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SUPREME COURT SUPPORTS
BY MAJORITY DECISION
RULING OF CIRCUIT JUDGES
The three Justices of the Supremo
Court sat jesterday afternoon to render
tho court's decision on the Walter O.
Fmlth contempt case. Chief Justice
Trcar's opinion. In hoe conclusion
Justice Galbralth concurs, Is given In
full below. Following Is the syllabus
of tho majority opinion.
"On habeas corpus to test the nihil ty
of n Judgment for contempt, the court
mtij consider questions of Jurisdiction
only ami not questions of mere Irregu
larity or error
I All reasonable intendments are
mane in tavor or me jurisdiction 01
superior courts of record whin their
Judgments arc attacked collaterally
"Whether an answer under oath b)
one cited for contempt operates as a
purgcr 01 not depends on the clrcum
ftances i "Whether all three Judges of the
l'iret Cluult ma) sit together as a
totirt or not Is Immaterial If, when they
c'o sit together, the presiding Judge for
, tho term substantially conducts tha
proceedings and flntlly pronounces
Judgment as If he alono constituted
tho court the others being deemed tn
act In an advisory capacity only."
' Hie dual order of the Supremo
I Court Is, "The petitioner Is remanded
to the custody of the High felvcrlff '
I Smith & Lewis and Andrews, I'ctcrs
& Andr.icle for the petitioner, Geo A.
i Justice I'erry, dissenting, holds In
siibHanco that If It was contempt, tho
pffenso was not committed In presence
of the court and tueicfnrn was con
structive contempt, which a law of this
Tcrrltorj sa)s Is not pcrmlssnblc.
Opinion of the Court, by Frear, C. J.
J The facts and much of tho law are
tet forth In Mr. Justice Terry's dis
senting opinion. The case Is one of
There Is no doubt that tho publlca-
. . i . . '
tlon In question would be held a con
tempt nt common law whether It
should be regaided as relating to a
pending case or to a terminated case,
or to the Judge generally without ref
eicncc to any particular case, or
whether It was In the presence of tho
court or not. There Is also no doubt
that It should be held a contempt un
der our statutes. If tho decision In the
Hush case, 8 Haw, 221, should be fol
lowed; for, according to that decision,
the Legislature In providing, by the
act of 1898 (I ,L. See. 202), that con
structive contempts should no longer
be punishable as suih, regarded as con
tlvo contempts onl those that wero
not enumerated In tho previous statute
(1. L. Sec 257) and did not mean to
Include all those that arc generally ro
garded as constructive contempts, and
tho publication In question clearly
comes within at least one of the classes
rnumeiattd In tho previous statute.
If, therefore, this should be regarded
ns a case of constructive contempt un
der the general law the main question
ui'i luv hiui:iui lun mi: .mint iiui-oiiuu
for consideration would be whether tho
.,-....... ! ... 1.....1. ..i ,., ...
lll-VIOIUIl 111 IIIU UUBII LHBV BMUUIU U-1
followed or reversed. Assuming that
tho decision wns sound when It was,1'"1"' l"" ' ' '
rendered, thero might still be a qtics-' 0"l(1 "0, JB"c'l- Imvvcver In "cr-i
tlon whether tho publication, If It could . lool;"'K these Irregularities ns counsel
bo considered as relating only to tho '
.., ,i c ... . ,i, i.i n.
irully. and not to the pending case,'" ,n,t ,f ,tl'0 rvecor'1 ''ll0 '''"jt
could bo regarded as a contempt pun- B,e,s '"', ' substance that the pet!-
Ishablo summarll), now that wo havo ' u",-r "" i'' "r ei.c..,
come under the provisions of the Ted-, ' n no matter ln question. Intending
oral Constitution relating to freedom , tl",re,)y l0 "iron 'Hwcspeet upon tho
of speech and of tho press, which, nl- J,l"I aIul, '?, ',r(sout l,1 ,ormcr ac:
though not differing materially from l0" ' l'-i" etc. manner and
tho corresponding constitutional pro- to I'rcjiidlee the caso In the minds ot
visions In forco hero when tho Hush
case wns decided, might perhaps ba
construed differently to somo extent.
