though the court may order that it shall not be published.1 4. Attack on Grand Jury. The publication of an article containing an attack on a grand jury, while in session, and tending to bring the jurors into disrepute and to interrupt a legitimate investigation by them of a matter before them, is a contempt.2 5. Publication Must Relate to Pending Cause. A slanderous and libelous publication concerning the judge, in relation to an act already done, or a decision rendered, cannot be punished by the court as a contempt. However criminal the publication may be, it lacks that necessary ingredient to constitute a contempt, of tending to prejudice the cause or to impede its progress.3 6. Summary Punishment Not Unconstitutional. — The constitutional provisions of the various state constitutions guaranteeing liberty of speech and of publication, invariably qualify such guaranty by providing that persons shall be responsible for the abuse of that liberty. Even in the absence of such expressed qualifications, it could not be said that such guaranties afforded absolute immunity from punishment to those who abuse that privilege.4 7. Punishment within Discretion of Court. — Whether or not a person shall be punished for the publication of matter tending to prejudice the cause, is entirely within the discretion of the court, and a party to the cause cannot raise on error the action of the court.5 1. Where There Is No Tendency to Prejudice Cause. - The object of the section of the California Code authorizing the court to direct the trial to be private was solely to secure decorum in the conduct of trials involving the relation of the sexes, and the disobedience of the order of a court that the testimony be not published is not a contempt, unless it is of such nature as to impede, embarrass, or obstruct the court in the discharge of its duties. Matter of Shortridge, 99 Cal. 526, 37 Am. St. Rep. 78. 2. Attack on Grand Jury.-U. S. v. Duane, Wall. (C. C.) 102; Fishback v. State, 131 Ind. 304. 3. Publication Must Relate to Pending Cause. Exp. Barry, 85 Cal. 603, 20 Am. St. Rep. 248; Storey v. People, 79 Ill. 45, 22 Am. Rep. 158; People v. Wilson, 64 Ill. 195, 16 Am. Rep. 528; Cheadle v. State, 110 Ind. 301, 59 Am. Rep. 199; State v. Dunham, 6 Iowa 245; State v. Anderson, 40 Iowa 207; Rosewater v. State, 47 Neb. 630; State v. Kaiser, 20 Oregon 50; Bayard v. Passmore, 3 Yeates (Pa.) 438. But see State v. Morrill, 16 Ark. 384, in which case the publication held to be a contempt was made after the determination of the cause. Where Cause Still Open. - But where a decree of the court is still open to modification, rehearing, or appeal, the publication of a letter charging the judge with unfairness and improper conduct during the trial of the case relates to a pending cause. In re Chadwick, (Mich. 1896) 67 N. W. Rep. 1071. 4. Constitutional Provisions. State v. Morrill, 16 Ark. 385; Cooper v. People, 13 Colo. 337; People v. Wilson, 64 Ill. 195, 16 Am. Rep. 528; State v. Faulds, 17 Mont. 140; Burke v. Territory, 2 Okla. 499: Respublica v. Oswald, 1 Dall. (Pa.) 319, 1 Am. Dec. 246. In the course of the opinion in State v. Morrill, 16 Ark. 402, the court said: "The coun sel for the defense supposed that the power of the courts to punish, as for contempt, the publication of libels upon their proceedings was cut off by the seventh section of the Bill of Rights, which is in these words: That printing presses shall be free to every person; and no law shall ever be made to restrain the rights thereof. The free communication of thoughts and opinions is one of the invaluable rights of man; and every citizen may freely speak, write, and print on any subject - being responsible for the abuse of that liberty.' The last clause of the section, being responsible for the abuse of that liberty,' is an answer to the argument of the learned counsel. It is a well known fact, that the bench.and the bar have been, in this and all other countries where the law has existed as a distinct profession, the ablest and most zealous advocates of liberal institutions, the freedom of conscience, and the liberty of the press; and none have guarded more watchfully the encroachments of power on the one hand, or deprecated more earnestly tendencies to lawless anarchy and licentiousness on the other. The freedom of the press, therefore, has nothing to fear from the bench in this state. No attempt has ever been made, and we may venture to say never will be, to interfere with its legitimate province, on the part of the judiciary, by the exercise of the power to punish contempts." In Illinois it is held that the court is not a competent judge as to whether there has been an abuse of the privilege. In the case of Storey v. People, 79 Ill. 45, 22 Am. Rep. 158, inferentially overruling People v. Wilson, 64 Ill. 196, 16 Am. Rep. 528, the court, after deciding that the constitutional guaranty applies to words published in regard to judicial conduct, thus concludes: "When it is conceded that the guaranty of this clause of the constitution extends to words spoken or published in regard to judicial conduct and character, it would seem necessarily to follow that the defendant has the right to make a defense which can only be properly