Evening capital news., January 02, 1913, Page 2, Image 2

About Evening capital news. (Boise, Idaho) 1901-1927

Image provided by: Idaho State Historical Society

                
PUBLICATION OF CRU
or THE COURT DECISION
HELD TO BE IN CONTEMPT
(Continued from First Pagre.)
Isb summarily for contempt is essen
tial to its very existence, and that right
exists without the interposition of a
jury.
"11. The inherent power of the
court to punish for contempt was not
derived from the legislature, and such
power does not depend upon the legis
lative will.
"12. The legislature has not the au.
thority to restrict the inherent power
of the court to punish for contempts.
"13. 'Due process of law' does not re
quire a jury in contempt proceedings,
and there is no necessity for calling
upon a jury to assist the court in the
exercise of that power.
"14 The legislature may prescribe
any reasonable procedure to be fol
lowed in contempt prosecutions, but it
has failed to provide any procedure, and
under the provisions of Section 3925,
Revised Codes, when the procedure is_
not provided by the legislature, any
suitable process or mode of proceeding
may be adopted which may appear
most conformable to the spirit of the
Code.
"15. Under the provisions of Section
5168, Revised Codes, the judgments
and orders of the court, or judges, in
cases or contempt are made final and
conclusive.
"16. Where certain acts of contempt
are
made
a c
rime
under our statute,
the
making of
such
acts punishable as
«•rimes do
es n
*t affect any power con
ten
ed on
Ute
court
to impose or in
f licit
puni
slime
nt for
contempt. (Sec
tion
6305,
Rev
sod C
ies.)
"1
7. St
etion 6521
, Revised Codes,
pro
Ides
that
certain contempts are
mis
iemea
nors,
an*l
Section 72. ? 1 pro
vide
s that
.1 ct
imlna
act is no - the less
pun
shabl
as
i erim
e because it is also
dec!
ired
u b
pun
«liable as. a con
tern
'd J. Tlie inherent power of t lie
court to punish for contempt cannot
he interfered with or abridged by the
legislature, s<* far us courts of record
are concerned.
' 19. The freest criticism of all de
cisions *»f the court is allowed and in
vited, but criticism ceases and contempt
begins when malicious slander, vinifi
cation and datamation brings the courts
and tiro administration of the law into
dishonor and disrepute among the peo
ple.
20. Article 1, Section 9. of the state
constitution, provides that "Every per
son may freely speak, write and publish
on all subjects, being responsible for
the abuse of thut liberty. While certain
liberty is there guaranteed, in the last
clause of said secton the responsibility
for the abuse of that liberty is fixed.
"21. Said section is not and cannot
be made r refuge for malicious slander
ers and liholers.
"22. Held, that the evidence is suf
ficient to show that the defendants are
guilty of wilful contempt of this court.'
Opinion Rendered.
The opinion of a majority of the
court rendrai by Justice Sullivan is
as follows with the heretofore pub
lished matter including the complaint,
answer, demurrer and evidence ex
tracted ;
"This a
contempt.
tion involv
his official <
court on the
3912, v
Sheridan, <\ » ».
sen with pubii
Capital News
and malieioush
position <*f this
rging the def
mis
proceedings for
information by
f the state, in
as filed in this
y of December,
end an ts, R. S
and A. K. Cru
u tin* Evening
rtides, wilfully
presenting the
I a certain case
ourt i
then pc tiding before it, entitled state ex
rel. Spofford \s. Gifford, secretary <>f
state, .... Pac......and - barging that
said articles wilfully and maliciously
misrepresented the court, and that
said articles were unwarranted, con
temptible, defamatory and a contum
acious attack upon this supreme court
and the judges thereof."
Cite Roosevelt Appeal.
The opinion here sets forth in full
tho complaint filed by the attorney
general <>n behalf of the court citing
the defendants for trial, together with
the editorials and news Items pub
lished in the Capital News and the fa
mous telegraphic appeal to the people
of Idaho issued by Theodore Roosevelt
recent presidential candidate during I
the campaign and criticizing
opinion of the court striking the Ronse
Ronsevelt electors from the ballot.
After this review the opinion con
tinues:
"In limine, If the judges of this
court, in the discharge of their offi
cial duties, could permit themselves to
ho influenced by personal considera
tions, they certainly would deplore the
occurrence of this case. Should the
judges be reduced to the alternative of I
either submitting tamely to contumely ;
and insult, of resenting it by force,
resorting to the doubtful remedy of an
at ' a " „ If s ' K . h , a 3,atR of j
things exist, d. It would rest in tho
discretion of every party In court to
forte *tke judge either to shrink from]Is
J
a
duty or incur the degradation
his authority, which must unavoidably j
result from the adoption of either of j
the above alternatives. The judges
cannot but feel It a delicate task to
define and decide upon the extent of
their own powers, nor are they ignor
ant of the fact that the judgment
they are called upon to render in this
case may expose them, on the one
hand, to tlie imputation of cowardice,
timidity and irresolution, or, on the
other hand, to that of usurpation and
tyranny. The verity of these imputa
tions or suspicions would not be more
unworthy of the judges than the fact
of their shrinking from this question
because of the consequences in which
they themselves might he involved by
it. Every occasion of resort to th**ir
extraordinary powers should without
doubt be carefully avoided by them, put
when forced upon them, as in this case,
should be met with deliberation and
firmness.
