State ex rel. Schmidt v. Gehrz

Owen, J. It is well settled m this state that the writ of prohibition is an extraordinary remedy and will not be issued where there is an adequate remedy by appeal or otherwise. State ex rel. Meggett v. O’Neill, 104 Wis. 227, 80 N. W. 447; State ex rel. Tewalt v. Pollard, 112 Wis. 232, 87 N. W. 1107; State ex rel. Milwaukee E. R. & L. Co. v. Circuit Court, 134 Wis. 301, 114 N. W. 455; Petition of Pierce-Arrow M. C. Co. 143 Wis. 282, 127 N. W. 998. If the court had no jurisdiction to enter the injunc-tional order of March 7th against the relator, the proper method for securing a review thereof is by writ of cer-tiorari. If the court did have jurisdiction to enter the order, it is appealable under sec. 3069, Stats. At the time of the entry of the order, therefore, the relator stood on an equal footing with any other person against whom a restraining order had been entered. We discover no special facts or circumstances constituting anything in the nature of an exigency which should arouse the extraordinary jurisdiction of the court in the manner prayed for. If the relator violated the injunction he is in no different position from that of any other contemnor under like circumstances. If he -be convicted in the contempt proceeding he may secure a review by this court in the manner open to all others who have been convicted and sentenced to punishment for contempt. The proper procedure in such cases is quite fully reviewed in State ex rel. Rodd v. Verage, 177 Wis. 295, 187 N. W. 830, and need not here be rediscussed. Whether, in our present view of the proper procedure to secure a review by this court of convictions in contempt proceedings, the case of State ex rel. Att’y Gen. v. Circuit Court, 97 Wis. 1, 72 N. W. 193, relied upon by relator, should be followed, need not here be discussed, as he has not been convicted of contempt. His present complaint is that he has been unlawfully restrained from circulating the document in question, and that question can be [136] brought to this court for review in the manner already indicated. While it follows from what has been said that the writ should be denied, it is proper and perhaps desirable that we should comment briefly upon the general aspects of the case. The petitioner maintains that the order of which he complains works a denial of his constitutional right of free speech. The right of free speech is not an unqualified one. Under our government the common welfare is not subordinate to any individual right. On the contrary, the right of the individual ceases at the point where its exercise militates against the public good. The administration of justice is a delicate and exacting function. Nothing contributes more to the stability of society than confidence on the part of the individual in an honest and incorrupt administration of justice. While the scales of justice should be most delicately poised and responsive to every legitimate influence, no suitor should be obliged to overcome the weight of illegitimate influence, such as bias, prejudice, or passion. An administration of justice that commands the confidence of the individual must zealously and rigorously guard the scales from the influence of every irrelevant consideration. The duty of the court in this respect can scarcely be exaggerated. Its power to do so has never been doubted. For the purpose of our present consideration we assume that the petitioner has the right to publish his contemplated book at the proper time and under proper circumstances. But he does not have the right to- publish anything that will interfere with the orderly and pure administration of justice. He cannot poison the mind of the community from which juries are recruited by a public discussion of the merits of a cause pending in court, between private parties, in which the public has no interest. „ To permit this is to allow a right, which society has secured to the individual, to be used to frustrate the ends and purposes [137] of government. Under such circumstances it becomes an abuse and not an exercise of the right of free speech. The circular in question contained declarations which constituted the basis of three or four actions then pending for trial In the circuit courts for. Milwaukee county. These declarations were made as statements of fact. It was the purpose to impress the reader with their truth. It appeared that some 25,000 of these circulars had been distributed in Milwaukee county. It appears that three cases involving facts set forth in that circular were called for trial subsequent to the issuance of the injunction and the filing of respondent’s return herein. A copy-of the examination of the jurors in each of those cases is appended to the return, from which it appeal's that a number of the jurors called in each case had seen and read the circular. If as a matter of fact the circulation of this paper, tended to frustrate or interfere with the orderly administration of justice in Milwaukee county,, it was within the power of the court to prevent its circulation during the pendency of such cases. Toledo Newspaper Co. v. U. S. 247 U. S. 402, 38 Sup. Ct. 560; Bec Pub. Co. v. State (Neb.) 185 N. W. 339. See, also, notes in 2 British Ruling Cases, 498j and 15 English Ruling Cases, 34. Whether the circulation of the circular in the manner disclosed constituted an interference with the administration of justice in the county of Milwaukee was a question which the judiciary of that county is specially qualified to determine. We suggest, however, that while a court should not hesitate to protect the administration of justice from improper influences, the right of free speech is held dear by every American citizen, and it should be suppressed with great caution, and then only to the extent that seems absolutely necessary to prevent an interference with the course of justice. Likewise, as was said by the federal supreme court in Gompers v. Bucks S. & R. Co. 221 U. S. 418, 450, 31 Sup. Ct. 492, the power to punish fpr coiitempt “is spar [138] ingly to be used.” While courts are necessarily clothed with broad powers in order to enable them to properly discharge their functions, such powers should be exercised with wisdom and discrimination and only for the accomplishment of the purposes which call them into existence. They should not be used arbitrarily, capriciously, or oppressively. With these general remarks, we decline to interfere with the proceeding sought to be restrained, and the writ will be denied. By the Court. — So ordered.