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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."