"With such sentiments and convie
tions we have entered upon the con
sideration of tills case, conscious that
wo, as judges, have less p.t stake than
the people, and regardless of conse
quences which we could not have
averted without a dereliction of duty
and a degradation of the court.
Demurrer of Defendants.
"In presenting the demurrer, coun
sel for defendants, Sheridan and
Broxon, argued, first, that the in
formation alleged no contempt; second,
that the state should have been made
the plaintiff in this proceeding; third,
that the case concerning which said
publications were made, to-wit: The
state of Idaho ex rel. Spofford vs. W.
L. Gifford as secretary of state of the
state of Idaho, was not pending be
fore this court at the time said pub
lications were made: fourth, that the
court has no jurisdiction of this pro
ceeding.
"(1) Tiie first question then, is,
Does the information allege sufficient
facts to show contempt?
"It is alleged that said defendants,
Sheridan, Broxon and Cruzen, con
trolled tho policy of said Evening Cap-1
Ital News during the time said pub
llcatlons were made; that said articles
were intended to Influence this court
in its decision in said case, and that
said editorials and articles tended to!
bring said supreme court into dlsre
pute and lessen the respoct due its
authority and were unwarranted and
ntemptlble and Is a contumacious at
tack upon said court and the judges
thereof and are defamatory and were
calculated to impede the administra
tion of Justice; that said editorials and
other articles were wilful and malicious
misrepresentations of the attitude and
holding of said court concerning said
cause, and wilfully and maliciously
misrepresented the position the court
took with reference to said cause and
matter; and that said articles wore
intended to distort said decision and
were intended and calculated to im
pedo the administration of Justice and
to defame the court.
"In five of said articles the follow
ing language appears; 'It is impossi
ble to protest too strongly against
what is literally the infamy of this
decision'; 'reactionary conduct of a re
actionary court*; 'It is an attempt to
beat the cause by trickery and chican
ery.' And in another article the fol
lowing language is used: 'The decision
outrage and a flagrant instance,
fortunately rare, of the attempted con-jtect
IP'I of politics by tlie bench. It Is as
1 rnnnlcril as the action of the Taft
State committee at Aberdeen and the !
national committee at Chicago, and j
worse, because It was perpetrated by
a court.' in another: 'Ths more con- |
'
I
j
I
!
, j
vlnctng becomes the belief that the de
cision was purely and solely a political
and personal one.' And again: 'Our
state supreme court Is the accommo
dating one.' Again: 'A decision which
is defended and supported In Idaho by
no honest or honorable man todav. ,
And referring to said decision , t j,,
snld: 'The Republican state central
committee Is direetlv responsible fnrj
one of ,he greatest crimes ever com-l
luitted against the electoral franchise!
of tho people of tho United States.' In I
largo headlines is the following: 'Only
a part of the story is told. Agreement
on sénat orship is said to be far-reach
ing Recalls decision of the supreme
<■* *urt.* It is stated in that article
that the action of the court paved the
way for Haines for governor and
Stewart for justice of the supreme
court, and later the naming of Ailshie
for United States senator.
Refers to Senatorship.
"Said article purports to give a ru
mor to the
of Senator
was made
ffect that upon tho death |
Heyburn an agreement !
whereby Judge Ailshie!
was to receive sufficient support t >
elect: him United States senator and j
1 hat Judge Budge of the Fifth judicial
district court would be elevated from |
the district court bench to the su- j
preme bench to fill the vacancy caused
1)V tho election of Judge Ailshie, and
that In order to carry this plan to com
pletion, It would be necessary to pro
cure the election of Haines as gover
nor, and in order to satisfy tho par
ties who were in the combination, the
Roosevelt( electors were eliminated
from the ticket by n decision of th
supreme court upon a suit filed for that
purpose, and that In order to obtain
a unanimous decision of the supreme
court, It was necessary to take care
Dean ticket. The viciousness
absurdity of this statement are made
or|apparent at once when attention is I
nf Judge Stewart, who was a candidate
for re-election, and that if this com- j
bination could be carried out by the i
court on its part by rendering said de- )
cision, tin* southeastern, or Mormon j
counties, would support Judge Stew - |
1 Haines and the entire Repub-j
u " and !
