State Of West Va. v. FREW

Decision Date07 July 1884
PartiesSTATE OF WEST VIRGINIA v. FREW & HART.
CourtWest Virginia Supreme Court

State of West Virginia v. Frew & Hart.

1. Where a contempt is not committed in open court, the usual course is to issue a rule to show cause why an attachment should not issue, though the attachment sometimes issues in the first instance, (p. 438, 471.)

2. Such rule is usually based in cases of constructive contempt on an affidavit or other sworn statement of the facts constituting the alleged contempt, but this is not always essential. The Court may act on its own information or on the unsworn statement of a member of the bar in cases where the facts are clear and unmistakable, such as contemptuous publications in a newspaper, (p. 471.)

3. Where the rule has issued on an unsworn statement of counsel, though it may be defective in form or substance, yet if the defendant appears and answers admitting facts sufficient to constitute the offence alleged against him, the Court will not regard objections to the proceedings for the want of an affidavit or sworn statement or on account of defects in the rule, though the objection is made in the answer, (p. 472.)

4. The Supreme Court of Appeals of this State has the constitutional power to punish, as for contempt, the publication of a libel on the Court or the judges thereof acting in their judicial capacity, made during the term of the Court, with reference to a case then pending and undecided. (p. 457.)

5. The power to summarily punish contempts is inherent in all constitutional courts, springing into existence upon their creation as a necessary incident to the exercise of the powers conferred upon them, and applies as well to constructive as to direct contempts. (p. 457.)

6. The act of the Virginia Legislature of 1831 in reference to punishment for contempts of courts, which has been handed down through successive Codes and is now found in chapter 147 of the Code of this State, was not intended to apply and does not apply to the Supreme Court of Appeals. (p. 465.)

7. In this State the power of the Supreme Court of Appeals to punish summarily both direct and constructive contempts is the same as exists at common law. (p. 465.)

8. A publication in a newspaper in the city, where the Supreme Court of Appeals is sitting, with reference to a case then pending and undetermined, charging three of the four judges of the Court with attending a political caucus more than a year before, and in the caucus advising the action, oat of which the case arose, and promising the caucus to hold its action legal and proper, and charging the Court with agreeing to decide the case before an approaching political convention for political purposes is a contempt of said Court, which it may summarily punish, (p. 466.)

Johnson, President, furnishes the following statement of the case:

On the 24th day of June, 1884, Henry M. Russell, a member of the bar of this Court, presented the following communication:

" To the Honorable Judges of the Supreme Court of Appeals of West Virginia.

"As is well known to the Court, there was pending here on the 18th day of June, 1884, and there is now pending and undetermined, a proceeding by mandamus, at the relation of Joseph S. Miller, Auditor, against T. H. Buchanan, assessor of Brooke county. This proceeding involves the constitutionality of the exemption act, contained in section 43 of chapter 12 of Acts of 1881 and the propriety of what is well known throughout the State as the 'supplemental assessment order.'

"I have the honor to be a member of the bar of this Court and to be the counsel for the relator in the cause referred to.

"On the 18th day of June, the Wheeling Intelligencer a newspaper of general circulation published in the city of Wheeling, contained an editorial article, referring expressly to the questions I have mentioned as involved in said cause and referring by implication to that cause itself. This article stated that three out of the four judges of your honorable Court had told a Democratic caucus, more than a year ago, in effect that the Court would sustain the 'supplemental assessment order' and hold the exemption statute unconstitutional. The article then says that it was not intended that 'the purpose of the Court' should be made public, and intimates that the publication of its purpose 'may induce the Court to change its mind.' I beg leave to submit with this communication, a copy of the newspaper containing the article referred to.

"This article has every appearance of an attempt to affect the decision of the Court in the case of Miller v. Buchanan, and to intimidate it into deciding against the relator. While I do not believe that any effect will be produced upon the Court which will affect the case, still I deem it my duty as an officer of the Court and as counsel for the relator, not to permit so palpable an assault upon the purity and independence of the administration of justice to pass unnoticed.

