State v. Bee Publishing Company

• Citation: 83 N.W. 204,60 Neb. 282
• Decision Date: 07 June 1900
• Docket Number: 11,399
• Parties: STATE OF NEBRASKA v. BEE PUBLISHING COMPANY
• Court: Supreme Court of Nebraska

83 N.W. 204

60 Neb. 282

STATE OF NEBRASKA v. BEE PUBLISHING COMPANY

No. 11,399

Supreme Court of Nebraska

June 7, 1900

ORIGINAL jurisdiction. This was a criminal proceeding in contempt, brought on the relation of the attorney general. The offending articles appear in the opinion. The defendants upon their request, were awarded separate trials, but not as a matter of right. The defendant the Bee Publishing Company answered, admitted the publication; but entered a plea of non possemus, by reason of being a corporation. It also pleaded in justification, that the matters published were items of news, and of common report at the time of publication. It further pleaded that the case commented upon in the offending article was res adjudicata. The defendant Edward Rosewater in open court, admitted the publication of the offending articles, and that he was the editor of the Omaha Bee. He also waived his constitutional right, and consented to be sworn as a witness on behalf of the state. He was sworn accordingly and testified, inter alia, on his own motion and on cross-examination by Mr. Oldham, to the following effect that is to say: That witness dictated the article first set out in the information, but had no knowledge of the other articles until after the citation herein was served upon him; that Mr. Connell, of counsel in the case of State v. Kennedy, had shown him his brief for the purpose of editorial comment as witness supposed; and such brief was the occasion of the article which he had dictated. In general terms, he denied any interest in the transaction but the public good. The object of the articles was to reach public opinion and through it the court. The court held that it would take judicial cognizance of its own records, and that the action of State of Nebraska v. Kennedy was then pending before the court. Both cases were submitted upon the pleadings and proof and argued together. Bee Publishing Company, defendant, convicted and fined $ 500 and costs.

Willis D. Oldham, Deputy Attorney General, for the state, said: This was an information filed on behalf of the state. The defendants were, respectively, the editor and publisher of the Omaha Bee, a newspaper with an extensive circulation within the jurisdiction of this honorable court. The articles published related to a matter now pending before this court for a determination. They were evidently designed to influence the decision. It mattered not whether they would have that effect. The question was not what would the effect be, but what was their designed effect. In law, every man is presumed to intend the natural and probable consequences of his own acts; and his intent was not to be gathered from his plea of the baby act. I did not mean to would pass very well in the nursery, but it had no place in a court of justice. Ignorantia facti excusat--ignorance of fact excuseth--was hornbook law. But the maxim, Ignorantia juris quod quisque tenetur scire, neminem excusat--ignorance of law, which every one is held to know, excuseth no one--was black letter law, founded on the gravest reasons of public policy. If the defendant Rosewater was ignorant of the fact that the case of State v. Kennedy was pending, the ignorance of that fact might excuse him. But he could not be ignorant thereof. He himself testified that Connell had shown him his brief, for the purposes of editorial comment; and that brief had been the basis of the article which he dictated. The defendant Rosewater, having knowledge of the fact, must know the law which regulated his own conduct. Rosewater was the vice-principal of the Bee Publishing Company, and his knowledge was theirs. The liability of a corporaton in a case of this kind was settled in the Massachusetts case cited by the state. It mattered not whether or not the conduct of the governor and the attorney general had been correct. The court would take care of that. Louis XVI. was justly condemned to the guillotine; but that righteous condemnation did not excuse the merciless rabble of Parisian canaille and sansculottes that clamored for his death in the galleries of the national convention; and sought to forestall its judgment.

In the mind's eye, we might behold the ancient counterpart of the subject of this contempt proceeding when we reflect on another scene which took place about one thousand eight hundred and sixty-seven years ago (according to Usher), and which is being acted this year in a little town of the Bavarian Tyrol--a mob howling for the blood of the Man of Nazareth. The cowardly procurator tried to effect a change of venue, on the court's own motion, to Herod, tetrarch of Galilee. When this device failed, he disregarded the prudent advice of Mrs. Pilate, and yielded to what our friend from Omaha would call an enlightened public opinion. It was the idea of keeping any deliberative body free from this outside clamor that made that great commoner, Thomas B. Reed, threaten to clear the galleries when speakers were applauded.

