State ex rel. Attorney Gen. v. Circuit Court of Eau Claire Cnty.

• Decision Date: 21 September 1897
• Citation: 97 Wis. 1,72 N.W. 193
• Parties: STATE EX REL. ATTORNEY GENERAL v. CIRCUIT COURT OF EAU CLAIRE COUNTY ET AL.
• Court: Wisconsin Supreme Court

97 Wis. 1

72 N.W. 193

STATE EX REL. ATTORNEY GENERAL

v.CIRCUIT COURT OF EAU CLAIRE COUNTY ET AL.

Supreme Court of Wisconsin.

Sept. 21, 1897.

Original action by the state, on the relation of the attorney general, upon complaint of C. Ashbaugh and L. A. Doolittle, against the circuit court of Eau Claire county, W. F. Bailey, circuit judge, C. H. Henry, as sheriff of said county, and others, to prohibit the further prosecution in such court of certain contempt proceedings against said Ashbaugh and Doolittle. Alternative writ made absolute.

This was an action of prohibition commenced by the issuance of an alternative writ out of this court on the 3d day of April, 1897, upon motion of the attorney general, based upon the sworn petition or complaint of Messrs. Ashbaugh and Doolittle. The object of the action was to prohibit the further prosecution in the circuit court of Eau Claire county of certain proceedings then pending therein, wherein Ashbaugh and Doolittle were charged with having committed a criminal contempt of said court, and were threatened with immediate imprisonment therefor. Returns were in due time made to the alternative writ both by the circuit judge, Hon. W. F. Bailey, and by the sheriff of said county, C. H. Henry, and upon order of this court a supplemental return was made by the circuit judge. These returns were challenged as insufficient by demurrer, and upon argument the demurrer was sustained, and judgment rendered adjudging that the contempt proceedings were in excess of the jurisdiction of the court, and awarding an absolute writ of prohibition against the further prosecution of such proceedings. The facts which appeared by the complaint and the various returns were practically undisputed, and were, in brief, as follows: In March, 1897, the circuit court of Eau Claire county was in session, engaged in the trial of cases, the Honorable W. F. Bailey presiding. Judge Bailey's term was to expire in January, 1898, and the election of his successor was to take place on the 6th day of April, 1897. Judge Bailey was a candidate for re-election and two other candidates, Hon. James O'Neill and F. M. Miner, Esq., were also in the field. The petitioner Ashbaugh was the editor and publisher of a newspaper at Eau Claire, and the petitioner Doolittle was a lawyer in active practice at the same city. The campaign had become somewhat heated and acrimonious by the publication of newspaper articles pro and con. Both of the petitioners were strongly opposed to the re-election of Judge Bailey, and on the 11th day of March Mr. Doolittle published in Ashbaugh's newspaper an article several columns in length, charging the judge with being extravagant in the management of the court, and with being partial and unfair in respect to his official conduct in the trial of causes, and with being influenced by corrupt motives. These charges all referred to proceedings and cases already heard and decided, and not to matters then pending or on trial. On the 31st day of March an editorial article, appeared in the said newspaper strongly opposing Judge Bailey's candidacy, and summarizing the charges against him which had been made at length in the Doolittle article. On the 1st day of April following, Judge Bailey made an order on his own motion requiring Messrs. H. H. Hayden and T. F. Frawley to institute contempt proceedings against Ashbaugh and Doolittle on account of the publications. Upon the same day Messrs. Hayden and Frawley presented a sworn petition to the court setting forth the facts as to the writing and publication of the articles, and alleging that Ashbaugh and Doolittle had circulated the articles among the officers of the court and persons summoned as jurors. Upon this petition, and on the 2d day of April, an order was made reciting that “it appears to the satisfaction of the court that H. C. Ashbaugh and L. A. Doolittle have committed a criminal contempt of said court,” and requiring Ashbaugh and Doolittle to appear at 3 o'clock p. m. of the same day, and show cause why they should not be punished for said alleged contempt, and providing for the service of the order at least two hours before the hearing. This order was personally served shortly after 11 o'clock a. m. At 3 o'clock p. m. Ashbaugh and Doolittle appeared in court. Doolittle filed an affidavit of prejudice, but the court held that no change of venue could be granted. Further time was asked for, and time was given until 7:30 o'clock p. m., when Ashbaugh and Doolittle filed an affidavit alleging the truth of the articles, and asking further time until the 5th of April to prepare an answer. Thereupon an order was made that interrogatories be made and served, and that Ashbaugh and Doolittle appear at 10 o'clock a. m. on the 3d day of April, to which time the proceedings were adjourned. The interrogatories were made, asking whether the defendants wrote, published, and circulated the articles, and such interrogatories were served at about 9 o'clock p. m. of the same day. At 10 o'clock a. m. upon the following day (April 3d) the defendants appeared, and asked further time, which was granted, until 7:30 p. m. of the same day. Upon the assembling of the court at that time, the alternative writ of prohibition from this court was produced, and served upon Judge Bailey. Thereupon Judge Bailey announced that he would not proceed further with the pending proceedings, but at once made an order adjudging both Ashbaugh and Doolittle guilty of a new contempt in the immediate presence of the court, by reason of having filed their affidavit alleging the truth of the articles, and committing them to jail for 30 days, such imprisonment to commence at once. The commitment was placed in the hands of the sheriff at once, but was not executed by him. Upon these facts it was adjudged that both of the alleged proceedings for contempt were in excess of the jurisdiction of the circuit court, and the writ of prohibition was made absolute.J. M. Olin, A. L. Sanborn, and The Attorney General, for relators.