"The firm of Frew, Campbell & Hart, composed of John Frew, A. W. Campbell and C. B. Hart, are, as I am informed, the publishers of the Wheeling Intelligencer.

"Should the members of this Court so far forget their duty and dignity as to express in advance, for political or other purposes, their opinions upon cases which may come before them, as judges, no one would be quicker than I to condemn such a practice. If it could be shown me that any of your honors had been guilty of what the Intelligencer lays to your charge, I would willingly join the editors of that paper in bringing the matter before the proper tribunal at the proper time. But whether these matters are true or false, the case of Miller v. Buchanan is now pending and you alone must decide it. While it is before you, your conduct with respect to the case itself and the questions in it is not the proper subject, in my opinion, of public criticism.

Disclaiming any feeling of resentment or animosity against the publishers of the Intelligencer, and acting solely from a desire to do my professional duty, I now lay the matter be- fore the Court, and shall not feel that I am called upon either to suggest to the Court what it shall do in the matter, nor to take part in the prosecution of any proceedings which may be instituted, should the Court see fit to act. "With great respect,

"Henry M. Russell.

"June 23, 1884."

Thereupon the Court issued the following rule against the defendants, returnable on Saturday, June 28:

"Henry M. Russell, esq., a member of the bar of this Court, this day presented a written communication addressed to the Court referring to the fact that on the 18th day of the present month of June the case of the State of West Virginia ex ret. Joseph S. Miller, Auditor, v. T. H. Buchanan, assessor of Brooke county, upon a petition for mandamus, was in this Court pending and undetermined; that said case involved the constitutionality of the exemption act contained in section 43, chapter 12 of the Acts of 1881, and the propriety of what is well known throughout the State as the 'supplemental assessment order;' that he was the counsel for the relator in said case; and that on the said 18th day of June, the Wheeling Intelligencer, a newspaper of general circulation published in the city of Wheeling, contained an editorial article referring to the question involved in said case, and by implication to the case itself. With this communication is presented a copy of said newspaper containing said article. The Court is informed that Frew, Campbell & Hart, consisting of John Frew, A. W. Campbell and C. B. Hart, are the proprietors and publishers of said newspaper, and that said C. B. Hart is the chief editor thereof. The said editorial article is as follows:

"'The State campaign seems to be shaping itself. It leaks out that the Supreme Court of Appeals is to be brought to the rescue in a decision affirming the constitutionality of the exemption act, and declaring the supplemental assessment order to be lawful and right. This is in effect, what was promised by the three Supreme Court judges to the Democratic caucus before the order was issued.

" 'It might be thought strange that anybody could know what the decision of the Supreme Court is to be on any question. But it seemed equally strange that three out of four judges of the Supreme Court told the Democratic caucus more than a year ago to go ahead and rely on the hacking of the Court.

" 'The present understanding is that the decision is to be rendered before the meeting of the Democratic State Convention in order to simplify the situation. It is also understood that this move is not intended to advance the interests of Hon. E. Boyd Faulkner.

" 'Of course it was not intended that the purpose of the Court should be made public, and publicity may induce the Court to change its mind, just to show that somebody has been taking liberties with the text and misrepresenting the Court. We shall see what we shall see.'

"It is therefore considered and ordered by the Court that a rule be and is hereby awarded against the said John Frew, A. W. Campbell and C. B. Hart, proprietors and publishers of said Wheeling Intelligencer, and said C. 13. Hart, chief editor thereof, commanding them and each of them to appear before this Court on Saturday morning, June 28, at ten o'clock, to show cause, if any or either of them can, why they and each of them shall not be attached for their contempt of this Court in publishing the aforesaid article.

" It is further ordered that service of a copy of this order on the said parties above named, shall be considered as service of the said rule."

On the said 28th day of June the defendants appeared and severally filed their answers to said rule.

The return of the rule shows that A. W. Campbell was not at home, and had been absent from the State for months. The rule was discharged therefore as to him.

John Frew filed his answer as follows:

"In the Supreme Court oe Appeals...

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