State ex rel. Grice v. District Court

MR. JUSTICE SMITH delivered the opinion of the court. On September 17, 1908, the above-named relator, who is an attorney at law and justice of the peace, residing at Butte, filed in this court a petition wherein he alleged that James E. Murray, the county attorney of Silver Bow county, had theretofore filed in the district court of said county, before George M. Bourquin, one of the judges thereof, an affidavit, in which the said Murray charged the relator with being guilty of a contempt of court, by reason of having published a certain letter in a newspaper called the “Butte Miner,” and that said judge had issued an order requiring the relator to show cause why he should not be punished for contempt. The petition then alleges that said court and judge are “without jurisdiction to proceed against your petitioner; that said affidavit does not state facts sufficient to constitute a contempt.” On the strength of this petition a writ was issued out of this court directing the respondents to send to this court a transcript of the record and proceedings in said contempt matter for review. In compliance with that order, the respondents have certified up the record of the proceedings in the court below. That record shows that the county attorney filed an affidavit in the district court wherein he alleged that on September 12, 1908, the relator had caused to be published in the “Butte Miner” newspaper a letter or statement, of which the following is a part: “To the ‘Butte Miner’: “On Saturday, September 5, 1908, a motion to strike from the answer of respondents in the proceeding entitled cause No. A-1564, State of Montana ex rel. Thomas Dunbar, plaintiff, versus John R. Grice, Justice of the Peace, and Charles Rowe, Constable, was filed, argued and submitted to George M. Bourquin, judge of Department Two' of the district court of the second judicial district of the State of Montana, in and for the [596] county of Silver Bow. The said judge took the same under advisement, and on Saturday, September 12, 1908, overruled the same. On “Wednesday, September 9, 1908, the said judge was disqualified by an affidavit of said constable from proceeding to exercise further jurisdiction in the premises, because of the fact that an intimated opinion (his own) had been given before the merits of the proceeding had been presented to him for consideration. Notwithstanding the facts, which are of record, the said Judge Bourquin handed down a decision in which he properly overruled the motion to strike, but after having been put in the clear because of his prejudged merits of the proceeding, George’s opinion found its way into print. * * * The only matter that the court was asked to pass upon was as to whether or not the motion to strike should or would not be süstained. Judge Bourquin was disqualified for two reasons from acting in the matter. First, he openly and publicly from the bench disqualified himself, as a matter of fact and law, from passing upon the merits of the proceeding, before it had been submitted to him. Second, one of the respondents, said constable, disqualified him by his affidavit; so the second blow, almost killed father, yet he insisted upon- acting as court, judge, jury and lawyer. ’ ’ Then followed a vicious attack upon the private character of Judge Bourquin, couched in most unseemly and intemperate language. From the phraseology employed, however, it is manifest that the attack was not inspired by the ruling of the court on the motion to strike, but by some other matter. We have nothing but words of condemnation for such an attack, and the relator’s counsel does not attempt to justify it. But this does not dispose of the question before us. • The question here is whether the district court has jurisdiction to proceed with the inquiry and punish the relator as for a contempt. It is the settled law of this state that there must be some direct charge made, either positively or upon information and belief, that the defendant committed an act constituting a contempt. Otherwise the proceeding must be dismissed. (Bos [597] ton & Mont. Con. C. & S. Min. Co. v. Montana Ore Pur. Co., 24 Mont. 117, 60 Pac. 807.) “The review must be confined to the inquiry whether the tribunal, board or officer has acted without jurisdiction. Such is the rule of the common law, the declaration of the statute, and the doctrine of this court.” (State ex rel. King v. District Court, 24 Mont. 494, 62 Pac. 820.) It appears from the papers in the ease that, after the district judge had denied the motion to strike, he made some remarks, of which the following are a part: “So far as the justice is concerned, the answer shows a .prima facie defense. So the matter cannot be stricken, but left for the trial to develop whether true or an unscrupulous device to defeat the exemption laws and to avoid paying this relator his exempt wages. * * * And it is such derelict officers in base alliance with some unscrupulous lawyer that (making some particular justice court a den of iniquity wherein the veriest poor are unconsciously oppressed and robbery, not justice done) with the indiscriminating stigmatize all justice courts as ‘justice for plaintiff’ rather than ‘of the peace,’ and bring them into disrepute.” These remarks werec-afterward printed in a newspaper in the city of Butte. The remarks of the judge were no part of the records in the case. (Phillips v. Coburn, 28 Mont. 45, 72 Pac. 291; Menard v. Montana Central Ry. Co., 22 Mont. 340, 56 Pac. 592; Harrington v. Butte & Boston Min. Co., 27 Mont. 1, 69 Pac. 102.) Very able and exhaustive arguments were made at the hearing, and both sides have filed excellent briefs, wherein the modem law of contempt is discussed and many cases are cited. But we do not think it necessary to follow counsel through this maze of decisions. It appears that a motion to strike certain parts of the answer in the Dunbar Case was submitted to Judge Bourquin and by him taken under advisement. Pending his decision a disqualifying affidavit was filed against him. Thereafter he overruled the motion to strike. This ended his jurisdiction over the ease for the time being at least (section 6315, Revised Codes); [598] and that portion of Mr. Grice’s letter which we have quoted relates entirely to this judicial action. The reference in said letter to a lack of jurisdiction on the part of the district judge evidently means jurisdiction to do more than pass upon the motion submitted. It is true that the language is not elegant, nor appropriate from the lips of an attorney, but nevertheless there is nothing therein contained reflecting upon the action of either the court or judge. • On the contrary, it is expressly stated therein that the ruling of the court was correct. Had the relator stopped there, there could be no question that he was not in contempt. It appears, however, that he discontinued his comments upon the decision of the court and launched into a personal attack upon the judge for some remarks made by him after the final determination of the motion. The writer was no longer commenting upon a decision of the court, but replying to remarks of the judge outside of the record. We are of opinion that the article shows on its face that the offensive language of the relator did not refer to any judicial action or pending litigation, but solely to some other matter. The nature of such other matter is disclosed by the remarks of the judge quoted above. These remarks afterward found their way into print, and the relator, evidently incensed thereby, attempted to reply thereto through the medium of the “Butte Miner.” The whole affair, therefore, resolved itself into a personal controversy between Judge Bourquin and Mr. Grice. For the reason that the district court was without jurisdiction to proceed, upon the record as disclosed to this court, it is directed that the order to show'cause, heretofore issued by the district court be vacated, and the proceeding dismissed. Mr. Justice Holloway concurs. Mr,. Ohiep Justice Brantly, being absent, takes no part in the foregoing decision.