T. F. Frawley and H. H. Hayden, for respondents.

WINSLOW, J. (after stating the facts).

The importance of the questions arising in this case, and the imperative necessity of a wise and just decision, can hardly be overestimated. These questions involve not only the right of a court to enforce due respect for its authority, and punish acts which tend to diminish such proper respect and interfere with the performance of its important public duties, but they involve as well the preservation of personal liberty as against summary imprisonment, the right of free speech, the freedom of the press, and the proper limit which may be placed upon the discussion of the fitness of candidates for public office. Fully realizing, as we believe, the gravity of these questions, we have given the case the fullest and most careful consideration within our power, in order that no false step, involving at once consequences disastrous and far-reaching, might be taken. The questions involved upon which all minor questions depend are but two in number: First, did the publications in question constitute a criminal contempt of court? and, second, is the writ of prohibition the proper remedy?

1. Did the publications constitute a criminal contempt of court? In considering this question it has not been deemed necessary to reproduce the artices in this opinion. It is sufficient to say of them that, among other things, they charged Judge Bailey with having been intentionally partial and corrupt in the trial of certain causes in his court. If the charges were true, the unfitness of Judge Bailey for his office was certain. That they were intemperate in tone, and well calculated to exasperate their subject, may be at once admitted. It seems probable also that from their very intemperance they were rather calculated to injure the cause which they were designed to help than otherwise. These questions are, however, foreign to the present inquiry; the question being, not whether Judge Bailey as an individual was grossly slandered, but whether a criminal contempt of court was committed. A criminal contempt at common law may be generally defined as any act which tends either to obstruct the course of justice or to prejudice the trial in any action or proceeding then pending in court. The power of courts of superior jurisdiction created by the constitution to punish such acts is necessarily inherent in such a court, and arises by implication from the very act of creating the court. A court without this power would be at best a mere debating society, and not a court. These principles have been recognized in all courts from time immemorial. In re Rosenberg, 90 Wis. 581-588, 63 N. W. 1065, and 64 N. W. 299; Ex parte Robinson, 19 Wall. 505; Rap. Contempt, § 1. Doubtless, this power may be regulated, and the manner of its exercise prescribed, by statute, but certainly it cannot be entirely taken away, nor can its efficiency be so impaired or abridged as to leave the court without power to compel the due respect and obedience which is essential to preserve its character as a judicial tribunal. The decisions on this point are well nigh unanimous. See authorities collated in note to Percival v. State (Neb.) 50 Am. St. Rep. 568-572 (s. c. 64 N. W. 221). It is, and must be, a power arbitrary in its nature, and summary in its execution. It is, perhaps, nearest akin to despotic power of any power existing underour form of government. Such being its nature, due regard for the liberty of the citizen imperatively requires that its limits be carefully guarded, so that they be not overstepped. It is important that it exist in full vigor, it is equally important that it be not abused. The greater the power, the greater the care required in its exercise. Being a power which arises and is based upon necessity, it must be measured and limited by the necessity which calls it into existence. The ultimate question, then,...