OPINION
By SKEEL, J:
This is an action in prohibition, invoking the original jurisdiction of the court under the provisions of Article IV, Section 6 of the Constitution of Ohio.
The relators are seeking a writ prohibiting the respondent from enforcing an order excluding relators and all other members of the public- from the court room over which he is presiding as Judge while the said Court is in session and during the time the trial of the case of State of Ohio v. Baker et al, is in progress, the defendants in said
case being charged with pandering, in violation of §2905.15 et seq, R. C., or at any other time, while the court is in session. The relators also seek a revocation of an order excluding relators and other members of the public from the court room presided over by the respondent, said order having been issued February 11, 1955.
The facts are not in dispute. The respondent is a duly elected and qualified Judge of the Court of Common Pleas of the County of Cuyahoga, Ohio. On the 11th day of February, 1955, he was presiding in Court Room 3 of the Criminal Division of said court, and was then conducting the trial of the case of State v. Baker et al. One of the state’s witnesses, who to a degree might be called the prosecuting witness, had concluded her testimony in chief, and was about to be subjected to cross-examination by counsel for the defendants. At the defendants’ request, an order excluding all members of the public from attending the trial was made by the court, it being claimed by their counsel that they would be “better able to compel the witness to tell the truth” if they could cross-examine her in private; that is, if all members of the public, including newspaper reporters, were excluded from the court-room. The respondent, upon the defendants making such request and signing written waivers of the right to a public trial, granted the request and ordered all members of the public out of the court-room during that part of the trial, except court personnel, the jury, counsel, and one witness for the defendants, posting a guard at the door to see that the order was carried into execution. This action seeking a writ of prohibition commenced during the time the relators’ personnel and the public .were excluded while the trial was in progress. It is now a matter of public knowledge that the case has been concluded and the effectiveness ■of the order of exclusion has come to an end, yet it is the desire of the parties that the legal question of the right of the court to make such an order be decided by this Court for a future guide should like circumstances occur, it being stipulated that the respondent has declared he will again exclude the public during trial of a felony under like circumstances.
A writ of prohibition is an extraordinary proceeding. By constitutional authority, a court of superior jurisdiction is authorized by its judgment to direct a court of inferior jurisdiction not to exceed its juris•dfction in the administration of justice. High, in his work dealing with the writ of prohibition, states that the elements that must be established upon which such a writ shall issue are: (1) that an officer seeks to exercise judicial power; (2) that the power about to be exercised, or the -order about to be made, or attempted, is unauthorized by law; and (3) the person seeking the writ has no adequate remedy at law.
■ The writ of prohibition is not only available to a person when a court seeks to exercise jurisdiction which it does not have, but also when it does an act or threatens to act in excess of its legitimate or authorized powers.
The Supreme Court of Ohio, in the case of State, ex rel. Nolan v. Clendening, 93 Oh St 264, quotes with approval from Section 781 of High on “Extraordinary Remedies” as follows:
“The province of the writ is not necessarily confined to cases where
the subordinate court is absolutely devoid of jurisdiction, but it is extended to cases where such tribunal although rightfully entertaining jurisdiction of the subject matter in controversy, has exceeded its legitimate province.”
There is no dispute but that the order about which relators complain was issued by a Judge of a court of record in a proceeding then on trial, the order not being concerned with the issues of the case but had to do with the right of members of the public to enter the court room during the progress of the trial. The persons, constituting members of the public, who were excluded did not have the right to enter an exception on the record because of their exclusion from the court room, yet, if there be a public right to observe a trial in courts of justice, the only way such right can be adjudicated would be by seeking, in an action for declaratory judgment, an order declaring the plaintiff’s rights, or by seeking a writ of prohibition where the order as to the public attendance at the trial exceeds the jurisdiction of the court.
In the case of United Press v. Valenti, 308 N. Y. 71, the court held in paragraph 2 of the syllabus, where a like situation developed:
“2. Notwithstanding that the question on this appeal has become moot, the appeal should be entertained since the problem presented and the principle involved are of importance in the administration of the criminal law.”
We hold that the relators have the right under the pleaded facts to maintain this action.
