In re Chadwick

67 N.W. 1071, 109 Mich. 588, 1896 Mich. LEXIS 906

• Court: Michigan Supreme Court
• Decided: June 30, 1896
• Status: Published

Opinion

Grant, J.

(after stating the facts). The power to punish for contempt is inherent in, and as ancient as, courts themselves. It is essential to the proper administration of the. law, to enable courts to enforce their orders, judgments, and decrees, and to preserve the confidence and respect of the people, without which the rights of the people cannot be maintained and enforced. Law writers and decisions, both ancient and modern, have recognized this power. Blackstone said:

“Contempts may arise by speaking or writing contemptuously of courts or judges acting in their judicial capacity, by printing false accounts of causes then depending in judgment, and by anything, in short, that demonstrates a gross want of that regard and respect which, when once courts of justice are deprived of, their authority, so necessary for the good order of the kingdom, is entirely lost among the people. The process of attachment for these and the like contempts must necessarily be as ancient as the laws themselves. A power, therefore, in the supreme courts of justice to suppress such con-tempts by an attachment of the offender, results from the first principles of judicial establishments, and must be an inseparable attendant upon every superior tribunal. Accordingly, we find it actually exercised as early as the annals of our law extend. The contempts that are thus punished are either direct, which openly insult or resist the powers of the courts or the persons of the judges who preside there, or else are consequential, which (without such gross insolence or direct opposition) plainly tend to create an universal disregard of their authority.” 4 Cooley, Bl. 283-286.

Similar statements of the existence and exercise of this power are found'in other, earlier law writers. This power exists in the legislature, though it is not expressly authorized by the Constitution. “It is a necessary and incidental power, to enable the house to perform its high functions, and is necessary to the safety of the State. It is a power of protection.” The judicial department of the government cannot review these proceedings before the legislature. Cooley, Const. Lim. 133, 134. Is it not equally essential and necessary for the protection of the courts? The Constitution of Michigan is entirely silent upon the subject of contempts, in both the legislative and judicial departments. The legislature, acting upon this power inherent in itself, early enacted provisions for the punishment of contempts of its authority. 1 How. Stat. §§ 38, 39.

Proceedings for contempt are not criminal causes within the intent and meaning of the Constitution of the United States or of this State. If they were, then the party accused of contempt would be entitled to a jury trial. Our own. Constitution provides that “circuit courts shall have original jurisdiction in all matters, civil and criminal, not excepted in this Constitution and not prohibited by law.” Article 6, § 8. It also provides that “in every criminal prosecution the accused shall have the right to a speedy and public trial by an impartial jury.” Article 6, § 28. We are not aware of any decision under a constitution similar to ours holding that pne accused of contempt is entitled to a jury trial. It is apparent that this power should be lodged in the court. It is repugnant to all ideas of propriety to say that a jury should determine whether an act committed or statement made in the presence of the court or outside it was insulting and degrading to the court itself, and tended to obstruct the due course of justice. The authorities are nearly uniform that the court must determine the question. Such has been the uniform practice in the courts of this State. “Cases of contempt of court were never triable by jury, and the object of the power would be defeated in many cases if they were. The power to punish contempts summarily is incident to courts of law and equity.” Cooley, Const. Lim. (4th Ed.) 394, note 2. The judicial department is entirely distinct from the legislative, and the Constitution leaves this power existing in the court as it was at the common law. The legislature enacted the following provisions in regard to contempts in courts of record:

“Every court of record shall have power to punish, as for a criminal contempt, persons guilty of either of the following acts, and no others: (1) Disorderly, contemptuous, or insolent behavior, committed" during its sitting, in its immediate view and presence, and directly tending to interrupt its proceedings, or to impair the respect due to its authority; (2) any breach of the peace, noise, or disturbance directly tending to interrupt its proceedings; (3) willful disobedience of any process or order lawfully issued or made by it; (4) resistance willfully offered by any person to the lawful order or process of the court; (5) the contumacious and unlawful refusal of any person to be sworn as a witness; and, when so .sworn, the like refusal to answer any legal and proper interrogatory; (6) the publication of a false or grossly inaccurate report of its proceeding; but no court can punish as a contempt the publication of true, full, and fair reports of any trial, argument, proceedings, or decision had in such court.” 2 How. Stat. § 7234.

In State v. Morrill, 16 Ark. 384, in a very able and exhaustive opinion, the court discusses this power, and denies the right of the legislature to interfere with the .jurisdiction of the courts on this subject. The limits imposed by the Arkansas statute are the same as in that of Michigan. The above provisions of our statute, in so far as they define contempts, are simply declaratory of the common law upon the subject. LangdonY. Wayne Circuit Judges, 76 Mich. 367. Of this statute this court "there said:

“ Courts of record in this State have inherent power to Pear and determine all contempts of court which the superior courts of England had at the common law, and the statute has not undertaken to limit or prohibit their jurisdiction in the matter of contempts. The statutes ■are in affirmation of the common-law power of courts to punish for contempts, and, while not attempting to curtail the power, they have regulated the mode of proceeding and prescribed what punishment may be indicted.”