IoallP«* to tho fact that Senator Hey- I
burn's (loath occurred unexpectedly ton
days after the decision of tho Spofrord
case was rendered. The direct charge!
there made against tlie court that!
it rendered said decision by reason of]
political trade or bargain and not
*>n the law and facts. What greater
wrong can be charged against a court
than that its decision was obtained by !
a political trade or bargain? Official,
corruption of the worst kind is there j
charged. I hat charge was made reck- j
lessly and deliberately and is a crim
inal contempt. In effect it charges the j
judges with the violation of their offi- i
clal oaths .and the court with 1
a
on th
ing ac
tuated by motives as base as any hu
man mind can conceive.
"The charges made in those publica
tions were of an extraordinary char
acter and if true are sufficient to war
rant tho impeachment of the members
of said court. They were intended to
degrade the court and bring It Into the
contempt of the people. They were
made for base political purposes and
charge tlie court with improper and
criminal personal and political motives.
They require no innuendoes to explain
them. Many of them were repeated
time and again and emphasized by
printing in capital letters, showing the
maliciousness of the publishers. They
were intended to raise a popular clamor
against the court. There was an at
tempt by wanton defamation and false
hood to insult ami intimidate the Judges
and degrudo the court and destroy its
power and influence and to inflame
und prejudice the people. The liberty
of tho press is often callmed as a cover
by character assassins to gratify ill
will and passion or to pander to the
passion and prejudice of others. The
liberty of tho press in its true sense
must be upheld, but flagrant abuses of
that liberty must bo punihsed.
"Judge Freeman in his note to Per
cival v. State, 50 Am. St. Rep. 574, di
vides contempts of courts by news
papers and similar publications into two
classes: First, those in which it Is
claimed that the object of the pubiiea
tion was to affect the decision of i
pending cause; seecond, those which
have for their apparent purpose the
bringing of courts, or the judges and
other officers constituting an essential
part thereof, into discredit. The ar
ticles complained of in this proceeding
really come under both of those heads,
as no doubt tho object and purpose of
some of those publications was to affect
the decision of a pending cause and
some of them were for tin* purpose of
bringing thu court into discredit. It
was a direct attack upon the court as
a court t and the judges, by prosecut
ing a civil action for libel or slander,
could not protect the honor of the court
and the court could not bring a pri
vate action to protect itself, and Its
only means of protecting its honor is
by a contempt proceeding.
, It was said in a late case, decided
! by the supremo court of Georgia, o
Oct. 12, 1912, In re Fite, 76 S. E. 39
| as follows:
" it is suggested that the proper
! remedy, where no case is pending and
j the court is scandalized, is prosecution
for criminal libel. Where a publica
tion which constitutes contempt con
tains libelous attacks, a prosecution for
libel can also be instituted; but the
character of a publication as a criminal
contempt is separate from its char
acter as a criminal libel. The one is
punished by tho court whose Judicial
integrity is assailed, the other may be
prosecuted before a jury for a viola
tion of tho criminal statue. It would
bo the grossest injustice to compel a
judge to leave tho bench and assume
j tie* role of prosecutor to protect the
; court from libelous and contemptuous
attack.-. Courts are not required to en
force respect through verdicts by juries,
but possess the power to punish, as for
criminal contempt, libelous publica
tions upon their proceedings, present
and past, upon the ground that such
publications tend to degrade the tri
bunals, destroy public confidence and
respect for their judgments, and ef
fectually obstruct the free and impar
tial cause of Justice . • . .
If this court does not defend and pro
itself from slanderous charges of
the character contained In the article,
the individual judges would deserve
! and should promptly receive the con
j tempt of all intelligent and honorable
men; for the court which is too weak to
| d 8m Mid
and enforce decent and re
spectful treatment cannot expect to
secure or retain the respect and con
fldence of the people.'
I "Proceedings In contempt were sus
! mined in ex parte Baird, 27 N. B. 99,
j based upon a publication which charged
, . , ,
11 with having granted, for pure
5 political motives, a «rit of prohi
*" U ' ,n l '> -"lay a proceeding to recount
VOU ' 3 1Hlled at a racent electlon '
" Tlle liberty of the press is not pro
I footed against the publication of de
liberate falsehood and m i sr e presen ta -
tion in regard to decisions of courts,
even though the publishers may think
that public or political Interests would
be served by such falsehood and mis
representation. Tho contention that
the public good requires tho publica
tion of the news of the day even though
such news he malicious falsehood and
slander is without any merit whatever.