Seo State v Circuit Court, 97 Wis. 1.
Contempt and Habeas Corpus
Hut must wo regard this ns a case of
constructlvo contempt under tho gen- niiminlstrntlon nnd by knowingly pub
rial law? It mny havo been such In ning an unfair report of the pro
fnct. Wo may havo found it such if c,c,iiiigH of tho com t and malicious In
we had passed upon tho question In tho lcctlvca ngalnst tho court nnd Jury
Hist ItiBtauco, or wo might find It such t, ,,,,. t0 brng tho nrtmn8lrtion of
if tho caso vvcto hero on appeal, or juMle nt0 contempt, etc, did corn
perhaps even on a writ of error, llut n lt rontrmi,t of court No allegation
must wo regard It us such In these wns mado In tho petition, nor was any
habeas coiptis proceedings? Tho Clr- orfer n)nilo )n t,s tourt t0 10w ju8l
tult Court Is n court of general and tthCio or under what circumstances th
suneilur luilscllctlon. Contempt eases s..,i.ii..ti,n .! t,,in,i,n innL. in.
are not appealable or subject to ro -
mow uy writ oi error uiiuer uur ui-1 these things In tho lower mint by tho
utes. Habeas corpus Is n collateral tistlmony of tho witnesses for tho pe
proc ceding In n collateral proeeedlng tIt0Ilcr or on cros8-exaiiilnntlon of wit
mcio Iriegularlties nnd eriors cannot ,,,, n,.ni,,ot i,i, np in nnv oiimi-
bo Inquired Into ns on appeal or cr-mnnmr tlmn by tho petitioner's ans
lorj only questions of Jurisdiction can wer 1mlcr oath ,icnyinB knowledge
bo Inquired Into, und every presump- of Ul0 ,irn,iPncy ot tho lecoml cubo and
tlon Is Indulged In support of tho Juris- iniCKI1B that tho publication related to
diction of a superior court. On appeal ,,. nrat rn80 oniv
or error, Judgments of superior com Is,
at least If tho Jurisdiction Is limited.
may bo set aside, It Jurisdiction does
not appear on tho faco of the record,
but on habeas corpus they may bo sot
aside, only when juilsdlctlon affirma
tively appeal a to be wanting.
In Cudil) petitioner, 131 V S 280,
tho pctltionci Bought release op habeas
corpus from a Judgment of contempt
The net constituting tho contempt was
set forth In the Judgment, but It did
not appear whether tho net was com-
mlttfwl In tlin tirnPTW n nf tlin rrillrt or
not nnd bo whether It was covered by
the statute or not Counsel contended
Hint tho act was not commute,! in tne
comt building or whllo tho court was
In session und that the enso was there-
fntn rtlMt IniriilHlinliln from nnothei case
that wns argued and decided nt the
same time. In which It uns held that
nn net committed In a room near the
court room and whllo tho court was In
session wus "In the presence" of the
lourt It mi cared that tho act consist
ed of an attempt to Influence one who
mil been Inipincllcd ns n Juror for the
term but before ho was called for the
particular case Appareiitl It was In
fact (ns nppeared bj tho niord of the
lower court. In re Cudd). 10 I'cd It.