Many other States have adopted similar provisions, but whether under constitutions like our own we have not taken the time to ascertain. Usually these provisions have been found ample, and undoubtedly the desire of the courts has been to follow them without questioning the power of the legislature to absolutely control their jurisdiction in this regard. It would seem to follow that, if the legislature may curtail this jurisdiction, and determine that in no other matters than those for which it may provide shall the courts have jurisdiction, it may take away the power to punish entirely. Judges of courts of record are amenable to the people for the abuse of the power conferred upon them by the Constitution, and may be impeached. The case of Judge Peck is a notable example. In State v. Morrill, supra, the court uses this forcible language:

‘ ‘ The legislature may regulate the exercise of, but cannot abridge, the express or necessarily implied powers granted to this court by the Constitution. If it could, it might encroach upon both the judicial and executive departments, and draw to itself all the powers of government, and thereby destroy that admirable system of checks and balances to be found in the organic framework of both the Federal and State institutions, and a favorite theory in the governments of the American people. As far as the act in question goes, in sanctioning the power of the courts to punish as contempts the ‘ acts ’ therein enumerated, it is merely declaratory of what the law was before its passage. The prohibitory feature of the act can be regarded as nothing more than the expression of a judicial opinion by the legislature that the courts may exercise and enforce all their constitutional powers, and answer all the useful purposes of their creation, without the necessity of punishing as a contempt any matter not enumerated in the act. As such, it is entitled to great respect; but to say that it is absolutely binding upon the courts would be to concede that the courts have no constitutional and inherent power to punish any class of contempts, but that the whole subject is under the control of the legislative department; because, if the general assembly may deprive the courts of power to punish one class of contempts, it may go the whole length, and divest them of power to punish any contempt.”

If the legislature should enact a law that courts have not the power to punish a juror for contempt for refusing to obey its mandate summoning, him to appear as a juror, or if, when appearing, he should refuse to act, would such act be constitutional? No high-minded and self-respecting lawyer would occupy the position of judge under such circumstances. In Cooper v. People, 13 Colo. 367, it is said

“It was said in argument by counsel for respondents ‘that by the common law every judge was regarded as the direct representative of the sovereign, and upon this fiction the power to punish for contempt was based/ With us the people have been substituted for the crown. The courts are created by the people, and are dependent upon the popular will for a continuation of the powers granted. They are the people’s courts, and contemptuous conduct towards the judges in the discharge of their official duties, tending to defeat the due administration of justice, is more than an offense against the person of the judge; it is an offense against the people’s court, the dignity of which the judge should protect, however willing he may be to forego the private injury.”

In Re Woolley, 11 Bush, 111, the court uses this language:

“We will not, in this case, determine whether, under the Constitution, the legislative department, under the guise of regulating proceedings in cases of contempts, can take from the judiciary the power to preserve its independence and equality by protecting itself against insults and indignities. The right of self-preservation is an inherent right in the courts. It is not derived from the legislature, and cannot be made to depend upon legislative will.”

In Ex parte Robinson, 19 Wall. 510, the court said:

“ The power to punish for contempts is inherent in all courts. Its existence is essential to the preservation of order in judicial proceedings, and to the enforcement of' the judgments, orders, and writs of the courts, and consequently to the due administration of justice. The moment the courts of the United States were called into existence and invested with jurisdiction over any subject, they became possessed of this power.”

In the same opinion it was doubted whether the act of Congress of March 2, 1831, upon the subject of contempts, could be held to limit the authority of the Supreme Court, which derives its existence and power from the Constitution. It was, however, held to apply to those courts which were the creatures of Congress, and not of the Constitution.

Chief Justice Wilmot, in Rex v. Almon, 8 State Tr. 59, said:

“The arraignment of the justice of the judges * * • * excites in the minds of the people a general dissatisfaction with all judicial determinations, and indisposes their minds to obey them; and whenever men’s allegiance to the laws is so fundamentally shaken it is the most fatal and the most dangerous obstruction of justice, and, in my opinion, calls out for a more rapid and immediate redress than any other obstruction whatsoever; not for the sake of the judges as private individuals, but because they are the channels by which the king’s justice is conveyed to the people.”

See, also, Middlebrook v. State, 43 Conn. 268 (21 Am. Rep. 650).

We have referred to this subject and the authorities bearing upon it for the purpose of showing that this power of the legislature is, at least, an open question. Fortunately, it is not necessary to pass upon it in this case, and we refrain from doing so. We must not, however, be understood as assenting to the proposition that the legislature, under the guise of regulation, may destroy a constitutional power of the courts.