The public press is not licensed to do
evil even under
| that good may result therefrom. The
! public press has no more license to
publish falsehood and defamation than
has a private individual. If there be a
j sentiment among the people demand
lug the publication of falsehood and
| calumny, and charging courts with
j selling their decisions, it must have
been formed very recently from the ut
misapprehension
foundation of
I trustworthlnes
teranee« and publications of yellow
journals and muck-raking magazines
and violent and depraved agitators
who seek to annul the constitution of
the United States and the constitutions
of the several state«, and who have
vilified and undertaken to degrade the
courts established by tlie people them
selves. But we do not believe there
is a public sentiment in this state that
demands that the public press make
false charges against the courts in
order that good may come therefrom
j or to promote some contemplated re
i form. It has been universally recog
) nized that injury would flow from un
j bridled tongues and pens, and by con
| ceding to the courts the power to pun
ish contempts against them, generally
! the people have recognized since the
our government Hie
of th«* judiciary in vin
I cheating by summary process thelx own
authority and dignity, and not a single
Instance of tho abuse of that Inherent
power has been called to our attention
"In In re Choesenmn, 49 N. J. L., 137.
60 Am. Rep. 596, the court said:
"'The importance of the "liberty of
the press" is \irged upon us. We do
not underestimate it; but after all, the
liberty of the press is only the liberty
which every man has to utter his sen- 1
timents, and can be enjoyed only
subjection to that precept both
n0 n laedas
that you may
n ~
ln
f law ;
™ "VT? *' fiZ uU ' re tuo ' llt ahenumithat
r.« io,.,!.*« .....- J -
use your own in
not injure another's.)
In a government where order is se
cured, not so much by force as bv the
respect which citizens entertain for
the law and those charged with its ad
ministration, nothing which tends to
preserve that respect from forfeiture,
on the one hand, and detraction, on the
other, can be hostile to the common
wealth.'
"Misrepresentation and falsehood are
not Justifiable criticism; they are not
criticism at all and the Defendants
Sheridan and Broxon in this proceed
ing have attempted in their answer to
justify their misrepresentation and
falsehood in regard to said decision of
this court on the ground of the great
public interests Involved. But as be
fore stated, great or any public Interest
does not demand the malicious defam
ation and vilification of our courts.
"The information states a cause of
Contempt.
"(2) It Is next contended by coun
sel that the state should have been
made the plaintiff in this proceeding.
That contention is without merit as
this is not a criminal action but a pro
ceeding to punish summarily for con
tempt and the statute does not require
that such proceedings be brought in
tho name of tho state. Certain con
tempts, however, are made crimes by
our statute and aro punishable by in
formation or indictment the same as
any other crime, and in such an action
the state must bo made a plaintiff.
But In a proceeding for contempt, it is
not necessary to name tho state as
plaintiff. In the punishment of crimes
on Information and indictment, the de
fendant is entitled to a jury; but not so
in contempt proceedings.
"It was held in In re Debs, 158 U. S.
594, 39 L. Ed., 1092, that one accused of
contempt is not entitled to a Jury trial;
and in In re Fellerman, 149 Fed. 244.
that a contempt proceeding is su l
generis, and that it may be considered
as having the same meaning os a mis
demeanor but it differs from it In this,
that it is not Indictable but punishable
summarily. No court has ever held that
n. party Is entitled to a trial by jury in
a proceeding for contempt. It must
therefore follow that the rules regard
ing the trial for crimes by information
or indictments are not applicable to
proceedings for contempt. We have
no statute requiring contempt proceed
ings to be brought in the name of the
state. In the Chadwick case, 109 Mich.
588, the contempt proceeding was en
titled "In re Chadwick." In a New
Mexico contempt proceeding against
Hughes et al, the case was entitled
"In ro Hughes et al." This proceeding
was begun in the name of and by the
attorney general of the state and was
properly brought In that name. There
is, therefore, nothing in the contention
that the state should have been named
as plaintiff.
"(3) Tho third point contended for
by counsel for the Defendants Sheridan
and Broxon was that the publications
referred to in the information were
made in regard to the decision of the
court in the case of the state of Idaho
on the relation of Spofford versus W.
L. Gifford, as secretary of the state of
Idaho, and that said case had been
finally determined and was not pending
before the court at the time said pub
lications were made.
"Tho original decision in that case
was handed down on the 8th of Oc
tober, 1912, and tho petition for rehear
ing was filed on the 15th of October,
hieb was considered by the court and
denied on the 23rd of October, 1912.
The cause was therefore pending until
the petition for rehearing was deter
mined, and the principal publications
and articles referred to in said infor
mation were published prior to that
date. Those published after and at
tached to said information simply show'
the viciousness of the former publica
tions.
-
"At the time the Spofford-Gifford
case was decided, the court concluded it
would give tlie usual time for present
ing a petition for rehearing. After the
opinion in said case was filed, there was
much newspaper talk about a petition
for a rehearing and on tlie 15th of Oc
tober, seven days after the rendition
of the decision, a petition for rehear
ing was filed signed by Harry Kessler,
H E. McElroy, J. J. Plowhead and
Ben F. Tweedy, as attorneys for the
defendant, which attorneys are mem
bers of the bar of this court ami in
good standing and their right to pre
sent said petition has not been ques
tioned. On said petition for rehearing,
the court proceeded in good faith to
re-examine the case and upon reaching
a conclusion, the rehearing was denied,
and there can be no question in this
case but that said case was pending
until tho 23rd day of October, 1912,
! when said petition for rehearing was
d.
