In re Shannon

• Decision Date: 20 July 1891
• Citation: 11 Mont. 67
• Parties: In re SHANNON.
• Court: Montana Supreme Court

11 Mont. 67

In re SHANNON.

Supreme Court of Montana.

July 20, 1891.

James W. Shannon was summarily fined and imprisoned for contempt by the police magistrate, and made application for a writ of habeas corpus.

Daniel E. Waldron and Alex. C. Botkin, for petitioner.

HARWOOD, J.

It appears that the petitioner was proceeded against in the court of the police magistrate of the city of Butte, upon a charge of having committed contempt of said court, in that the petitioner, on the 28th of June, 1891, caused to be printed and published in the Daily Miner, a newspaper printed and published in said city, a certain article in terms as follows: “Card from J. W. Shannon. Butte, June 26. To the editor of the Miner: In this morning's Miner an article on the local page recites, animadverts, and moralizes upon a case in the district court which was appealed from a lower court, and in the determination of which the local government was put to cost of more than $200, to save defendant from paying the paltry fine of $5.00, when according to a jury of his peers, he had done no wrong. *** I grant you that this is a representative case, and illustrates a flagrant and frequent abuse, with the emphasis on ‘frequent.’ But it is to the remedy proposed that this deponent would demur. ‘Fix a limit to appeal cases.’ Never. The right of appeal should be neither limited nor abridged. The right of vindication is cheap, at any cost. Why not correct the necessity of such appeals? Why not modify our ordinances so that the court and prosecuting attorneys shall not be interested in their own convictions? Pay them fixed salaries, and free them from the imputation of running 'a cost shop,' and waxing fat at the expense of victims who get into their toils. They would not then find it necessary to reject the res gest, which would fix the blame where it belongs. There would then be no inducement to make a double case, and a double set of costs, yielding double fees in every case of breach of the peace. Now, it will not be denied by any well-read attorney that in all well-regulated police courts the practice in such cases is that where an investigation shows both parties to be guilty, and equally guilty, the court then and there, having both parties present, fines the defendant on the complaint, and summarily fines the complaining witness. Such practice, however, would not subserve the mercenary purposes of a prosecutor, who regards a public office, not as ‘ a public trust’, but as ‘a private snap.’ It is time that in the city of Butte the statute of limitations should run on a certain kind of highhanded practice. J. W. SHANNON.” This publication was alleged in the proceedings to be “a contemptuous and insolent article, concerning the proceedings of said court, and the practice therein.” Upon the hearing, the petitioner raised the question of the jurisdiction of the court to proceed against him as for contempt upon the matter set forth, and insisted that the facts set forth did not constitute a contempt of court, and therefore that the court had no jurisdiction to entertain the proceeding. The police magistrate, however, found the petitioner “guilty as charged, and ordered and adjudged that he pay a fine of fifty dollars, and costs of this prosecution, amounting to the sum of ten dollars, and stand committed to the county jail until such judgment is satisfied.” The proceedings of said court in the matter under consideration, and files and records concerning the same, duly authenticated by certificate and seal, are made a part of this application, to show wherein the imprisonment is “alleged to be illegal,” and “in what the alleged illegality consists.” Comp. St. div. 5, § 1165. And upon the showing it is insisted here by counsel for petitioner that the imprisonment is illegal, because the judgment and commitment proceeded upon a charge which in law does not constitute a contempt of said court, and hence the court was without jurisdiction to assess such punishment. The act of incorporation of the city of Butte grants to the police magistrate “exclusive jurisdiction to try and determine all actions arising under the ordinances of the city, and, in addition, the same jurisdiction conferred by law upon justices of the peace.” Id. § 371. The statute of this state, defining the jurisdiction of a justice of the peace, provides that “a justice may punish any person guilty of a contempt of this court, as defined by this act, by fine or imprisonment, or both; but the fine shall not exceed one hundred dollars, nor imprisonment shall not exceed one day. The acts for which the person is convicted shall be particularly specified in the justice's docket, and the judgment entered thereon.” Comp. St. div. 1, §§ 816, 817, (Code Civil Proc.) Section 584, Code Civil Proc., defines certain “acts or omissions in respect to a court of justice, or proceedings therein” which constitute “contempts of the authority of the court.” There is some controversy in the reports and authorities as to whether a statute defining what shall constitute contempt operates to take away common-law jurisdiction of courts of record in such proceedings, and leaves the court with only statutory jurisdiction and power to punish only where the act or omission comes within the express provisions of statute, or whether such statutes are only declaratory of the common law in part, or supplemental to it, and leave the court free to exercise common-law jurisdiction upon this subject, in cases not provided for by statute, where such case was formerly cognizable at common law. Clark v. People, 12 Amer. Dec. 177, and note; State v. Galloway, 98 Amer. Dec. 404, and note, and cases cited. That question was touched upon by the learned judge in delivering the opinion of the court in ...