The question presented for our consideration is whether or not a trial judge has the power to conduct any part of a trial of one charged with felony in secret, or, to state the question a little more broadly, is it a necessary prerequisite in the administration of criminal justice that a trial of one charged with felony be a public trial where the public, with some discretionary limitations, hereafter to be considered, may attend and observe the proceeding? It must be observed that in this case the only reason for making the order excluding the public from attending the trial was the demand of the defendants that a part of their case be conducted in secret. No question of the public morals, safety or health was advanced or considered in making the order of exclusion.
Courts are public institutions. They are maintained by the public as a necessary part of the process of government in maintaining order and adjudging the legal obligations and rights of the people. Judicial power in a criminal case is exercised by an action in the name of the state in which action all have a deep and abiding concern. Any suggestion that law enforcement has any private aspects as to the manner in which justice is administered is completely without foundation. To permit trials of persons charged with felony to be held in secret, the order of secrecy being based entirely on defendants’ request would take from the court its most potent force in support of the impartial administration of justice according to law.
A crime is a public wrong, one directly affecting every member of society and the trial of one charged with criminal conduct is for the determination of the question of whether the conduct of the defendant has violated the laws of the State enforced as a necessary part of main-
taming the social order. Blackstone says in Vol. 4 page 1428, paragraph 5 (Lewis’ Edition):
“Public wrongs or crimes and misdemeanors are a breach and violation of the public rights and duties due to the whole community, considered as a community in its social aggregate capacity.”
The community is deeply interested in the right to observe the administration of justice and the presence of its members at a public trial is as basic as that of a defendant whether such right be provided for in the Constitution or otherwise.
Article I, Section 16 provides:
“All courts shall be open, and every person, for an injury done him in his land, goods, person, or reputation, shall have remedy by due course of law, and shall have justice administered without denial or delay. Suits may be brought against the state, in such courts and in such manner, as may be provided by law.”
In Article I, Section 10, it is provided that a defendant is entitled to a public trial. This constitutional provision is one for the benefit of the defendant. It does not, however, guarantee the defendant a private trial as against the public whose interests are equally involved in the judicious administration of the law.
Historically, there is no foundation for the administration of justice in secret. In the early writings of Greek scholars contributing to the development of Athenian law as administered in public forums, in which forums the democratic way had its beginning, we find the description of the out-of-door sessions of judicial tribunals on the hills about Athens. One famous place was the “Areopagus” where the Senate likewise met and in the words of the goddess “Athena”:
“This court majestic, incorruptible, the sleepless guardian of my land I set.”
(Panorama of World Legal Systems by Wigmore.)
The common law of England, founded on the common experiences of the people, the writings of the early English legal scholars, the development of the Ions of court, the decisions of the traveling judges of the King’s Bench and the trial of civil disputes in the courts of common pleas held in Westminster Hall, was in a degree influenced by the earlier civil law as developed in the open tribunals of Rome The basis of the constitutional guarantee of an “open court” is to be found in the development of the common law and would be a recognized right of the people without constitutional sanction.
It can never be claimed that in a democratic society the public has no interest in or does not have the right to observe the administration of justice. The open court room is as necessary and important in the interest of supporting the administration of justice as in the protection of the rights of a member of the public when on trial for a criminal offense.
In the case of State v. Copp, 15 N. Hamp. Rep. 212, the court, in considering the case of one charged with resisting an order of exclusion as a disturber in a court proceedings, said at page 218:
“But the law never intended that the prisoner should have the power to station himself in any position he might desire during the trial. If
it rested with him to select the location he might find most, convenient, he might see fit to place himself upon the bench or in the jury box. He was present.' at this trial neither as a party or a witness. He went there to gratify his curiosity, and it behooved him to so conduct as not to disturb the proceedings of those who had duties to perform. These duties cannot be discharged unless the justice possesses the power upon an emergency to direct the removal of any individual whose presence he may think prejudicial to the interests of justice. The law does not, indeed, authorize any court to act arbitrarily and unreasonably exclude persons but the right to have the court open is the right of the public and not the individual.” (Emphasis ours.)