G2, but nut by the record In the Su- found that the publication or clrctila
premc Court) committed a quarter of tlon took place In tho court room or
a mile from the court house und when
the court was not In session. The court
said In substance that neither the pe-
tltlon for the writ nor tho part of the
iciord of the lowei court that was pro-
ducid showed the partlctihr totality
where the net was committed, and that
upon a collateral attack by hnbeas cor-
pus ever) Intendement was made In
support of the Jurisdiction of supclor
courts, and remanded the petitioner to present. It Is not char whether tho
custody petitioner had unjthlng to do with the
In Unsatisfactory State. I publication or cliculjtlon In or mar
Tho present cisc Is beforo us In a lllc co,lrt room or "ot- Thl ' cr
very unsitlsfnctoo state 'I ho nilttl-1 nintcrl.il. unless the pctltloper i oulel
mils seems to refer to two convictions.'110 regarded as responsible In law for
both, however, apparently Int.ndod to lhc pulillcatlon anil circulation there
cover the same or nearly the s-imo ns a natural and ptobable consequence
ground, the one referring for tho facts,0' tllc publication and circulation of a
to the nflldavlt on which the citation raI,tr r ,lcl Rencral circulation In
was Issued, the other purporting to set ,lu' dt' bno n trlal as lauding
forth the facts and, mining other Some Nice Questions,
things stating tint tho published mat- Whether he should bo thus held ro
tor was false malicious, etc and had sponsible Is a uiio question, the nlllim
special reference to tho cite on trial atlvo being held by vor icspct table
and to the Judge presiding therein and uuthoritv, and no argument or author
was circulated and published In tho Ity having been presented on behalf of
court room during the trial of tho case, tho petitioner in support of tho noga
that It was calculated to and did prcju- tlvo Whether the decision In tho Hush
dice the minds of tho Jur) and pre-'case vvhlih. If followed, rupilns us to
vent a fair and Impartial trial and wad lemand the petitioner to custody. In
calculated to and did obstruct tho court ( nn view that can pioperl bo taken of
In the administration of Justice, nucl i the case on the evidence, should be re
in Its duties In the trial of the caso
" I" "'""K "' undetermined What
uiiriwv rta tr lm n (mnecrllit tt tho
purports to lm a transcript of tho
stenographer's notes of tho procted
lngs Bhows only onn ronvlrtlon, which
rrforn tn tlip nffltlnvlt for the facts. II
by another Judge who wns with theUbel under our statutes, and this caso
trial Judgo on tho bench, also the tes- were beforo us on appeal, or, If tho
tlmony of certain witnesses, which J stntuto required the court In adjudging
shows that tho Jurors In the pending. a contempt to explicitly set forth nil
cafe saw tho alleged contemptuous pub
llcatlon in the hall and room adjoin
ing tho court room. If not In tho court
room Itself but does nut show what
the petitioner had to do with Its cir
culation In or near the court room n
distinguished from the city nt large,
nor does It show whether the court was
In session nt the time Whether the
presiding Judgo himself saw tho papei
cliiulated In tho court room during
ithc tr,m' Je8 not appear except by the
rtiltal In tho mittimus Die transcript
does not Indlcnte-tlint It contains all
the evidence, though there Is nothing
to show that it iloes not nor Is tho
usual stenographer's ecrtillcato attach
ed to it. though I' Is signed bv the
stenographer nor was it made n part
.of tho rciord In this court, nor does It
Purport to havo been tiled or to boa
'" """B "a:u """-" ,u '"''"""
that tho transcript was complete and
ino puiiiie nun jury ir)ing iiiu cause,
and that by reason of sild published
matter and Intending to publish nn
imndverslons on tho evidence) or pro
ceedings tn a pending trial tending to
itrliiilln tli,, nitliln r, nortlnf- din
.,, ,, ... rn.tI, ,i i,.ir,ici n,n
nor wa8 nny attcMiifit mndo to show'
Not Purged of Contempt.
1 ho contention that the petitioner
, r h e Dr.
