding to have the order annulled on the ground that it is void on the face, in that it does not recite the facts as they occurred at the time it was made, as required’ by the statute. On application for habeas corpus at the same time, the relator was admitted to bail pending final hearing.

*285 The orders examined in the cases of State ex rel. Breen v. District Court, 34 Mont. 107 , 85 Pac. 870 , and In re Mettler 50 Mont. 299 , 146 Pac. 747 , were in form and substance the same as the one here complained of. Both of them inflicted punishment for direct contempts, under section 7311 of the Revised Codes. The one in the Breen Case was before this court on certiorari. It was declared void, the court saying of it: “The conviction here was for a direct contempt. The judgment, however, is wholly insufficient to meet the requirements of the statute. It does not contain, even by appropriate reference to the proceedings before the court, anything to show what the matters referred to as scandalous were, nor any fact tending to show what the manner of the relator was. It states conclusions and inferences only, drawn by the judge from the facts as they actually transpired, thus leaving this court no alternative but to accept these conclusions or to hold the order invalid. The purpose of the statute is to require the court to set forth the jurisdictional facts,’ so that the propriety of the judgment of conviction may be examined and reviewed. If adjudged sufficient as it stands, the order complained of would be conclusive upon-this court, and review of it, as to the sufficiency, of the facts to put the power of the court in motion, would be impossible.”

The ease of In re Mettler was an application for habeas corpus. The complainant was held entitled to his release on the ground that the order was void. The court, speaking through Mr. Justice Holloway, quoted with approval the paragraph above from the opinion in the Breen Case as embodying the correct construction of the statute. These cases are conclusive of the insufficiency of the order in this case. The following decisions from other jurisdictions fully sustain the conclusion announced in those cases: Ex parte Rowe, 7 Cal. 181 ; In re Shortridge, 5 Cal. App. 379 , 90 Pac. 478 ; Cress v. State, 14 Okl. Cr. 521, 173 Pac. 854 ; Crites v. State, 74 Neb. 687 , 105 N. W. 469 ; In re Shull, 221 Mo. 623 , 133 Am. St. Rep. 496 , 121 S. W. 10 ; Ex parte Hoar, 146 Cal. 132 , 79 Pac. 853 ; *286 In re Coulter, 25 Wash. 529, 65 Pac. 759 ; State v. District Court, 124 Iowa, 187 , 99 N. W. 712 . Relator is therefore entitled to have the order annulled.

Counsel for respondents insist, however: (1) That, though the facts are defectively stated in the order, sufficient are stated to uphold it, and if not, (2) that reference may be made to the portions of the evidence in the case of State v. Rainville, certified in the return to the writ, to ascertain what was said and done prior to and at the time the order was made, for the .purpose of upholding it. Neither of these contentions can be maintained. In answer to the first, a very brief notice of the order will be sufficient. In the first paragraph preceding the adjudging portion of the order, which does not purport to state any facts, the court “finds” that during the first part, of the trial “when the question came up as to the position of counsel” the relator was “insulting and impudent to the court in his remarks,” etc. What was the position of counsel referred to? Was it one assumed by him upon some preliminary question then the subject of argument? Or did the court refer to the place in the courtroom relator presumed to occupy? What were the remarks made by him which the court deemed insulting and impudent?.

In the second paragraph the court finds and declares that on the previous day during the trial it had admonished counsel three times that “the question covered by his question had been ruled upon by the court and it was not further necessary for him to put the questions in order to preserve his record,” and that “three times afterward he put the same question.” What was the question? To whom was it propounded? Was it propounded to a witness who was then being examined, or had it been propounded to a different one? Was it each time expressed in the same language? Did it seek to elicit testimony on the same subject to which the previous one related ?

In the third it is found that counsel was “insulting and impudent” to the court while it was making remarks with ref *287 erence to a question which had been put to a witness on the stand, the meaning of which was not clear. Of what did the insult and impudence consist? Was it manifested by word or act, or both? Or did it consist of the manner of counsel interpreted in the light of the attendant circumstances?