In the case of United States v. Kobli, 172 Fed. 2d, 919, the defendant was on trial charged with a violation of the “Mann Act.” The case had attracted some notoriety. When the case was called, the court room was “filled to overflowing” with spectators in no way connected with the trial, including a number of young girls. The trial court thereupon excluded all members of the public, except members of the press, and those directly involved in the case.
One of the defendants objected on the basis that such order prevented her from enjoying the constitutional right to a public trial. The Circuit Court of Appeals reversed the conviction of the defendant on the ground that her constitutional rights had been violated. Headnotes Nos. 2, 3, 4, 8 and 10 provide:
“2. A violation of constitutional right to a public trial necessarily implies prejudice, and defendant need not point out any definite personal injury.
“3. The knowledge that every criminal trial is subject to contemporaneous review in forum of public opinion is regarded as an effective restraint on possible abuse of judicial power. U. S. C. A. Const. Amend. 6.
“4. An important purpose of constitutional guarantee of public trial is the reasonable possibility that persons unknown to parties or their counsel might voluntarily come forward to testify, and another purpose is the enabling spectators to learn about their government and acquire confidence in their judicial remedies. U. S. C. A. Const. Amend. 6.
• “8. The constitutional requirement of a public trial precludes general indiscriminate, exclusion of the public from the trial of a criminal case in a federal Court over defendant’s objection and limits trial judge to exclusion of those persons or classes of persons only whose particular exclusion is justified by lack of space or for reasons particularly applicable to them.
“10. In prosecution on charge of violating the Mann Act, trial judge’s order clearing courtroom of all people except-jurors, witnesses, attorneys and members of the press, over defendant’s objection constituted denial of her constitutional right to ‘public trial’ notwithstanding that order was made for purpose of protecting morals of a large group of youthful spectators in courtroom, and prejudicial error resulting. therefrom was not cured by subsequent offer to readmit such persons whom defendant might designate and who were connected with the case. 18 U. S. C. A. Secs. 2421, 2422; U. S. C. A. Const. Amend. 6.”
And on page 923, the court says:
“We are satisfied that the framers of the Sixth Amendment believed it to be essential to the preservation of the liberty of the individual that, to the extent and within the limits which we have indicated, members of the general public should be admitted to every criminal trial even though it might appear that, in a case such as the one before us, most of them come only out of morbid euriousity. This concept of the common law which the framers believed important to be preserved as a protection for the individual and a restraint upon the possible abuse of judicial power was well expressed by Justice Bayley for the Court of Kings Bench in the case of Daubney v. Cooper, 1829, 10 B & C 237, 240, 109 Eng. Re. 438, 440 as follows:
“ '* * * we are of opinion, that it is one of the essential qualities of a Court of Justice that its proceedings should be public, and that all parties who may be desirous of hearing what is going on, if there be room in the place for that purpose, — provided they do not interrupt the proceedings, and provided there is no specific reason why they should be removed, — have a right to be present for the purpose of hearing what is going on.’ ”
In the case of State v. Hensley, 75 Oh St 255, the court, on pages 265 and 266, in considering the constitutional right of a defendant to have a public trial in a rape case, said:
«* * * jlow much should be, and we think is necessarily and properly left to the trial judge who is obliged to insist upon the orderly conduct of the public business and whose highest duty is the securing to the parties the defendant as well as the State, a fair and impartial trial; but the people have the right to know what is being done in their courts and free observation and the utmost freedom of discussion of the proceedings of public tribunals, that is consistent with truth and decency, tends to the public welfare * * (Emphasis added)
And in the case of State v. Grissfulli, 135 Oh St 87, the court in defining a criminal trial, said:
“In its strict definition, the word ‘trial’ in criminal procedure means the proceedings in open court after the pleadings are finished and the prosecution is otherwise ready. * * *”
In the case of State v. Holm, reported in 224 P. 2d, 500, the court engaged in an exhaustive analysis of the case law on the subject of a “public trial.” Headnotes Nos. 16 and 17 provide:
“16: Criminal trial must be public though there is no specific provision to that effect in the State Constitution.