1
nt was held in State v. Tugwell, 19
Wash. 238, that a contemptuous publi
cation made after the rendition of the
decision and after the time for re
hearing lias elapsed is nevertheless
made concerning a pending suit if time
«till remains for application for tho
modification of the opinion. However,
there are a number of well considered
cases which hold that the power of the
court to punish for contempt is not
limited to cases pending. But it is not
necessary for us to pass upon that
question in this case. In re Chadwick,
109 Mich. 588; State ex rel Attorney
General v. Hildreth (Vt.) 74 Atl. 71, 24
U. R. A. (N. S.) 551; State ex rel Crow
v. Shepherd, 177 Mo. 205; Burdett v.
Commonwealth, 103 Va. 838; 68 L. R.
A. 251; Commonwealth v. Danbridge, 2
Va. Cases, 408; State v. Merrill. 16
Ark. 384; In re Fite (Ga.), 76 S. E. 397.
Th** latter is a very carefully consid
ered case and is illuminative of sev
eral of the questions herein involved.
"(4) The fourth contention is that
this court has no jurisdiction of this
proceeding, counsel contending that
since the contempt charged is a crimi
nal constructive contempt and a crimi
nal offense, the proceedings in the
prosecution of criminal offenses must
be followed, as provided by statute in
criminal cases. It was held in In re
Fellerman, 149 Fed. 244, that a person
charged with contempt is not entitled
to a Jury trial and that the rules re
garding indictments and trial of crim
inal cases are not applicable to such
proceedings. It was held in State v.
Howell, 69 Atl. 1057, that a proceed
ing for contempt is not' a criminal
; prosecution, though of that nature, and
a court without criminal jurisdic
tion has Jurisdiction to punish for con
tempt, as such proceedings are for an
offense against the court as an organ
of public justice and not a proceeding
or action against a person for the vio
lation of the criminal law. No re
spectable authority has ever denied the
inherent power of a court of general
jurisdiction to punish summarily for
contempt.
"In ex i>arte James S. Robinson, 86
U. S. 513, 22 L. Ed. 205. the supreme
court of the United States held that
the power to punish for contempts is
inherent in all courts and that its ex
istence Is essential to the preservation
of order in judicial proceedings and to
of
l
tho administration of Justice and thatj
the moment that courts of the United
.States were called Into existence and
vested with jurisdiction over any sub
ject, they became possessed of this in
herent power. Ex parte Terry, 128 IT.
S. 289, 32 L. Ed. 405; In re Debs. 158
U. S. 565, 39 L. Ed. 1092.
"It was held in State v. Howell
(Conn.), 69 Atl. 1057, that the power
to punish contempts Is inherent in
courts of record to enable them to pre
serve their own dignity and duly ad
minister Justice. Tn re Woolley (Ky.)
11 Bush, 95; Cooper v. People, 13 Colo.
337; In ro Chadwick, 109 Mich. 589.
"Numerous cases are cited In the lat.
tor opinion holding that the power to
punish for contempts is inherent ln all
courts of record. People v. News
Times Pub. Co. (Colo.), 84 Pac. 912;
State v. Wood fin. 27 N. C. (5 Ired.)
199, 42 Am. Dec. 151; In State v. Mor
rill, 16 Ark. 384, the court held that the
power to punish for contempt was in
herent in courts of Justice as a neces
sary incident to the exercise of the
powers conferred upon them. In re
Perkins, 100 Fed. 950; State **x rel. At
torney General v. The Circuit Court,
97 Wls. 1.
"In re Woolley, 11 Bush. 95, the court
held that the inherent right in
courts to punish for contempt was not
derived from the legislature and that
such power could not be made to de
pend upon the will of the legislature.
In Hale v. The State (Ohio), 36 L. R.
A. 254, the court held that the legis
lature was without authority to abridge
tho power of a court created by the
constitution to punish contempts sum
marily. such power being inherent and
necessary to the exercise of Judicial
functions.
"The legislature has not the author
ity to restrict the inherent power of the
court to punish for contempt, for if it
has tho power to restirct such right,
where will the line be drawn? If it
could abridge the. right, it could so
minimize it os to make it ineffective
for any purpose.
"In matters of contempt a Jury Is not
required to try the matter under that
provision of the constitution providing
for 'due process of law.' Interstate
Commerce Com. v. Brimson, 154 U. S.
447, 38 L. Ed. 1047. Eilenbecker v. The
District Court, 134 U. S. 30, 83 L. Ed.
801. In tho latter case it was held that
the power to punish for contempt was
inherent In the courts without the nec
essity of calling upon a Jury to assist
the court in the exercise uf this power.