In paragraph 4 it is found that while the court was undertaking to make remarks pertinent to the case on trial it was interrupted by relator. Was the interruption by word or exclamation, or by some noise or movement accidentally or intentionally made by relator? How may it be determined whether the words spoken or act done was really an interruption or not? Or whether, if it was, the relator was not entirely within the limits of his duty to the defendant on trial in calling to the attention of the court some error into which it had fallen?

In the fifth paragraph the finding is that relator’s “manner all through has been insulting and the effect has been * * * to bring the court in contempt and to interfere with the proper administration of justice.” What was the manner of relator ?

Omitting the inquiry whether the court could with propriety, at a given time during the course of the trial, assemble with what then occurred the words, acts and manner of counsel on previous days and make these combined the basis for a judgment for contempt against him, the findings, ■ either taken separately or together, do not furnish any answer to the several inquiries which we have propounded with reference to them. In other words, as .was said in the Breen Case, supra, the findings state “conclusions and inferences only, drawn by the judge from the facts as they actually transpired, thus leaving this court no alternative but to accept these conclusions or to hold the order invalid.”

In making the second contention, counsel for respondents [2] have failed to observe the distinction between direct and indirect contempts. Proceedings in both are criminal in their nature. (State ex rel. B. & M. etc. Co. v. Judges, 30 Mont. *288 193 , 76 Pac. 10 ; In re Mettler, supra.) The power to inflict punishment in either is inherent in the courts. Every court, in the very nature of things, must possess the power to protect its dignity by’ compelling counsel and litigants, as well as all other persons who are called into its presence or who are there merely as spectators, to observe decorous and respectful conduct, to the end that the proceedings in hand may be conducted in an orderly way. The power is designated as “inherent” because it is necessary to preserve the dignity of the judicial department of the government, and, whenever the occasion demands, must ,be exercised to its fullest extent to enable the court to discharge its high duty of administering justice between parties whose rights are put in issue before it, or to enforce these rights after they have been determined. Otherwise, the court is recreant to its duty and becomes an object of ridicule and contempt. ■

Members of the legal profession are, in a sense, officers of [3] the court, in that they enjoy the high' and exclusive privilege of representing citizens who seek to have their rights determined. Upon them, above all other members of society, rests the duty to uphold and maintain the dignity of the court in which they practice. The obligation, if not embodied in express terms, is clearly implied in the oath to which they subscribe upon being granted the right to practice their profession. In consideration of the fact that they are trained in the law and are presumed to be well acquainted with the rules of procedure, as well as the extent of their rights and duties as representatives of litigants, they are held to a stricter accountability. The power is not an arbitrary one, however. [4] It is to be exercised only when the necessity arises, and then with an intelligent discretion to serve its purpose under the rules of procedure established by the usages of the courts [5,6] or prescribed by statute. The legislature f may prescribe the modes of procedure, but it cannot take away or abridge the power. Our legislature has prescribed modes of procedure and it is incumbent upon all the courts to observe them. *289 (In re Mettler, supra.) This is so because there must be such a record made that the convicted contemnor, if he chooses, may submit it to the appellate tribunal for review by appeal from the final judgment, or by other appropriate method. In this state he may do this only by invoking the writ of [7] certiorari (Const. Art. VIII, sec. 3), or, in proper cases, the general supervisory power vested in this court over all the inferior courts (Const., Art. VIII, sec 2; State ex rel. Sutton v. District Court, 27 Mont. 128 , 69 Pac. 988 ; State ex rel. Coleman v. District Court, 51 Mont. 195 , 149 Pac. 973 ; State ex rel. Zosel v. District Court, 56 Mont. 578 , 185 Pac. 1112 ). Under our form of government, a citizen may not be imprisoned or subjected to the payment of a fine by the final judgment of any one man, whether his offense is one denounced by the legislature or one for which he may be brought to the bar by the court itself in the exercise of its inherent power.

