Dunham v. State

Wright, C. J. — This case was first brought to this court by appeal. A motion was made to dismiss, for the reason that certiorari, and not appeal, was the proper process. This motion was sustained for the reasons following: Under the Code, the only mode of reviewing a judgment or order in a criminal action, is by a writ of error, as prescribed in chapter 184. By chapter 251 of the Laws of 1857, 412, the right to appeal is given in all criminal cases where judgment may be rendered in any of the district courts of the State, by complying with the provisions of said chapter. The 1606 section of the Code, jirovides that “no appeal lies to an order to punish for a contempt, but the proceedings may, in proper cases, be taken to a 'higher court for revision, by certiorari.” In our opinion, chapter 251 of the Laws of 1857, does not give the right to appeal from an order to punish for a contempt. The mode of revision, in such cases, remains the same as it did before the passage of the late law. This last law refers to criminal cases in the same sense, and the same manner, in which they are referred to by the Code, and only changes the method of bringing such cases to this court. The First — 253 — Cong. Church v. City of Muscatine, 2 Iowa, 69. The appeal was, for these reasons, dismissed. The case is now before us, however, by certiorari, and we proceed to examine it upon its merits. Erom its novelty in this State, and the character- of the questions involved, this case has occupied no little space in the public mind. The record of facts is somewhat voluminous, and present various acts on the part of the respondent, which are claimed to be contempts, and punishable by the district court. And yet, notwithstanding its public importance, and the repeated publications charged to have been made by the respondent, and admitted by him ; and while the case belongs to that class of cases which it is always unpleasant to adjudicate, wc are of the opinion that the consideration and application of a few general principles, will be sufficient for its disposition. rIn the examination, we have endeavored to keep constantly in viewr, what is due from the citizen to the authority and power of the courts of the State. And on the other hand, as was our duty, we have had regard to the liberty of the individual, and the proper freedom of the public press. As the power to punish for contempt, is a necessary one — necessary to the very existence of judicial tribunals, and their efficiency and own preservation- — and while it is a power that is not only inherent in every court, but one that is abundantly recognized by the constitution and laws of the several States; so, on the other hand, the personal liberty of the individual — and the liberty of' speech and the press — are made no less secure, and are upheld by considerations equally important, and essential to the prosperity and advancement of every free government. In consonance with these rights, our own constitution declares, that no law shall be framed to restrain or abridge the liberty of speech or the press, and that every person may publish his sentiments on all subjects, being responsible for the abuse of that right. It is also declared that the right of the people to be secure in their persons, shall not be violated; that the right of trial by jury, shall — 254 — remain inviolate; and that- no person shall be deprived of life, liberty, or property, without due process of law. The liberty of the press, however, should never be confounded with its licentiousness, nor should a fear of its licentiousness, justify the abridgement of its proper and necessary liberty. The power given to the courts to punish for contempts, is not alone for their own preservation, but also for the safety and benefit of, the public. The life, liberty and property of every citizen, are protected, and the true welfare of society ensured and promoted, in the preservation of this power in its proper vigor and efficiency. Take from our courts this power — deprive them of this trust' — and they would be subject to the clamorous demands of an excited mob — to disturbances calculated to interrupt the due course of judicial proceedings. Every order and process made or issued, might be illegally resisted, with comparative impunity ; and at no very distant day, they would cease to command the respect of the public, or be able to secure obedience to their mandates. This respect and this obedience, they must command and secure, however, upon the principle that the power to punish for contempt, is a preservative power, and should not be used for vindictive purposes. It is a power delicate in its character. Necessity alone, should justify a resort to it. It must be used and applied by the soundest discretion. “Respect to courts cannot be compelled. It is the voluntary tribute of the public, to worth, virtue and intelligence, and while they are found on the judgment seat, so long and no longer, will they retain the public confidence.” Stewart v. The People, 3 Scam., 395. Our Code declares that certain acts or omissions therein named, are contempts, and are punishable as such, by the courts of the State, or any judicial officer acting in the discharge of an official duty. The acts charged in this case, if punishable under the Code, must be so by virtue of the first clause of section 1598, as being “contemptuous or insolent behavior toward the court, while engaged in the discharge of a judicial duty, which may tend to impair — 255 — the respect due to its authority.” In this view, however} we cannot concur. "We think this clause has reference to some act or behaviour in the actual or constructive presence of the court. The use of the words, “behavior towards”- — -“while engaged” — and “in the discharge of’— would clearly seem to show that this was intended. Not, it is true, that the contemptuous and insolent behavior, need he in the court room, and under the eye of the court, in order to amount to a contempt. But, the court being in the discharge of its judicial duties, the guilty party though not in its" immediate presence, might do those things which would amount to a contempt. Thus, if the respondent had procured, to be posted within the court room, pictures or articles, calculated to obstruct, embarrass or implede the administration