' ti, nnstrs
Alden Electric "Belt"
i ties of the esnenslve belts now sold by
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,,. )nJ from the unJersKncJ onyi no
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Hriiclco Sent free to Hawaii for CS.00
thcrelij purged himself of the contempt
cannot avail In this collateial proceed
Ii.R, tonslderlng that the lower court
found ngalnst him and considering all
i.io circumstances under which that
finding wni made assuming that In our
opinion the finding was erroneous Wo
must In these proceedings regard the.
publication ns relating to tlio pending
Thus It Is not clear whether the court
not. and It would seem to be Immitcr-
lal whither It was In the courtroom
or In the adjoining hall or loom, If the
other nocoss-iry conditions we.ro prcs
out It Is not clear whether tho court
was In session or not Perhaps that
also would be Immaterial. If It was
during a miss incrol) or temporary
adjournment from one da to the next
and If the other essential features were
versed Is also, to saj tho hast, a like
question upon which no argument has
been presented on behalf of the peti
tioner, although that decision Is most
strenuously urged contra.
If, as Is the caso In some other JurU-
Is uo io iiiu enoej m suiuv irmv.1 Jilt (n
dictions contenint rnEra iern ntmi.il
Intermediate neccisar) findings upon
which the final Judgment Is based, the
result might perhaps bo different. Hut
In the absence of sue h findings or of an
nfllriiiatlvo Bhowlng of want of Jurisdic
tion cither b) tho record or b) matter
nutsido of the record tho Judgment
tnnuot bo set aside In n collateral pro
ceeding Three Judges Regular.
Tho fact that all three Judgis of thi
Circuit Court sat at tho hearing of the
contempt case dues not make the pro
ceedings void Whcthci they might
pioperl) all sit ns n court. It is un
ncicssary to sa) Tor although dur
ing tho cnrllc'i Btages of the htirliu
the) seem to havo regarded themselves
r iiij m-i'm in imtu iVK'ii well iiii'iunt 1, ua
l toKetlcr aR coimtltntliiK the court, )ot
,.i .. ..... .... ,..., .,.. ....
MIU l.lll tll.ll IIIU dllUKtn Ullltr IliUU
tho prosl.llng Judge took was unlniport-
ant and was Joined In b) the presiding
,,,,, nll, )Cforo (hp ,,,, uf th(, ca8(,
ho ow WJg 11)IurPnty tnkcn tllal lilit
two foimer weie there In nil advisory
capacity on!), and the presiding Judgii
alono Dually pronounced Judgmint In
form as If ho alono constituted tho
'1 ho caso ns a whole presents many
fertile) themes for comment, but It W
uuncccssar) to discuss them
1 ho petitioner Is remnnded to tho
custody of tho High Sheriff.
Smith & Lewis and Andrews, I'eters
&. Andrado, for tho petitioner.
(icnrge A Davis, eontin.
JAPANESE WARSHIP ASHORE.
Yokohama, JIa) IC, Investigation
into tho daniago sustained by the Ja
panese vvniship Musashl nnv l)lug on
a reef off Nemuro, Iloiik.ild') h is 1U
elosod tho fact that theio are threo
holes In the hull each treo feet square
und also ono two feet square Her
holm Is four,! to have been lost tit tho
tlmo ot tho accident. The most severe
damage sho received Is tn the Hern
Tho work of repairs will tiko about
CELEBRATION IN KOREA.
Yokohama, May 10 The 40th a-ces-slon
anniveisai' of the Kmpeior of
Korea (August 10) will bo celebrated
with duo honor nnd pomp by tho ex
penditure, It Is said, of about ,400 000
5011. Tho Korean Government will Is
suo a commemoration postag) stamp,
as on the occasion of tho bllver wed
ding Jubilee of their Majesties the
HniDeror und Hmpress of Japan.
BOUND FOR CORONATION.
Yokohama, May 22 Major fjeneru
rukushima who leaves Yokohami by
tho Hmprcss of Japan tonionow, ai al
ready reported, Is expected lo reach
Uugland on Juno 19
Thomas 13 Watson will deliver an
addiess In Atlantn on ' 1 ho South" on
the evening of June 10 I his will bo
the flibi appeiiaiiio of Mi Watson
hifoie the public since his campaign
a a 1'opullst tin the Vice Presidency
In the fall of ls'Jt,
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