State ex rel. Pulitzer Pub. Co. v. Coleman

• Decision Date: 10 June 1941
• Docket Number: No. 37054,No. 37053.,No. 37055.,37053.,37054,37055.
• Citation: 152 S.W.2d 640
• Parties: STATE OF MISSOURI at the relation of the PULITZER PUBLISHING COMPANY, a Corporation, Relator, v. FRANK B. COLEMAN, as Judge of Division No. 12 of the Circuit Court of the City of St. Louis, who was substituted for THOMAS J. ROWE, JR. Ex parte DANIEL R. FITZPATRICK, Petitioner, v. JAMES J. FITZSIMMONS, Sheriff of the City of St. Louis. Ex parte RALPH COGHLAN, Petitioner, v. JAMES J. FITZSIMMONS, Sheriff of the City of St. Louis.
• Court: Missouri Supreme Court

152 S.W.2d 640

STATE OF MISSOURI at the relation of the PULITZER PUBLISHING COMPANY, a Corporation, Relator, v. FRANK B. COLEMAN, as Judge of Division No. 12 of the Circuit Court of the City of St. Louis, who was substituted for THOMAS J. ROWE, JR. Ex parte DANIEL R. FITZPATRICK, Petitioner, v. JAMES J. FITZSIMMONS, Sheriff of the City of St. Louis. Ex parte RALPH COGHLAN, Petitioner, v. JAMES J. FITZSIMMONS, Sheriff of the City of St. Louis.

No. 37053.

No. 37054

No. 37055.

Supreme Court of Missouri.

Court en Banc, June 10, 1941.

Certiorari and Habeas Corpus.

JUDGMENT OF THE CIRCUIT COURT ORDERED QUASHED AND PETITIONERS ORDERED DISCHARGED.

J. Porter Henry, John R. Green and Jacob M. Lashly for relator; Robert D. Evans, Milton I. Goldstein, Hennings, Green, Henry & Hennings and Lashly, Lashly, Miller & Clifford of counsel.

