OPINION
Wolfe
Justice.
Original proceeding upon a petition for a writ of
prohibition to prohibit the defendant as City Judge of the
City Court of Price, Utah, from proceeding further to hear or
decide a charge of contempt of court or punish the plaintiff
therefor. The application for the alternative writ was heard
ex parte. The writ issued ordering the defendant to show
cause on or before a day certain why the writ should not be
made permanent.
The
pleadings show that the petitioner was served with a warrant
of attachment on October 30, 1944. The warrant was issued by
the defendant, S. J. Sweetring, Judge of the City Court of
Price, requiring the petitioner to answer a charge of
contempt of court. The warrant of attachment issued upon the
presentation of an affidavit of one Carlyle Pace, deputy
clerk of the City Court of Price. After the alternative writ
issued and was served on the defendant, a supplemental
affidavit was filed. The affidavits reveal that the alleged
contempt arises out of the fact that the petitioner published
a certain pamphlet entitled "Morals and the Mayor"
in which reference was made to the functioning of the City
Court. The affiant concluded that the pamphlet
"reflects
on the integrity of the said Judge and Court, it defames said
Judge and said Court; it is a personal and scurrilous abuse
of said Judge as a Judge; and constitutes a contempt of said
City Court of Price."
The
supplemental affidavit incorporated by reference a copy of
the pamphlet.
Both
the affidavit and supplemental affidavit affirmatively show
that the contempt proceeding is bottomed solely upon the
publication of the pamphlet, "Morals and the
Mayor." The pamphlet is too lengthy to reproduce here in
full and much of it is unrelated to the subject under
discussion. The following are the only statements which
either directly or indirectly refer to the City Court:
In referring to the various sources of revenue for
the City of Price the pamphlet says:
"It
is claimed that the fines and forfeitures collected are only
$ 5093.37 more than the cost of maintaining the city court.
That statement obscures the issue, because that court has to
be maintained anyway. The income from the city court, as
shown by the city statements, amounts annually to $
13,741.89. * * *"
After
referring to two other sources of revenue, the pamphlet
states:
"Revenue
from the Underworld
"But
more important than allowing corporations to escape just
taxes is the planned support of city government by permitting
vice and collecting money for it from the underworld. Fines
have a legitimate place in restraining crime, but permitting
it by collecting periodical fines or forfeitures violates the
statutes, is anti-social and is palpably immoral. This system
is and has been the policy of city government of Price. It is
the policy of Mayor J. Bracken Lee. If he has agreed verbally
with his city marshal, city judge and/or other city officials
to carry it out, it is overt conspiracy; if it results only
from general agreement between them and the underworld it is
tacit conspiracy, and conspiracy to break the law and promote
crime is itself a criminal offense."
On page
6 of the pamphlet the petitioner says:
"The
question may arise after reading these ugly facts, why the
State does not intervene. It is difficult, as public officers
know, to enforce state law within a municipality when the
local officers are only indifferent. It is much harder when
there is open resistance by them. The latter situation has
existed at Price."
On page
7, after describing a so-called "John Doe" receipt
for bail signed by the
Chief of Police, the pamphlet contains the following:
"This
'John Doe' receipt is the commonly used method of
collecting what is of course a virtual license for gambling.
It is periodical and frequently covers in the record a number
of offenders. In Volume 1 of the Register of Criminal
Actions, Price City there are recorded numerous cases of
forfeitures. For example:
"Case
No. 335. John Doe and Richard Roe forfeited $ 70.00 on March
29, 1943, for operating a gambling device.
"Then follows extracts of similar entries of
forfeitures by John Doe and Richard Roe for operating
gambling devices."
Since
the defendant judge is the only judge of the City Court of
Price, the above statements refer indirectly to him as judge
to the same extent that they refer to the Court as such.
From
the above quotations it appears that all of the statements
made relate to past conduct of the judge and court. They in
no way tend to nor advise a disregard of any lawful order of
the court. Nor do they tend to interrupt the due course of a
trial or attempt to influence the result of a pending case.
They were made out of the view and presence of the court and
judge. If the court can punish this petitioner for contempt
solely upon the grounds that he published this pamphlet, it
is difficult to see why the court could not punish for
contempt any person who sought in any manner to criticize the
court or judge. The result of such a doctrine is, as noted by
State ex rel. Attorney General v.
Circuit Court, 97 Wis. 1, 72 N.W. 193, 196, 38
L.R.A. 554, 65 Am. St. Rep. 90, such that "all
unfavorable criticism of a sitting judge's past official
action can be at once stopped by the judge himself, or, if
not stopped, can be punished by immediate imprisonment. If
there can be any more effectual way to gag the press, and
subvert freedom of speech, we do not know where to find
it."
There
can be no doubt that at the early common law any comment upon
the court's action in either concluded or pending cases,
where libelous or calculated to bring the court into
disrepute, was freely punishable as contempt. See the
excellent collection of authorities in 68 L. R. A. 251. It is
there stated:
"The
whole theory of the early common law of contempt is admirably
delivered by Wilmot, J., in King v. Almon
Wilmot's Notes, page 253, a case which was never actually
decided by reason of its abatement in consequence of the
death of the defendant before judgment. The publication there
complained of was a volume containing a diatribe against Lord Mansfield for allowing an amendment of
pleading as of course, and apparently from corrupt motives
in a concluded case, and further charging him with having
introduced a practice to defeat the efficacy of the writ of
habeas corpus. It is there said: 'The arraignment of the
justice of the judges is arraigning the King's justice;
it is an impeachment of his wisdom and goodness in the choice
of his judges, and excites in the mind of the people a
general dissatisfaction with all judicial determinations, and
indisposes their minds to obey them; and whenever men's
allegiance to the laws is so fundamentally shaken, it is the
most fatal and most dangerous obstruction of justice, and, in
my opinion, calls out for a more rapid and immediate redress
than any other obstruction whatever, -- not for the sake of
the judges as private individuals, but because they are the
channels by which the King's justice is conveyed to the
people. To be impartial, and to be universally thought so,
are both absolutely necessary for the giving justice that
free, open and uninterrupted current which it has for many
ages found all over this Kingdom, and which so eminently
distinguishes and exalts it above all nations upon the earth
* * *. The constitution has provided very apt and proper
remedies for correcting and rectifying the involuntary
mistakes of judges, and for punishing and removing them for
any voluntary perversions of justice. But, if their authority
is to be trampled upon by pamphleteers and newswriters and
the people are to be told that the power given to the judges
for their protection is prostituted to their destruction, the
court may retain its power some little time; but I am sure it
will instantly lose all its authority, and the power of the
court will not long survive the authority of it. Is it
possible to stab the authority more fatally than by charging
the court, and more particularly the chief justice, with
having introduced a rule to subvert the constitutional
liberty of the people? A greater scandal could not be
published. * * * It is conceded that an act of violence upon
his person when he was making such an order would be a
contempt punishable by attachment. Upon what principle? For
striking a judge in walking along the streets would not be a
contempt of the court. The reason, therefore, must be, that
he is in the exercise of his office, and discharging the
function of a judge of this court; and, if his person is
under this protection, why should not his character be under
the same protection? It is not for the sake of the
individual, but for the sake of the public, that his person
is under such protection; and, in respect of the public, the
imputing corruption and the perversion of justice to him, in
an order made by him at his chambers, is attended with much
more mischievous consequences than a blow; and therefore the
reason of proceeding in this summary manner applies with
equal, if not superior, force, to one case as well as the
other. There is no greater obstruction to the
execution of justice from the striking a judge than from
abusing him, because his order lies open to be enforced or
discharged, whether the judge is struck or abused for making...