tried by a jury, and which the judge of a court, especially if he is himself the subject of the publication, is unfitted to try." 5. The issuance of process for contempt charged to have been committed by the pub - XIII. CONTEMPT OF LEGISLATURE 1. In England. The same inherent power of punishing for contempt belongs to Parliament in England. The House of Commons has it, not because it is a representative body with legislative functions, but because it is a part of the high court of Parliament, the highest court in the realm.1 2. In English Colonies. being a judicial body, has except in those cases where exercise it.3 A legislative assembly of an English colony, not no inherent right to punish for contempt, and Parliament has invested them with it they cannot 3. In United States a. NO GENERAL POWER TO PUNISH. - In the United States the judicial power is vested by the various constitutions in the courts created by the constitutions, and such others as may be created. Neither Congress nor the state legislatures succeeded to those inherent and unlimited powers of punishing for contempts possessed by the English Parliament. Though there was judicial sanction for the prevalence of such an idea in the past, it is now generally recognized that where there is not found in the constitution any general power in the legislature to punish for contempt, that power is limited to cases expressly provided for by the constitution or to cases where the power is necessarily implied from the constitutional functions and duties to the proper performance of which it is essential.5 lishers of newspapers during the progress of a cause rests entirely within the sound discretion of the court, and cannot be controlled by the parties, nor can they appeal from the court's action in the matter. People v. Durrant, 116 Cal. 179. 1. Contempt of Legislature In England. Shaftsbury's Case, 1 Mod. 144; Crosby's Case, 3 Wils. 188; Rex v. Flower, 8 T. R. 314; Reg. v. Paty, 2 Salk. 503; Burdett v. Abbott, 14 East 1; Murray's Case, 1 Wils. 299; Sheriff's Case, II Ad. & El. 273, 39 E. C. L. 80; Howard v. Gosset, 10 Q. B. 359, 59 E. C. L. 359. 2. English Dependencies. Doyle v. Falconer, L. R. 1 P. C. 328; Keilly v. Carson, 4 Moo. P. C. 63; Fenton v. Hampton, 11 Moo. P. C. 347; Ex p. Brown, 5 B. & S. 280, 117 E. C. L. 280; Stockdale v. Hansard, 9 Ad. & El. 1, 36 E. C. L. 13. 3. Speaker of Assembly v. Glass, L. R. 3 P. C. 560; Dill v. Murphy, i Moo. P. C. N. S. 487. 4. United States. See Anderson v. Dunn, 6 Wheat. (U. S.) 204; Stewart v. Blaine, 1 MacArthur (D. C.) 453; Story Const., $$ 845, 849. See State v. Matthews, 37 N. H. 450; Neel v. State, 9 Ark. 259, 50 Am. Dec. 209. 5. Extent of Power. - Kilbourn v. Thompson, 103 U. S. 168, overruling Anderson v. Dunn, 6 Wheat. (U. S.)_204; People v. Keeler, 99 N. Y. 463, 52 Am. Rep. 49; In re Falvey, 7 Wis. 630. Kilbourn v. Thompson. In the case of Kilbourn v. Thompson, 103 U. S. 168, recognized as the most authoritative case in this country as to the power of any legislature to punish for contempts under the constitution creating it, and overruling the case of Anderson v. Dunn, 6 Wheat. (U. S.) 204, relating to the power possessed by Congress to punish contempts, the court in part said: The powers of Congress itself, when acting through the concurrence of both branches, are dependent solely on the Constitution. Such as are not conferred by that instrument, either expressly or by fair implication from what is granted, are reserved to the states respectively, or to the people.' * * * By the second clause of the fifth section of the first article, each house may determine the rules of its proceedings, punish its members for disorderly behavior, and, with the concurrence of two thirds, expel a member;' and by the clause immediately preceding, it may be authorized to compel the attendance of absent members, in such manner and under such penalties as each house may provide.' These provisions are equally instructive in what they authorize and in what they do not authorize. There is no express power in that instrument conferred on either house of Congress to punish for contempts. The advocates of this power have, therefore, resorted to an implication of its existence, founded on two principal arguments. These are (1) its exercise by the House of Commons of England, from which country we, it is said, have derived our system of parliamentary law; and (2) the necessity of such a power to enable the two houses of Congress to perform the duties and exercise the powers which the Constitution has conferred on them. That the power to punish for contempt has been exercised by the House of Commons in numerous instances is well known to the general student of history, and is authenticated by the rolls of the Parliament. And there is no question but that this has been upheld by the courts of Westminster Hall." After a discussion of the principles on which of opinion that the right of the House of Repre- * * b. PUNISHMENT OF CONTUMACIOUS WITNESS-(1) In General. — The power of the legislature to punish as for a contempt a contumacious witness, summoned to give testimony before a committee appointed by it, depends intrusted to government, whether state or national, are divided into the