In In ro Fellerman, 149 Fed. 244, the
court held that a person charged with
contempt was not entitled to a jury
trial and that the rules regarding in
dictments were not applicable to such
proceedings.
"In regard to punishment of con
tempts by courts under *the statutes of
this state. Sec. 5155 provides that cer
tain acts or omissions ln respect to i
court of Justice, or proceedings there
in, are contempts of the authority of
the court, and then proceeds to define
12 different acts or omissions. Said
section does not declare that tho con
tempts therein mentioned are misde
meanors or other crimes.
"Under the foregoing provisions of
our statute, judgments and orders in
contempt proceedings are made final
and conclusive and certain contempts
may be punished as a misdemeanor
and also as a contempt. It Is also pro
vided that certain contempts are mis
demeanors and also that a criminal act
is not the less punishable as a crime
because it is punishable as a contempt.
The statute in no manner interferes or
could interfere with the Inherent power
of the court to punish for contempt.
"As appears by the authorities here
tofore cited, the Inherent power of tho
court to punish for contempt cannot
be interfered with or abridged by the
legislature, at least so fur ns courts of
record are concerned. While the leg
islature may prescribe any reasonable
proceedings to be followed ln contempt
prosecutions, it has failed to do so, and
under the provisions of our statute,
when proceedings are not provided by
the legislature, any suitable process or
mode of proceeding may bo adopted
which may appear most conformable to
the spirit of the code. (See section
3925, revised codes.)
"The reason for the strict rule in re
gard to contempt cases is obvious to
any earnest student of our republican
institutions. The language used ln the
editorials and articles attached to the
information has the effect, of destroy
ing, in a measure at least, public con
fidence in the highest Judicial tribunal
of the- Ptate, thus impairing respect for
the authority of the court. If any con
siderable portion of the people is led
to believe that the highest court of tho
state Is guilty of selling its opinions
and decisions, and that they cannot reiv
upon the courts to administer Justice,
the result may be mob violence with
all its detestable features.
"Any tribunal that cannot tolerate
criticism of its decisions is justly en
titled to contempt; but, on the other
hand, little respect is due a court that
will hesitate to check or discipline
those who vilify and maliciously mis
represent it with the object and pur
pose of degrading it and bringing it
into contempt. The court is charged oy
said articles with depriving the people
of the right to vote in violation of
law. Is It possible to stab the court
more fatally than charging that by its
decision it has In violation of law de
prived the people of the right t* » voto
I think not. No court objects to hav
ing its decisions honestly criticize
either as to the law or facts, but it is
not criticism to impute base rnoti
and dishonesty to the court in render
ing its decisions. Show by fair criti
cism that a decision is contran* to the
law or facts and no court would object
to such criticism. The freest criticism
of all decisions of the court Is allowed
and invited, but criticism ceases and
contempt begins when malicious slan
der, vilification and defamation bring
the courts and the administration of
tlie law into dishonor and disrepute
among the people.
"In In re Breen (Nev.), 93 Pac. 997,
the court correctly held that one may
criticise the opinion of the court, take
issu© with it in its conclusions of law
and question its conception of the
facts, so long as his criticisms are
made in good faith and In ordinarily
respectful language, and when not de
signed to wilfully or maliciously mis
represent the position of the court, or
tend to bring it into disrepute, or
lessen the respect due the authority to
which a court is entitled.
"Assailing the constitution as antl
quated, holding the laws in contempt
land vilifying the courts through the!
yellow journals of the country, have
encouraged criminals In their criminal
acts and the result has been an un
precedented wave of crime over our
country. More than a hundred crim
inal cases of dynamiting, the destruc
tion of vast amounts of property and
the murder of score« of innocent per
sons have been the result of those
criminal acts. And the criminals have
«c»rHTn. Kre ?u ? C0Ura *: m T t , fr0m the
scurrilous, villainous an-i criminal pub
lications
f such Journals. Courts have
been almost powerless In the matter
because of the corruption and intimida
tion practiced by such criminals and
Journals on the people and Juries. For
much of this criminal work the muck
raking and yellow Journals are largely
Responsible and tho result has been
that but very few of the criminals ha* e
been convicted. The tide, however,
seems to be turning. Two dynamiters
plead guilty and a Jury has recently
found 38 more guilty. If the public
press can do those things with im
punity, the average citizen or Juryman
cannot be expected to hold the courts
or tlie law in very high respect and
enforce or feel much inclination to en
force tlie law as Jurymen.
"If the time has arrived in this coun
try when the courts may be vilified,
abused, unjustly and without any
foundation in truth, and are deprived
of the right to punish for contempt, the*
plan adopted by tho founders of our
government to have a co-ordinate
branch of the government In tho ju
diciary had as well be abandoned anl
let every man be a law unto himself
and let anarchy and 'mob-ocracy
reign.