The right to exercise this power summarily in cases of direct [8] contempt is recognized by section 7311 of the Revised Codes. The purpose of this section is to prescribe what record must be made to evidence the legality and regularity of the proceeding. It requires that “an order must be made, reciting the facts as occurring in such immediate view and presence, adjudging that the person proceeded against is thereby guilty of a contempt,” etc., in order that the jurisdiction of the court may thus be made to appear. The word “as,” employed in the participial clause “as occurring,” is defined generally by our lexicographers as an adverb or conjunction. (Webster’s New International Dictionary; Century Dictionary.) According to the same authorities it is sometimes used also in a pronominal sense equivalent to “who” or “which.” The cases of Beasley v. People, 89 Ill. 571 , and Kelley v. Peterson, 9 Neb. 76 , 2 N. W. 346 , furnish illustrative examples. Obviously, this quality must he assigned to it here, the antecedent being the word “facts.” The participial expression “as occurring” is therefore equivalent to “which occurred.” If there were any doubt that this is the sense to be attributed to it, it is *290 removed by the later use of the term “thereby,” which has reference to the word “facts”; that is, the words, or acts, or manner, any one or all of these, which form the basis of the judgment. The purpose and meaning of the provision is thus made clear. This may be illustrated further, however, by this [9] consideration: A proceeding for an indirect contempt, as provided in the same section, must be instituted by the presentation of an affidavit setting forth the facts constituting the contempt, or by a statement of them by a referee or arbitrator or other judicial officer. The contemnor must then be-brought before the court by process, and held for trial or be admitted' to bail, as provided in sections 7312 et' seq. A hearing must then be had upon the answer of the contemnor, which must be conducted ..with all the incidents of an ordinary criminal case, except that a jury is not required. If the contemnor is found guilty the court pronounces judgment as in ordinary criminal cases, sentencing him to pay a fine or to undergo imprisonment, or both fine and imprisonment may be imposed. The judgment is then executed as in other cases. The affidavit, the process, the answer of the contemnor, and the evidence, when properly preserved, together with the judgment, constitute the record.

In a case of direct contempt, the contemnor being already [10] present in court, neither formal charge against him in writing nor process is required. The court stops the proceeding during the course of which the contempt has occurred and summarily renders judgment, imposing such punishment as it may deem proper within the limits prescribed by the legislature. No record is made other than the judgment. This, as the statute prescribes, must recite the facts showing the contemptuous words, acts or.manner, as the case may be. It is then entered under its appropriate title to indicate the character of the proceeding, and this constitutes the record. If the court fails to formulate the judgment as section .7311, supra, prescribes, there is no record to which the appellate court may look to ascertain whether the facts “as occurring” in its im *291 mediate view and presence are sufficient to form the basis of a judgment. If the contempt is committed by counsel employed in the trial of a case, or by a witness undergoing examination, so much of the evidence introduced in that case as is necessary to disclose the contempt must be recited in the judgment. If it is committed by a person not connected with the case then in hand, the facts pertinent to that case may or may not tend in any way to disclose any misconduct or breach of propriety. In other words, the pertinent facts are not disclosed by the presiding judge through the medium of witnesses, but are such as are observed by the judge himself. By his recital of them as they are known to him the record is made. The validity of the judgment is to be tested by the recital thus made, and cannot be supplemented by evidence or by facts certified up in the return by the judge. The proceeding, therefore, though taken and determined during the course of other proceedings then before the court, is distinct from the latter, and the record in the latter is no part of the record in the former. Upon certiorari, the judgment itself is the only record, and a certified copy of it constitutes the full return to be made to the appellate court in obedience to the writ, as prescribed by section 7206 of the Revised Codes.

In support of their contention, counsel have made an elaborate argument in their brief, and cite authorities which hold that the facts upon which the eontemnor has been adjudged guilty may be certified to the appellate court to supplement the order. These authorities apply, however, to cases of indirect contempts, and are not in point here.

In their brief, counsel for the relator make the point that [11] he was not accorded an opportunity to explain or excuse his contempt and thus purge himself or show that no contempt was intended. This seems to be the better practice even in flagrant eases (4 Ency. Pl. & Pr. 789). No one should be condemned without a hearing. We cannot ascertain in this case what the facts were, and therefore express no opinion as to whether the relator was guilty. So far as we can *292 judge, be may bare been able to satisfy tbe presiding judge that bis conduct and manner, tbougb apparently contemptuous, were in fact not so.

Tbe order is annulled, and tbe bail bond furnished by the relator is discharged and bis sureties exonerated.

Order am-nulled.