three grand departments the executive, the legislative, and the judicial; that the functions appropriate to each of these branches of government shall be vested in a separate body of public servants, and that the perfection of the system requires that the lines which separate and divide these departments shall be broadly and clearly defined. It is also essential to the successful working of this system that the persons intrusted with power in any one of these branches shall not be permitted to encroach upon the powers confided to the others, but that each shall by the law of its creation be limited to the exercise of the powers appropriate to its own department and no other. In the main, however, that instrument, the model on which are constructed the fundamental laws of the states, has blocked out with singular precision, and in bold lines, in its three primary articles, the allotment of power to the executive, the legislative, and the judicial departments of the government. It also remains true, as a general rule, that the powers confided by the Constitution to one of these departments cannot be exercised by another. * * * * The Constitution declares that the judicial power of the United States shall be vested in one Supreme Court, and in such inferior courts as the Congress may from time to time ordain and establish. If what we have said of the division of the powers of the government among the three departments be sound, this is equivalent to a declaration that no judicial power is vested in the Congress or either branch of it, save in the cases specifically enumerated to which we have referred. If the investigation which the committee was directed to make was judicial in its character, and could only be properly and successfully made by a court of justice, and if it related to a matter wherein relief or redress could be had only by a judicial proceeding, we do not, after what has been said, deem it necessary to discuss the proposition that the power attempted to be exercised was one confided by the Constitution to the judicial and not to the legislative department of the government. We think it equally clear that the power asserted is judicial and not legislative. We are of opinion, for these reasons, that the resolution of the House of Representatives authorizing the investigation was in excess of the power conferred on that body by the Constitution; that the committee, therefore, had no lawful authority to require Kilbourn to testify as a witness beyond what he voluntarily chose to tell; that the orders and resolutions of the House, and the warrant of the speaker, under which Kilbourn was imprisoned, are in like manner void for want of jurisdiction in that body, and that his imprisonment was without any lawful authority. We must, therefore, hold, notwithstanding what is said in the case of Anderson v. Dunn, 6 Wheat. (U. S.) 204, that the resolution of the House of Representatives finding Kilbourn guilty of con * * * * * * tempt, and the warrant of its speaker for his commitment to prison, are not conclusive in this case, and in fact are no justification, because, as the whole plea shows, the House was without authority in the matter. The Chapman Case. In In re Chapman, 166 U. S. 661, the court, by Mr. C. J. Fuller, says: "In Kilbourn v. Thompson, 103 U. S. 168, among other important rulings, it was held that there existed no general power in Congress or in either house to make inquiry into the private affairs of a citizen; that neither house could, on the allegation that an insolvent debtor of the United States was interested in a private business partnership, investigate the affairs of that partnership as a mere matter of private concern, and that consequently there was no authority in either house to compel a witness to testify on the subject. The case at bar is wholly different. Specific charges publicly made against senators had been brought to the attention of the Senate, and the Senate had determined that investigation was necessary. The subject-matter as affecting the Senate was within the jurisdiction of the Senate. The questions were not intrusions into the affairs of the citizen; they did not seek to ascertain any facts as to the conduct, methods, extent, or details of the business of the firm in question, but only whether that firm confessedly engaged in buying and selling stocks, and the particular stock named, was employed by any senator to buy or sell for him any of that stock whose market price might be affected by the Senate's action. We cannot regard these questions as amounting to an unreasonable search into the private affairs of the witness, simply because he may have been in some degree connected with the alleged transactions, and as investigations of this sort are within the power of either of the two houses, they cannot be defeated on purely sentimental grounds." * * * New York Statute. As by the New York Penal Code, § 724, it is declared that it does not affect any power conferred by law upon any public body to impose or inflict punishment for a contempt," the provision of the Revised Statutes conferring the power upon either house of the legislature to punish as for a contempt a witness refusing to answer before it, or before