Demurrer Overruled.
"The demurrer to the complaint
must be overruled and it is so ordered.
"On the 20th of December, 1912, the
defendants Sheridan and Broxon filed
an answer."
After completely reviewing the evi
dence in the case the opinion con
tinues;
No Evidence.
"The foregoing is the substance of
the evidence introduced on the trial so
far as Cruzen was concerned. The at
torney general thereupon offered in
evidence the information and the ex
hibits attached thereto ln tlie case of
Broxon and Sheridan. No objection
being made thereto, the same was re
ceived and counsel for Broxon and
Sheridan declined to introduce any
evidence whatever on their behalf.
Thereafter the case was argued to the
court by A. A. Fraser, Esq., on behalf
of Cruzen, and the attorney general
on behalf of the plaintiff. Counsel for
Sheridan and Broxon declined to make
an argument in the case and tlie case
was taken under advisement by the
court.
"The maliciousness of the defendants
as shown by the fact that they did not
publish the decision in the Spofford
Gifford case so that the readers of the
Evening Capital News might determine
for themselves tlie conclusions reached
by the court and the reasons given for
those conclusions, but they malicious
ly and wilfully misrepresented said
decision in order to deceive its read
ers and vilify the court.
"Sheridan and Broxon by their fail
ure to answer after the demurrer to
their answer had been sustained, ad
mitted the allegations of the infor
mation so far as they were concerned
and the court holds that said editorials
and articles so published are con
temptuous and defamatory of the court
and that said defendants are guilty of
contempt of this court.
"As to the defendant, Cruzen. he ad
mits that he was very friendly with
Sheridan and Broxon and the Capital
News, had frequent interviews with
them, visited the office of the Capital
News frequently; that Sheridan and <
Rroxon came to his office at his call j
over the telephone; that they discussed j
the political policy of the paper; that
the policy pursued was mostly in
cord with the views of Cruzen; that j
candidates for political offices who |
sought favor with that paper consult-!
ed with Cruzen and that tho political j
policy pursued by the paper was sub-1
stantially in accord with Cruzen'sjmit
views; that he foretold what the pol-]
icy of the paper would be in certain j
matters before It adopted such policy; j
that he told numerous persons, many of !
them the leading citizens of the state, j
that he controlled the political policy of j
that paper, and those statements are
rroborated by the policy pursued by
tlie paper, regardless of tho testimony
of Broxon who was merely hired by
the month to write for the paper, that
ho controlled its political policy.
Broxon testified that he controlled and
dictated the policy of the Capital
News and was responsible for publish
ing the editorial? and other articles
on which this contempt proceeding is
based. However, all of the testimony
when taken together shows that that
conclusion of the witness is not cor
rect. Ho testified to a conclusion or
ultimate fact. A conclusion or ulti
mate fact is established by probative
facts, and the probative facts as re
vealed by all of the testimony do not
establish tho truth of that ultimate
fact or conclusion testified to by him.
Tho probative facts show that he did
not alone control and dictate the pol-i
of die Capital News nor that
as the only ono responsible for tho
editorials and articles on which this
contempt proceeding Is based." The e\
dence shows that Rroxon did not ha
that exclusive honor but that Sheridan
and Cruzen shared it with hltn. Brox
on's testimony on that point is only his
conclusion formed In his own mind,
but the probative facts do not sus
tain him in that conclusion. One of the
questions ln this case is who is re
sponsible for said publications and
that question must ho determined by
tills court from all of the evidence and
not from the testimony of a single
witness who swears to the bald con
clusion that he ts or is not respon
sible. The same may he said of Cru
zens testimony wherein he stated that
ho had no control or Influence ln the
publication of said articles. However,
the testimony shows that Sheridan was
the owner and manager of said paper
and Broxon testified that he and Sheri
dan had no disagreements over the pol
icies the paper shotdd pursue; that he
worked in absolute harmony with Mr.
Sheridan; that he had consulted Sheri
dan and Cruzen ln the last campaign;
that the position the Capital News
would take on public questions was
sometimes discussed with Sheridan and
sometimes not- that a case had never
arisen where they had disagreed as to
the policy of the paper, and simply he.