of justice, or impair the respect due to the authority of the court, either by carricaturing the judge, or otherwise, the act might well he said to bo done in the presence of the court, it would be “behavior towards said court.” So, also, a person outside of the court room, but within hearing, might make use of such language, or do those things, which would render him liable for contempt, as fully as though spoken or done within the bar. But to make a party guilty under this clause, the contempt, or insolent behavior must be towards the court — the court must he engaged in the discharge of a judicial duty — and this behavior must tend to impair the respect due to its authority. It would be a perversion of the entire language used, and a palpable violation of the spirit and policy of the provision, to say that a judge could bring before him every editor, publisher, or citizen, who might, in.his office — in his house — in the streets — away from the court, by printing, writing, or speaking, comment upon his decisions, or question his integrity or capacity. The law never designed this. It is not thus that an independent and intelligent court, will be apt to secure public confidence. Such a power is not necessary, for either the protection of the court or the public. — 256 — If by general rule, or by special rule made as to some case on trial, the publication of the testimony pending the investigation, had been prohibited, a willful violation of such rule, might amount to a contempt, upon the ground that it would be a resistance to the order thus made ; and especially so, if the rule itself declared such an act a contempt. Such rules are not unfrequently made, and are often calculated to prevent improper impressions being made upon jurors, to the injury of the parties litigating. No such rule is pretended to have been made by the court below. If, therefore, the respondent did nothing more than comment, though never so severely, upon the action of the court; and though he may have published ever so fully, and, whether truly or falsely, the proceedings upon the first hearing, we cannot thinlc it would amount to a contempt, under the first clause of the section under consideration. We, of course, know nothing of the accuracy of the account published of said hearing. Nor, or the purposes of this inquiry, is it material that we should.- Nor are we to be understood as sanctioning the propriety of the course pursued by respondent, in his comments and references to the proceedings of the court. If his attack were libellous, then it seems to us, that he and the judge assailed, should be placed on the same grounds, and “their common arbiter, should be a jury of the country.” No court can or should hope, that its opinions and actions can escape discussion or criticism. When a case is disposed of, and the decision announced, such decision becomes public property, so to speak. The construction given to a statute —the reasoning and conclusion of the court upon the facts — all go to the public, and become subject to public scrutiny and investigation. In such cases, it is perfectly competent and lawful, for any one to comment upon the decision, and expose its errors and inconsistencies. If such comments do not correct errors, they will, at least, lead to renewed caution and circumspection upon the part — 257 — of those whose duty it is to declare the law. It would be a fruitless undertaking, in this country — where the freedom of speech and the press is so fully recognized, and so highly prized-^to attempt to prevent judicial opinions from being as open to comment and discussion, as an opinion or treatise upon any other subject. It is well, and fortunate that it is so. This right is fully recognized in England, and it would be strange, if, under our institutions, we should be less tolerant. To investigate and discuss the opinion of the court, and to disobey its mandates or orders, are quite different things. All men may rightfully make their comments, but none should disobey, except upon pain of suffering the penalty attached tor the violation. And should those thus commenting, leave the subject, and impute dishonesty or base motives to the judge, he may be punished by indictment, for a libel — he may be answerable in damages in a civil action — or he may be liable to both prosecutions. As to the acts of the respondent, it will be observed, that, except in relation to his comments, and the publicalication made of the proceedings in his own case, on the first hearing, his articles had reference entirely to cases that were not before the court. The cases of Abrahams and'Boke had been adjudicated, and appealed to this court. As already stated, there was no rule, general or special, prohibiting the publication of the speeches of counsel, remarks of the court, or giving a statement of the proceedings on the first investigation. And, without referring to the effect of making the publication, if there had been such rule, it is sufficient to say, that it could not, under the circumstances of this case, amount to a contempt. It is insisted, however, that the courts of this State may punish other acts and omissions as contempts, than those mentioned in the Code. We are strongly inclined to think, however, that the provisions of the Code upon this subject, must be regarded as a limitation upon the power of the courts, to punish for any other contempts. "We can conceive of no possible state of case, in which the exercise of — 258 — this power might become necessary for the protection of the court, or the due administration of the law, that is not covered by these provisions. If such a case should, by possibility arise, we would not say that, by virtue of its inherent power, the punishment might not be inflicted. It is sufficient to say, however, that this is not one of those cases. The newspaper articles of the respondent, may have been never so unjust — his strictures and censures have been never so malignant and libellous — and yet, in our opinion, they, in no proper legal sense, under the circumstances, amounted to contemptuous or insolent behavior towards the court, nor were they so calculated to impede, embarrass or obstruct the court in the administration of the law, as to justify the respondent’s punishment in this summary method. Judgment reversed.