a committee in legislative proceedings (1 Rev. Stat. 154, § 13. subd. 4), was not abrogated by the two provisions of the Penal Code, one (§ 69) making such refusal a misdemeanor, the other (719) declaring that offenses specified in said code, committed after its going into effect, must be punished according to its provisions" and not otherwise." People v. Keeler, 99 N. Y. 463, 52 Am. Rep. 49. In this case it was further held that where the statute relates to the proceedings of the legislative body itself and is necessary and appropriate to enable it to perform its constitutional functions, it is not such an invasion of the province of the judiciary as to bring it within any implied prohibition of the Constitution; and that the power of obtain primarily upon whether his testimony is required in a matter of which the house had conferred on it, by the Constitution, jurisdiction to inquire; and, secondly, whether the witness has in fact been guilty of a contempt. Unless these two essentials co-exist, the legislature is without authority to punish.1 Where Answer Will Incriminate. The same rule, of course, applies to the case of a refusal of a witness to answer a question on the grounds that the answer would incriminate him, before a legislative committee, as to one before a court. Such refusal is not a contempt.2 (2) Right to Take Testimony in Election Contests. One of the functions, which is in its nature judicial, conferred by the Constitution on Congress, and on each state legislature by the constitution of the state, is the right to judge of the qualifications of its own members and to determine contests for membership in that body.3 While engaged in these functions a legislature has the power to punish for contempt the contumacy of a witness summoned before it.4 it was disrespect to the House by contemptuous behavior in its presence within the meaning of the Constitution. Burnham v. Morrissey, 14 Gray (Mass.) 226, 74 Am. Dec. 676. (3) Right to Investigate Conduct of Members. A legislative body has unquestioned authority to examine into the conduct of its members, with the view of exercising its constitutional right of expelling those whose conduct may be found unworthy. Hence, it may institute an inquiry to ascertain the ing information for the purpose of framing laws to meet supposed or apprehended evils is necessary and belongs to the legislature; and statutory provisions, such as are contained in the Revised Statutes (1 Rev. Stat. 158, § I et seq.), authorizing legislative committees to take testimony and summon witnesses are within the limits of legislative powers, as is also a statute authorizing either house to enforce its process by imprisonment of a recusant witness. 1. Contumacious Witnesses. Kilbourn V. Thompson, 103 U. S. 168. A firm which was a debtor to the government was charged with having become interested in a "real estate pool," to the disadvantage of its creditors. A committee of the House was authorized to investigate this charge, and a subpoena was issued to one of the members of the firm to produce certain books and papers before the committee. The witness summoned refused to produce the books and papers, or to testify, and was committed for contempt. The court held that the investigation was not in the exercise of one of the judicial functions imposed on Congress, and that the imprisonment was illegal. Kilbourn v. Thompson, 103 U. S. 168. It seems that this power may only be exercised where the investigation which the legislative committee was conducting was a legislative proceeding which the House was authorized to institute; and also that an investigation instituted for the mere purpose of investigation, or for political purposes, not connected with any intended legislation or other matters upon which the House can act, is not a legislative proceeding. Where, however, public institutions belonging to the state, or public offices, are ordered to be investigated, it is to be presumed that it is with a view of some legislative action in regard to them. People v. Keeler, 99 N. Y. 463, 52 Am. Rep. 49. It Was Held in Massachusetts, that where the committee was appointed by the House of Representatives to investigate the affairs of the State Liquor Agency, the refusal of a witness to testify after having been summoned before 2. Where Answer Would Incriminate or Degrade. Emery's Case, 107 Mass. 172, 9 Am. Rep. 22. See supra, Contempt by WitnessesSelf Crimination. And see the title WITNESSES. Section 102 of the Revised Statutes, declaring that the refusal of any witness, summoned by authority of either house of Congress, to give testimony or produce papers upon any matter under inquiry," before either house, or any committee thereof, is a contempt, and punishable by indictment and prosecution, is not so connected with section 103, which provides that no witness is privileged to refuse to testify upon the ground that his testimony would tend to disgrace or otherwise render him infamous, that the unconstitutionality of the latter section would render the former unconstitutional. In re Chapman, 166 U. S. 661. This was a prosecution by indictment, but an affirmance by the Supreme Court of the constitutionality of the statute is a matter of importance as to the power of Congress to punish for contempt a contumacious witness. 