“17: A trial court in a criminal prosecution should be cautious in making an order of exclusion of spectators from a trial and should do so only when public interest necessarily requires it.”
And on page 508 of the report the court said:
“The Attorney General contends that the Constitution of this state does not guarantee a defendant in a criminal case a public trial. It is true that no specific provision to that effect is contained in the Constitution of this state along with the Constitutions of only three other states, namely, Massachusetts, New Hampshire and Virginia. But the Supreme Court of the United States has held that due process of law includes those immutable principles of justice which inhere in the very
idea of free government. Holden v. Hardy, 169 U. S. 366, 389, 18 S. Ct. 383, 42 L. Ed. 780, and those fundamental principles of liberty and justice which lie at the base of all our civil and political institutions. Herbert v. Louisiana, 272 U. S. 312, 316, 47 St. Ct. 103, 71 L. Ed. 270. And in the case of In re Oliver, 333 U. S. 257, 273, 68 St. Ct. 499, 507, 92 L. Ed. 682, the Supreme Court held that:
“ ‘In view of this nation’s historic distrust of secret proceedings, their inherent dangers to freedom, and the universal requirement of our federal and state governments that criminal trials be public, the Fourteenth Amendment’s guarantee that no one shall be deprived of his liberty without due process of law means at least that an accused cannot’ be sent to prison without a public trial. Hence, there seems to be but little choice for this court in determining whether anything less than that is meant by Section 8, Article 1, Ohio Constitution which says that:
“ ‘All courts shall be open,’ and by Section 6 of Article 1 which provides that ‘No person shall be deprived of life, liberty or property without due process of law.’ However, that may be, the authorities seem to be in agreement that a public trial was a common law right and since this state has adopted the common law, the right to a public trial is, in the absence of a statute — and we have none — as good a guarantee as though it were contained in our Constitution. As early as 1565, Sir Thomas Smith, writing on the laws of England, wrote of the necessity of as many persons as might be present hearing what witnesses had to say. Sir Matthew Hale in 1670 wrote of the excellence of trials in England by reason of having the courts open to the public. See 6 Temple Law Quarterly 382. In Blackstone in his Commentaries III, 373, the author states:
“ ‘This open examination of the witnesses “viva voce” in the presence of all mankind is much more conducive to the clearing up of truth than the private and secret examination taken down before an officer or his clerk in the ecclesiastical courts and all others that have borrowed their practice from the civil law, where a witness may frequently depose that in private which he will be ashamed to testify in a public and solemn tribunal.’
“See also the statement of Jeremy Bentham, Rationale of Judicial Evidence as quoted in VI Wigmore On Evidence (3rd Ed) Section 1834. In the case of Commonwealth v. Fugmann, 330 Pa. 4, 198 A. 99, III, the court states: (in dealing with the essentials of a criminal case)
“ ‘The essentials of a trial by jury of a defendant in a criminal case as known at the common law were; (1) a jury composed of twelve eligible persons duly summoned, sworn and impaneled for the trial of the issue; (2) a plea entered; (3) an ample right of challenge both for cause and peremptorily, secured to defendant; (4) a full, fair, and public trial “under the superintendence of a judge empowered to instruct them on the law and to advise them on the facts * * *”; (5) proper and sworn testimony for the jury’s consideration; (6) unanimity of the vote supporting the verdict * * * A departure from any of these essentials would be a deprivation of “the right to trial by jury.” See also Commonwealth v. Blondia, 324 Mass. 564, 87 N. E. 2d, 455.’”
In the case of People v. Hartman, 103 Cal. 242, 37 P. 153, 154, the court said:
“The trial should be ‘public’ in the ordinary common sense acceptation of the term. The doors of the court room are expected to be kept open, the public are entitled to be admitted and the trial is to be public in all respects as we have heretofore suggested, with due regard to the size of the court room, the convenience of the court, the right to exclude objectionable characters, and youth of tender years, and to do other things which may facilitate the proper conduct of the trial.”
In Vol. VI, 3rd Ed. of Wigmore on Evidence, parag, 1834 and 1835, the subject is dealt with from the standpoint of the effect of a public trial “as security for testimonial trustworthiness.”