1. The contention of the respondent that his letter did not refer to a case pending in court cannot be maintained. The decree had not been enrolled. It was still subjéct to modification upon motion. The court might order a rehearing. No appeal had then been taken to this court. The costs had not been taxed, and no execution issued. Neither was it in condition to issue execution. The case cannot, therefore, be held to have reached that stage where it can be said that it was not pending in that court. Fishback v. State, 131 Ind. 304. Aside from the above consideration, however, the statute does not, in terms, limit the power to, punish for contempt to cases pending in the court. Under respondent’s contention, a party may threaten to do an act, or charge corruption upon the judge, or that he has submitted to private interviews with the litigants, and, if the case is then pending, he will be subject to summary punishment by the court, but, if the decree has been pronounced, or judgment rendered, or order made, he may, the next moment, with impunity do the same acts or utter the same statements, and leave the judge to the sole remedy of an action for libel or slander. This is too narrow a construction of the law of contempts, and is not sustained by the best-considered cases. In this connection the language of Chief Justice Kent in Yates v. Lansing, 5 Johns. 282, is applicable:

“Whenever we subject the established courts of the land to.the degradation of private prosecution, we subdue their independence and destroy their authority. Instead of being venerable before the public, they become contemptible, and we thereby embolden the licentious to trample upon everything sacred in society, and to overturn those institutions which have hitherto been deemed the best guardians of civil liberty.”

This question is very ably discussed in the leading case of Com. v. Dandridge, 2 Va. Cas. 408, in which case a party litigant in a suit which the court had decided met the judge shortly after on the steps leading into the courthouse, and charged him with having acted corruptly in the case.

The true rule is stated in Neel v. State, 4 Eng. (Ark.) 259 (50 Am. Dec. 209):

“By the common law, a court may punish for contemptuous conduct toward the tribunal, its process, the presiding judge, or for indignities to the judge while engaged in the performance of judicial duties in vacation, or for insults offered him in consequence of judicial acts; but indignities offered to the person of the judge in vacation, when not engaged in judicial business, and without reference to his official conduct, are not punishable as contempts.”

The charges in the letter of Mr. Chadwick had direct reference to the official conduct of the judge, and not to his private character and acts. Fortunately, the occasion for the exercise of this power by the courts of this State has been infrequent. The courts have seldom, if ever, assumed jurisdiction and inflicted punishment where an enlightened public conscience has not justified it. So long as critics confine their criticisms within the facts, and base them upon the decisions of the court, they commit no contempt, no matter how severe the criticisms may be; but when they pass beyond that line, and charge that they have not had a fair trial or hearing on account of the corruption of the 'presiding judge, or his listening to arguments and personal interviews out of court, the tendency is to poison the fountain of justice, and to create distrust, and destroy the confidence of the people in their courts, which are of the utmost importance to them in the protection of their rights and liberties. It is said in Com. v. Dandridge:

“And if the power of punishment stop here, a curious consequence may ensue. A man may be attached for threatening to do that for which he could not be attached when actually done. One says of a judge, ‘ If he render a certain judgment against me, I will insult or beat him.’ For this he may be attached. But, if (the judgment having been rendered) the insult be actually offered, an attachment no longer lies, because the contempt is in relation to the past conduct of the judge, and to a case no longer pending. A recurrence to original principles—the only true test—by demonstrating that the weight, authority, and independence of the court may be equally assailed either way, will prove that this distinction is merely ideal.”

2. It is next insisted by the respondent that he purged himself of the contempt by his answers, both to the petition and to the interrogatories, by stating that he intended no charge of improper conduct on the part of the presiding judge, and that the subsequent proceedings were, therefore, beyond the jurisdiction of the court. Where the language is susceptible of two interpretations or constructions, and the party charged asserts under oath that he did not intend the article to be construed as alleged in the innuendoes, he is purged of the contempt; but if the publication is fairly susceptible of but one construction, and its purport is to defame and degrade the court in the eyes of litigants and the public, his dehial of any intended wrong does not operate to purg’e him of the contempt. People v. Wilson, 64 Ill. 195 (16 Am. Rep. 528); Fishback v. State, 131 Ind. 304; Sturoc’s Case, 48 N. H. 428 (97 Am. Dec. 626); In re Woolley, supra.

3. It remains to be considered whether the language was of such a character that his denial of intended wrong purges from the contempt. We should be glad to so hold if we considered it possible to do so. The language, however, is susceptible, in our judgment, of but one interpretation, namely, that the defendants in that suit, the clients of the respondent, had not had a fair trial; that this was due to the action, largely, of Judge Eldredge; that the regular circuit court judge, whose duty it was to hear the case, if there were not legal obstacles in the way, was driven from the performance of his duty by persistent attacks upon him; and that Judge Eldredge had submitted to private interviews with Mrs. Botsford in regard to the case. If this language, published and scattered among the people, does not tend to throw discredit upon the courts, to create suspicion as to their fairness, and to degrade them in the eyes of the people, it would be difficult to find language which would. The publication bore its natural fruit. A public meeting was called and held, ostensibly to aid the Fitzgeralds, and to raise money to assist them in appealing their case to this court. At that meeting the name of Judge Eldredge was hissed, and there were cries from some in the audience, “To hell with Judge Eldredge! ” It was disclosed by the evidence that there was no foundation whatever for the charge that Judge Vance had been driven from hearing the case, or that Judge Eldredge had submitted to private interviews with Mrs. Botsford.

We are compelled to hold that the finding of the circuit court was correct. The proceedings are therefore affirmed, and the record remanded.

Montgomery, Hooker, and Moore, JJ., concurred. Long, C. J., did not sit.