In re MacKnight

• Decision Date: 10 August 1891
• Citation: 27 P. 336,11 Mont. 126
• Parties: In re MACKNIGHT.
• Court: Montana Supreme Court

27 P. 336

11 Mont. 126

In re MACKNIGHT.

Supreme Court of Montana

August 10, 1891

Petition for habeas corpus by James A. McKnight.

Elbert D. Weed and John M. McDonald, for petitioner.

Thompson Campbell, for the State.

HARWOOD J.

By return made to the writ of habeas corpus, and the writ of certiorari issued in aid thereof, it appears that the prisoner was adjudged, by the district court of the second judicial district, guilty of having committed a contempt of that court, and was therefor committed to jail. The facts and proceedings whereby the judgment and order of commitment were made appear by the return as follows: A certain newspaper, known as the "Helena Daily Journal," printed and published at the city of Helena and of general circulation, contained in its issue of July 7 1891, among other items, the following: "Why There's Prejudice. An old Montanian, who is very familiar with all the ins and outs of the Davis Will Case, was discussing yesterday the subject of the change of venue, asked in this celebrated case, when he said: 'Prejudice? Why, of course, there's prejudice. The money involved in this case has turned the head of every man, woman, and child in Silver Bow county. Republicans and Democrats are sworn allies and friends in all that pertains to keeping the estate in the hands of the Butte parties, and they stood together for the re-election of Judge McHatton solely because they knew that he could never be won over to any other view of the will than the Butte view. This was why no Republican nomination was made, and why McHatton was so readily adopted as the candidate and elected by so pleasing a vote. I tell you there is money enough in this business to corrupt every corruptible man in the state, and it has caused a deadly bias in the minds of some men who could not be bought with money at all. There are not more than one or two cases to-day before the courts of this country in which the stake involved is so great. Nothing like a fair trial can ever be had in Silver Bow county, as neither a judge nor a jury could be obtained there that would render a decision in accordance with the evidence. Therefore, unless a change of venue is granted, the jig is up for the contestants of the will.' This gentleman is a Republican who travels a good deal about the state, but a Democrat beside him, who has been a good deal in Silver Bow county, said he had to admit the truth of the stricture."

On the 9th day of July, 1891, Hon. JOHN J. McHATTON, judge of department 1 of said court, made and filed in his court an affidavit setting forth that an action or proceeding for the probate of an alleged will of Andrew J. Davis, deceased, was pending in said court; that such case or proceeding was generally known as the "Davis Will Case;" that said MacKnight and other persons named in the affidavit were the editors and publishers of said newspaper, and published the matter recited; and that "said publication has come under the observation of the judge of said court, and the charges therein made are false and contemptuous." Upon the filing of the affidavit, said court issued an attachment for the persons charged with commission of contempt by said publication. In the proceedings which were afterwards had before said court, in the matter of this alleged contempt the petitioner, MacKnight, appeared to show cause why he should not be punished for contempt as charged; and answered admitting that he was the managing editor of said newspaper at the time of said publication; admitted that he alone wrote and caused to be published in said newspaper the matter recited; but denied that the same was a contemptuous act towards said court, or the judge thereof, or was so intended by the author and publisher thereof. Then followed an inquiry before said court, wherein said MacKnight, under oath, explained to the court where and under what circumstances he heard the comments, which were recited in the publication. He stated, in effect, that at the time he wrote and published said comments a proceeding for an order for a change of the place of trial of the contest of said alleged will, in said Davis Will Case, was being heard upon appeal by the supreme court of this state; that he had heard much comment by various persons, at different hotels, upon the streets, and about the court-house in the city of Helena, in relation to said application for a change of venue, some of which expressions, uttered by several persons, were put together, and made up the matter published; that said matter was published in a column which purported by its heading to contain street gossip and incidents of interest. At this point the inquiry was directed to the ascertainment of the names of the persons who had made the comments mentioned. In answer to questions calling for the names of such persons, the witness said: "There were individuals that made some of the comments in the article whose names I cannot possibly recall, but it was in private conversation." In only one case could the witness recall the person who stated what constituted a portion of the comments published, namely, that which related to the political situation in Silver Bow county at the time of the last election. The witness said: "As a matter of fact, the gentleman who made those remarks did not wish them printed. He had no feeling or interest in the 'Davis Will Case.' I gave him my word that I would not in any way disclose his name, and wrote the paragraph several days after the conversation." The name of the person in question was demanded by the court under peril of commitment for contempt if the witness refused to disclose it; but the witness declined to state the name of such individual without his permission. A continuance was then had to give the witness an opportunity to consult said person to find whether it would be agreeable to have his name mentioned to the court in this proceeding. On resuming the hearing, the witness stated that the individual in question, whose comments had been thus taken by the witness and published, would not consent to have his name given to the court, and the witness declined to disclose it; whereupon the court adjudged the witness guilty of contempt for refusing to disclose the name of the person demanded, and refused to pass upon the original charge of contempt in said proceeding, and refused to hear counsel for prisoner upon the question as to whether in law any contempt had been committed, and ordered the prisoner committed to jail. It is this imprisonment which the prisoner insists is illegal.

Upon the hearing before this court, counsel who appeared in the court below, as amicus curiæ in the proceedings also appeared here, and raised the point that this court has no jurisdiction to bring up for review by writ of certiorari the proceedings of the lower court in the matter in question. In support of this position, he cites that clause of section 3, art. 8, of the constitution, which provides that the supreme court "shall have power, in its discretion, to issue and to hear and determine writs of habeas corpus, mandamus, quo warranto, certiorari, prohibition, and injunction, and such other original and remedial writs as may be necessary or proper to complete exercise of its appellate jurisdiction." Counsel contends that the writ of certiorari, and others named in said clause can only be issued by this court when the same are necessary or proper in the exercise of its appellate jurisdiction, and therefore the issuance of the writ of certiorari in this case was irregular, because it was not in aid of appellate jurisdiction of this court. His position is that the latter words of said clause relate to the writs specifically mentioned, and restrict this court to the use of said writs, in the exercise of its appellate jurisdiction only. The case at bar presents a striking illustration of the error involved in such a construction of said clause of the constitution as is contended for by counsel. It is clear that this court is given power to issue, hear, and determine all of the writs mentioned, among others the writ of habeas corpus. That is conceded by all, but the contention is that this court can issue, hear, and determine said writs only in the exercise of its appellate jurisdiction. Now, how would the writ of habeas corpus be ordinarily used by the supreme court in the exercise of its appellate jurisdiction? So the writ of certiorari is among the writs which this court is expressly authorized to issue, hear, and determine. Yet that writ is peculiarly inapplicable to use in aid of appellate jurisdiction; and, indeed, cannot be lawfully issued in cases where error may be reached by appeal. Code Civil Proc. § 555. Is it to be presumed that the framers of the constitution placed within the jurisdiction of this court these writs, the use and effect of which, in the actual administration of law, is so well defined, and some of which are in no way adapted to, or used in, the exercise of appellate jurisdiction, and...