On page 332, the author says:
“Its operation intending to improve the quality of testimony is twofold. Subjectively, it produces in the witness’ mind a disinclination to falsify; first, by stimulating the instinctive responsibility to public opinion, symbolized in the audience and ready to scorn a. demonstrated liar; and next, by inducing the fear of exposure of subsequent falsities through disclosure by informed persons who may chance to be present or to hear of the testimony from others present. Objectively, it secures the presence of those who by possibility may be able to furnish testimony in chief or to contradict falsifiers and yet may not have been known beforehand to the parties to possess any information.”
There are many cases to be found which hold that a defendant is privileged to waive his constitutional right to a public trial, and where he has waived such right, he cannot thereafter complain. The facts in this case show that the defendants waived the right to a public trial in writing. Certainly they cannot now prosecute error where the court excluded the public at their request. But the defendants cannot waive the right of the people to insist that the proceedings of the courts, insofar as practicable and in the interest of the public health and public morals, be open to public view. In other words, a defendant has no right, constitutionally or otherwise, to a private trial, that is, one hidden from the public view.
In coming to this conclusion, we do not recede from our conclusion in the case of State v. Clifford, 97 Oh Ap 1, affirmed 162 Oh St 370. The courts must be conducted in the interests of maintaining liberty under law. The litigants are the first consideration of the court and the judge may enforce reasonable rules to afford complete court room decorum and prevent any and all activities not directly connected with the trial which would in the slightest distract the attention of those engaged in the proceedings.
The judge in exercising his complete control of the proceedings may exclude those whose conduct is of a disturbing nature, or whose presence is likely to interfere with the administration of justice as well as making such orders of exclusion as will protect the public health, the public morals and the public safety. With these limitations it is the duty of the trial judge to afford both the state and the defendant a trial in “open court.”
It is suggested that the relators are the only contending parties in this action and that they are seeking a privilege for personal advantage. We do not so read the record. Private rights are not here involved.
The contentions here are on behalf of the public. The trial of a criminal case is a judicial proceeding to be conducted in “open court,” and open to public view. The trial of a criminal case is a public matter; an action filed in the name of the State. The rights of representatives of the press can, however, rise no higher and by the same token, can be no less, than the rights of any other member of the public. So long as the means adopted in observing trial events stay within the rules of court and do not distract from or disturb the solemnity of the proceeding which is so necessary in the conduct of a public trial in the administration of justice, the right of an employee of a newspaper is the same as any other person. It might be suggested that since a great majority of the public, either because of lack of time or space limitations of the court room, or for lack of direct interest, are prevented or unable to attend judicial proceedings whereby their knowledge about such proceedings can be gained only through the work of news-gathering and disseminating agencies, and therefore, when judicious limitation of those attending a public trial is necessary, such fact should be considered in favor of allowing members of the press to attend. We think there could be no injustice in giving consideration to circumstances of this kind.
We are not here concerned with freedom of speech or of the press, or what should be reported through or by the press or news-gathering agencies. The criminal law must of necessity deal with matters not generally the subject of parlor conversation. We are not called upon to consider the propriety of publishing the sordid details of a criminal trial. It must be recognized that in such a trial, the trial judge not only has the right but is duty bound to exclude from a trial involving a morals offense those, who by reason of immaturity or otherwise would be harmfully affected in attending such a proceeding.
This does not mean that such a proceeding should be conducted in secret. The public morals are not protected by trying to hide its sins behind closed doors. Better that we know our faults that we may ever increase our efforts to live in social rectitude.
From the agreed facts in this case, no question of public health was involved, nor could it be said that the public morals were given consideration or formed the basis of the order of total exclusion of the public from the trial and locking the court room doors while a part of the trial was in progress. Those attending in no way were disturbing the trial. The sole ground for the total exclusion was at the request of the defendants, it being claimed by them that if the members of the public were excluded, they might be able to make the witness “tell the truth” or at least what their version of the truth might have been Such a request cannot be justified and the order excluding the public from a public trial was, under the agreed facts of this case, without legal foundation.
Writ allowed. Exceptions. Order see journal.
KOVACHY, PJ, HURD, J, concur.