3. Elections. See Kilbourn v. Thompson, 103 U. S. 168. And see also the title CONSTITUTIONAL LAW, vol. 6, p. 882. 4. Power of Committee to Command Clerk to Produce Poll-book. A committee of either house while engaged in taking testimony and making investigations as to a contest of membership, pending therein, with the power to send for persons and papers, may command a clerk of court to produce before such committee poll-books of which he has the custody, affecting the election as to which there is a contest. His refusal to obey the command is a contempt of the House, and may be punished by imprisonment during the session of the legislature. Exp. Dalton, 44 Ohio St. 143, 58 Am. Rep. 800. 5. Conduct of Members of Legislature. - Ex p. Lawrence, 116 Cal. 298; In re Falvey, 7 Wis. 630. truth of a charge that some of its members have been guilty of accepting bribes, and for that purpose may compel the attendance of witnesses before a committee appointed by the legislature for that purpose, and inflict punishment as for contempt for their refusal to attend or testify.1 (4) Power to Compel Production of Private Papers. Whether or not the legislature may have the jurisdiction to institute the particular inquiry, it cannot compel, for its inspection, the production of the private books or papers of a private citizen. The government can have no greater right in this regard than a citizen, to both of whom the courts are open.2 4. Limitation of Legislative Power to Punish by Imprisonment. Whether the legislative body be the creature of a constitution, as are all in the United States, or whether in most respects it possess supreme functions, as do the Houses of Parliament in England, the duration of the imprisonment which it may impose as a punishment for the contempt terminates upon the adjournment of the session.3 XIV. OTHER INSTANCES OF CONTEMPT. An Attempt to Bribe a Juror is punishable as a contempt though no prejudice is shown to have resulted to either party. An attempt to create the belief that a juror or other officer of the court having active duties to perform upon a trial can be bribed, is a contempt of court. And approaching a juror in court for the purpose of influencing his action is a contempt." Endeavoring to Arrange a Signal with one of the jurymen to give information as to how the jury stood with regard to the verdict constitutes contempt.7 Intimidation of Grand Jury. Writing and sending insulting and threatening letters to a grand jury in relation to matters which are the subject of their investigation is a contempt of court.8 A Newspaper Reporter who conceals himself in the jury room and afterwards publishes the proceedings therein is guilty of a flagrant contempt.9 - Influencing Witness to Absent Himself. - Inducing a person to leave the county of his residence, that he may not attend the trial of a cause in which he has been subpoenaed as a witness, is a contempt.10 Although a witness has not yet been subpoenaed an attempt to prevent his attendance is nevertheless a contempt. 11 Interference with Judicial Proceedings - Falsely Justifying as Surety. Sureties in an undertaking bond given to discharge an attachment are, by justifying falsely, guilty of "unlawful interference" with the proceedings in the action, which the New York Code makes punishable as a civil contempt.12 The sureties on 1. Examination into Charges of Bribery.— Ex p. Lawrence, 116 Cal. 298; In re Falvey, 7 Wis. 630. Where the state senate was investigating the conduct of its members, under a published charge that some of them had taken bribes, and had called as a witness the editor of the newspaper publishing such charge, his refusal to give the names of those from whom he had received the information was a contempt of the legislature. The senate had power to examine into the alleged criminal conduct with a view to the expulsion of any member found guilty. Ex p. Lawrence, 116 Cal. 298. 2. Production of Private Papers. - Kilbourn v. Thompson, 103 U. S. 168; Matter of Pacific R. Commission, 32 Fed. Rep. 241; In re McLean, 37 Fed. Rep. 648. But see Burnham v. Morrissey, 14 Gray (Mass.) 226, 74 Am. Dec. 676, affirming a contrary doctrine. See the title PRODUCTION OF DOCUMENTS. 3. Anderson v. Dunn, 6 Wheat. (U. S.) 204; Exp. Dalton, 44 Ohio St. 143, 58 Am. Rep. 7 C. of L.-5 65 800; Crosby's Case, 3 Wils. 188; Burdett v. Abbott, 14 East 1. The constitution of Massachusetts limits the term of imprisonment to thirty days, thus placing a further check on the limits set by general parliamentary law, to the time of the adjournment of the legislature. Burnham v. Morrisey, 14 Gray (Mass.) 226, 74 Am. Dec. 676. 4. Langdon v. Wayne Circuit Judges, 76 Mich. 358. 5. Little v. State, 90 Ind. 338, 46 Am. Rep. 224. 6. Cuddy, Petitioner, 131 U. S. 280. 7. State v. Doty, 32 N. J. L. 403, 90 Am. Dec. 671. 8. Matter of Tyler, 64 Cal. 434. 9. Matter of Choate, 24 Abb. N. Cas. (N. Y. Oyer & T. Ct.) 430; Orman v. State, 24 Tex. App. 495. See supra, Contempt by Newspaper Publications. 10. Hale v. State, 55 Ohio St. 210. 11. Montgomery v. Palmer, 100 Mich. 436. 12. People v. Tamsen, 17 Misc. Rep. (N. Y. Supreme Ct.) 212. Volume VII. |