'cussed politics and
e
cause there were no disagreement« be
tween Sheridan and Broxon, Broxon
evidently concluded, even though be
were only an employe, that he con
trolled tho political policy of that
newspaper. Tlie evidence shows that
Cruzen and Sheridan were quite fre
quently together either at Cruzen's of
or nt Sheridan's office, and dls
that Broxon also
discussed politics with Cruzen, and
while Broxon testified positively on
Ills direct examination that he did
not show certain articles to Cruzen be
fore they were published, on cross
examination he admits that he may
have done so but had no recollection
of it; that be worked in absolute har
mony with Sheridan, and the evident ,
shows that Sheridan and Cruzen were
in harmony on the general polit 1* d
policies of the paper and consulted
very frequently together. Broxon
mit tod that hi* talked with Cruzen I
regard to some of said articles after
they were published but did not recol
lect whether or not be talked with him
about them before they were published
He also testified that during the cam
paign lie went to Cruzen'« office and
that be did discuss some of those pub
lications with Cruzen; that Cruzen
doubted the advisability of publishing
some of said articles and of what
Broxon had said in them. Why should
Cruzen doubt the advisability of any
thing Broxon said ln those articles if
he had no right to advise in tho mat
ter? He also testified that he and
Cruzen were very much interested in
the campaign and that Cruzen was
frequently in Broxon's office during tho
campaign. Cruzen, as a witness f.»r
himself, admitted that he had t• C.i
many people that he controlled the po
litical policy of the Evening Capital
News. He apparently made these state
ments in regard to that matter when
there was no Inducement for him t
misrepresent. However, he testlfie
that he did it ns a "political stunt"
whatever that may me But all of the
facts and circumstances surrounding
the matter show that he was very much
interested in the campaign and was
very' much interested in the campaign
and was very frequently in consul
tation with Sheridan and Broxon arid
that tlie Capital News advocated the
political policy which was in accord
with Crtizen's views, * so far as said
publications were concerned. He ad
mits that he told many of the leading
citizens of Boise and politicians that
he controlled the Capital News, and
office-seekers sought him instead of
Sheridan and Broxon to procure the
favors of that paper in their political
aspirations. After informing so many
people that he had control of the Cap
ital News, it seems that he was willing
to have that distinction until he was
confronted by a contempt proceeding,
and then ho went on the stand and tes
< guilty of criminal libel upon this evi
j device, in a proper action, we do not
j think any court would reverse tho ver
diet on the ground of insuffiency of the
ac-(evidence. Circumstantial evidence is
j often more convincing than direct evi
| dence, and it is well recognized that
the tongue of the politician often
j speaks falsehood. The testimony of a
man who will go on the stand and ad
that he is a common liar in mat
tens where he had no great indu, e
j nient to lie, ought not to be given
j much credence in regard to the same
! matters when the jail or a fine, nr
j both, for contempt nf court is staring
j him in the face as an actuating mo
tive. From all of the evidence, we
have no doubt whatever that Cruzen
and then ho went on the stand and tes
tified that he had been lying about his
control of sai dpaper, and testified to
the effect that he had no influence
or control over it. Taking Broxon
entire testimony, it does not com
borate Cruzen in his sworn statement
that he exercised no influence In con
trolling the political policy of said
newspaper, but does corroborate tho
statement made by Cruzen to many
people to the effect that he did exercise
some influence in the publication <>f
said articles. Regardless of the posi
tive sworn statement of Cruzen, the
facts, circumstances and probabilities
of the case are all against him, and
clearly support the view that he was
telling the truth when he told so many
people that he was controlling the po
litical policies of that paper during the
last campaign, anrl r not teling the truth
v hen mi the witness stand. If a Jury
ho til'd find the defendant Cruzen
did influence the manager and editor
of the Capital News in the publication
of said articles and is guilty of wilful
contempt of this court. The evidence
in this case clearly shows that the con
temptuous articles and editorials al
leged in the information and proven
in this case, and the continuous publi
cation of such articles are sufficient
to justify this court in imposing a se
vere sentence; but in view of the fact
that this is the first case of the kind
that has ever been brought before this
court, we are inclined to Impose a light
sentence, believing it will have the
same effect on the defendants as well
as on tho press generally, as would a
more severe sentence.
Judgment in the Case.
'It is therefor ordered and adjudged
that the sentence and judgment of this
court against said defendants be as fol
lows;
"That the defendant, R. S. Sheridan,
he confined in tlie county Jail of Ada
county for a period of ten days, com
mencing on tlie second day of January,
1913, and that lie pay a fine of $500,
and If said fine he not paid within 30
days that execution be Issued for th#
collection nf the same.
"That the defendant, C. O. Broxon, b#
confined In the county jail of Ada
county for a term of ten days, coni,
menclng- on the second day of January,
1913, and that he pay a fine of $500,
and If said fine be not paid within 30
days, that execution be Issued for tht
collection of the. same.
"That the defendant, A. R. Cruzen, b#
confined in the county Jail of Ada
county for a period of ten days, com
mencing on tlie second day of January,
1913, and that he pay a fine of $50*
and the costs of this proceeding, In
eluding; clerk's fees, witness fees, sten
ographer's fees and the expenses of th*
bailiff in the service of process and pa
pers in this proceeding;, and If said fin#
and costs be not paid within 30 day
that execution be Issued for the col
lection of tho same.
Stewart, C. J.. concurs; Ailshie. J,
concurs in part and dissents In part."