(1) The power to punish for contempt of court in a summary proceeding exists only when the act punished consists of; misconduct in the court's presence; conduct out of the court's presence which directly obstructs or influences the court's proceedings; or interference with the execution of the court's orders or disobedience thereto. Pa. Anthracite Mining Co. v. Anthracite Miners of Pa., 318 Pa. 401, 178 Atl. 291; State ex rel. Atty. Genl. v. Circuit Court, 97 Wis. 1, 72 N.W. 193; State ex rel. Metcalf v. District Court, 52 Mont. 46, 155 Pac. 278; Cheadle v. State, 110 Ind. 301, 11 N.E. 426; Railroad v. Gildersleeve, 219 Mo. 170; Thomas, Law of Constructive Contempt, 40. The power is given only where prompt action is necessary. Carder v. Carder, 61 S.W. (2d) 388; Thompson v. Farmers Exchange Bank, 333 Mo. 437; State ex rel. Hawkins v. Utley, 124 S.W. (2d) 684; Railroad v. Gildersleeve, 219 Mo. 170; Frankfurter & Landis, Power to Regulate Contempts, 37 H.L. Rev. 1010, 1022; Thomas Law of Constructive Contempt, 68; In re Ellison, 256 Mo. 378. Even then its exercise has been sharply scrutinized, as the judge's personal feelings may enter into the judgment. State ex rel. Madden v. Padberg, 340 Mo. 675; Ex parte Creasy, 243 Mo. 679; In re Howell and Ewing, 273 Mo. 96; Ex parte Nelson, 251 Mo. 63; In re Clark, 208 Mo. 121; In re Shull, 221 Mo. 623; State ex rel. Railroad v. Bland, 189 Mo. 197. (a) A publication relating to a case which has been finally completed does not constitute contempt, even though it scandalizes the court. Then there is no longer any need for prompt action. State v. American News Co., 64 S.D. 385, 266 N.W. 827; State v. Sweetland, 3 S.D. 503, 54 N.W. 415; Nixon v. State, 207 Ind. 426, 193 N.E. 591; Dunham v. State, 6 Iowa, 245; State v. Anderson, 40 Iowa, 207; State ex rel. Metcalf v. District Court, 52 Mont. 46; State ex rel. Atty. Genl. v. Circuit Court, 97 Wis. 1, 72 N.W. 193; In re Dalton, 46 Kan. 253, 26 Pac. 673; Storey v. People, 79 Ill. 45, 22 Am. Rep. 158; Zuver v. State, 188 Ind. 60, 121 N.E. 828; In re Egan, 24 S.D. 301, 123 N.W. 478; State v. Kaiser, 20 Ore. 50, 23 Pac. 964; Nelles and King, Contempt by Publication in the United States, 28 Col. L. Rev. 401, 525; Thomas, Law of Constructive Contempt; Frankfurter & Landis, Power to Regulate Contempts, 37 H.L. Rev. 1010; 48 Yale L.J. 54; 36 H.L. Rev. 93; 18 H.L. Rev. 392; Craig v. Hecht, 263 U.S. 255; Railroad v. Gildersleeve, 219 Mo. 170; Patterson v. Colorado, 205 U.S. 454; In re Pryor, 18 Kan. 72, 26 Am. Rep. 747; Ex parte Steinman, 95 Pa. 220, 40 Am. Rep. 637; Rutherford v. Holmes, 66 N.Y. 368; Adams v. Gardner, 176 Ky. 252, 195 S.W. 412. (b) A publication which refers to a pending cause cannot be punished summarily except perhaps in the event that it influences or obstructs the proceedings therein. At common law the summary contempt power does not extend to publications made out of the presence of the court. The cases which suggest a broader power are based upon historical fallacy. Sir John Fox, Contempt of Court, 227; Frankfurter & Landis, Power to Regulate Contempt of Court, 37 H.L. Rev. 1010; Nelles & King, Contempt by Publication in the United States, 28 Col. L. Rev. 401, 525; Pa. Mining Co., v. Miners of Pa., 318 Pa. 401; Bridges v. Circuit Court, 94 Pac. (2d) 983; Michaelson v. United States, 266 U.S. 42. To extend the contempt power to publications made out of the presence of the court would be repugnant to and inconsistent with the Constitutions of the United States and of Missouri, and to our democratic institutions. R.S. 1929, sec. 645; Gillilan v. Gillilan, 278 Mo. 112; Pa. Mining Co. v. Miners of Pa., 318 Pa. 401; Frankfurter & Landis, Power to Regulate Contempt, 37 H.L. Rev., pp. 1042-1048; Railroad v. Gildersleeve, 219 Mo. 170; Nelles & King, Contempt by Publication in the United States, 28 Col. L. Rev. 401; Jones v. Securities & Exchange Comm., 298 U.S. 1. Relator's publications are not punishable as contempt upon the theory that they obstructed or influenced the pending cause of State of Missouri v. John P. Nick and Clyde A. Weston. Upon review of a conviction for criminal contempt the findings of the trial court are not only not conclusive upon the reviewing court, and no presumption will be indulged in their favor, since the courts recognize that they were made by a judge who had a personal interest or feeling in the matter. In re Howell v. Ewing, 273 Mo. 96; Ex parte Creasy, 243 Mo. 679; In re Shull, 221 Mo. 623. The court's findings with respect to the pending cause of State v. Nick and Weston are indefensible, because the contrary averments of relator's return were admitted by the motion for judgment on the pleadings, or, if not admitted, were at least sufficient to put these matters in issue, and the publications show on their face that the findings are not true. Cammann v. Edwards, 340 Mo. 1; In the Matter of Fenn, 341 Mo. 684; Cheadle v. State, 110 Ind. 301; Nixon v. State, 207 Ind. 426; State v. American News Co., 64 S.D. 385, 266 N.W. 827; 48 Yale L.J. 54. (2) The court below was without jurisdiction to render the judgment herein because, as appears on the face of the record, the court had, without notice to relator and in advance of a hearing, prejudged the cause and determined that relator was guilty of contempt. (a) It is universally recognized that a judge cannot be expected to act with complete impartiality in his own cause. This is particularly true in a criminal contempt proceeding, when the alleged contempt is in the nature of a personal affront to the judge who tries the cause. Rector v. Price, 1 Mo. 198; Canon 29, Canons of Judicial Ethics; 33 C.J. 991; R.S. 1929, secs. 1848, 3648; In re Howell v. Ewing, 273 Mo. 96; Craig v. Hecht, 263 U.S. 255; Cooke v. United States, 267 U.S. 517; Chicago, B. & Q. Ry. Co. v. Gildersleeve, 219 Mo. 170; Ex parte Creasy, 243 Mo. 679. (b) Such prejudgment and predetermination, even though made by the court with a mental reservation to modify them if at the hearing subsequently had anything should transpire to justify such modification, deprived relator of a fair and impartial trial and of due process of law, and thus violated Section 30 of Article II of the Constitution of Missouri and Section 1 of the Fourteenth Amendment to the Constitution of the United States. Ex parte Nelson, 251 Mo. 63; In re Clark, 208 Mo. 121; Cooke v. United States, 267 U.S. 517; Tumey v. Ohio, 273 U.S. 510; Inland Steel Co. v. Natl. Labor Relations Board, 109 Fed. (2d) 9; 16 C.J.S. 1268. (3) The proceedings herein deprived relator of the right to a trial by jury which is guaranteed not only by the due process clauses, but also, specifically, by Sections 14 and 28 of Article II of the Constitution of Missouri. 1 Laws of the District of Louisiana, pp. 8, 12-13 (also cited as 1 Territorial Laws of Missouri, p. 8); Sec. 8, Art. XIII, Const., 1820; Sec. 8, Art. XIII, Const., 1855; Sec. 17, Art. I, Const. 1865; State ex rel. v. Withrow, 133 Mo. 500; State ex rel. Peper v. Holtcamp, 235 Mo. 232; Ex parte Higgins v. Hoctor, 332 Mo. 1022; Ex parte Creasy, 243 Mo. 679. (a) A judgment which violates a constitutional right or guaranty is in excess of or want of jurisdiction, and therefore void. Thus, when a court's inherent power to punish for contempt comes into conflict with a constitutional guaranty, it is the contempt power which must give way and the constitutional guaranty which must be upheld. Ex parte Nelson, 251 Mo. 63; Ex parte Creasy, 243 Mo. 679; In re Clark, 208 Mo. 121; Ex parte Arnold, 128 Mo. 256; Ex parte Lange, 18 Wall. 163; Coughlin v. Ehlert, 39 Mo. 285; In the Matter of Fowler, 310 Mo. 339. (4) The court below was without jurisdiction to render the judgment herein, because this denied, limited and abridged the right of freedom of speech and of the press which is guaranteed to relator by Section 14, Article II, of the Constitution of Missouri by Section 30, Article II, of the Constitution of Missouri, and by Section 1 of the Fourteenth Amendment to the Constitution of the United States. United States v. Schwimmer, 279 U.S. 644; Gitlow v. New York, 268 U.S. 652; Gilbert v. Minnesota, 254 U.S. 325; Patterson v. Colorado, 205 U.S. 454; Stromberg v. California, 283 U.S. 359; Near v. Minnesota, 283 U.S. 697; Grosjean v. American Press Co., 297 U.S. 233; De Jonge v. Oregon, 299 U.S. 353; Lovell v. Griffin, 303 U.S. 444; Schneider v. State, 60 Sup. Ct. 146, 84 L. Ed. 115; Thornhill v. Alabama, 60 Sup. Ct. 736, 84 L. Ed. 659; Cantwell v. Connecticut, 60 Sup. Ct. 900, 84 L. Ed. 836; Ex parte Creasy, 243 Mo. 679; State ex rel. Atty. Genl. v. Circuit Court, 97 Wis. 1; Powell v. Alabama, 287 U.S. 25; Brown v. Mississippi, 297 U.S. 278; Herndon v. Lowry, 301 U.S. 242; Johnson v. Zerbst, 304 U.S. 458; Palko v. Connecticut, 302 U.S. 319; Abrams v. United States, 250 U.S. 616; Whitney v. California, 274 U.S. 357; Diener v. Star-Chronicle Pub. Co., 230 Mo. 613; Schenck v. United States, 249 U.S. 47; Reynolds v. United States, 98 U.S. 145; Ex parte McCormick, 129 Tex. Cr. 457, 88 S.W. (2d) 104; Nixon v. State, 207 Ind. 426, 193 N.E. 591; State v. American News Co., 64...