If a plea of res adjudicata could be successfully made in State v. Kennedy, that fact made it no less an action pending. You might as well say that because a common traverse or nil debet could be successfully maintained against a declaration upon an action of debt there was no action pending.

The defendant Rosewater said that only four states had sustained actions for constructive contempt in cases of this kind. The speaker had found forty-seven decisions in the states and territories; and had not reached the bottom yet.

The state cited: Ex parte Barry, 85 Cal. 603; People v. Stapleton, 18 Colo. 568; In re Chadwick, 109 Mich. 588; People v. Wilson, 64 Ill. 195; Territory v. Murray, 7 Mont. 251; Commonwealth v. Kneeland, 20 Pick. [Mass.], 206; Myers v. State, 46 Ohio St. 473; State v. Morrill, 16 Ark. 384; In re Woolley, 11 Bush [Ky.], 110; In the Matter of Moore, 63 N. Car. 397; Telegram Co. v. Commonwealth, 172 Mass. 294; State v. Circuit Court, 38 L. R. A. 558; Blackstone, book 4, p. 283; Respublica v. Oswald, 1 Dall. [U.S.], 319; Ex parte Jones, 13 Ves. [Eng.], 237; American Law Review, May, 1900; State v. Faulds, 17 Mont. 140.

The authority to punish for contempt is a necessary incident, inherent in the very organization of all legislative bodies, and of all courts of equity, independent of statutory provisions. Tenney's Case, 3 Fost. [N.H.], 162; State v. Matthews, 37 N.H. 453; Anderson v. Dunn, 6 Wheat. [U.S.], 204; State v. Copp, 15 N.H. 212; Mariner v. Dyer, 2 Greenl. [Me.], 165; Stewart v. Blaine, 1 McArth. [D. C.], 453; also Stewart v. Ordway, decided therewith; Yates v. Lansing, 9 Johns. [N.Y.], 396; 1 Burr's Trial, 352; Ex parte Adams, 25 Miss, 883; People v. Freer, Coleman & Caine's Cases [N.Y.], 283.

Stewart Rapalje, a learned law writer of New York city, published in 1884 a work on contempt, in which he says: "It is conclusively settled by a long line of decisions that at common law, all courts of record have an inherent power to punish contempts committed in facie curiae, such power being essential to the very existence of a court as such, and granted as a necessary incident in establishing a tribunal as a court. And this power extends to the punishment of willful contempts committed by corporate bodies as well as individuals. Each superior court being the judge of its own power to punish contemnors, no other court can question the existence of that power, and the facts constituting the contempt need not be set out in the record." Rapalje, Contempts, p. 1.

Publications which have a tendency to prejudice pending causes can not be permitted. Pool v. Sacheverel, 1 Williams P. [Eng.], 675; Farley's Case, 2 Ves. Sr. [Eng.], 520; Anonymous, 2 Atkyns [Eng.], 469; Respublica v. Oswald, 1 Dall. [U.S.], 319; Bayard v. Passmore, 3 Yea. [Pa.], 438; In the Matter of Sturoc, 48 N.H. 428.

In Pool v. Sacheverel, supra, an advertisement in a newspaper, offering a pecuniary reward for legal proof of marriage, was held contempt, as tending to subornation of perjury. In Sturoc's Case, supra, the offense was a written communication left at the office of a newspaper published at the shiretown. The article appeared the same week that the nisi prius court was in session, and at that session the cause was pending which was the subject of the article. The editor testified that the writer said he was not particular that the article be published that week, and did not care if it was not published at all. The defendant disavowed any ill-intention; denied that he knew the action was pending at that session; and the court gave him full credit, but imposed a fine of $ 30 to show that such publications, in such circumstances, were illegal and not to be tolerated.

The intention of a publication will not justify it, if it be, in the opinion of the court, contempt against the court. People v. Freer, Coleman & Caine's Cases [N.Y.], 283.

Edward Rosewater, appearing in his own behalf, said: The proceeding in contempt was an arbitrary one, borrowed from monarchical times and countries; it was inimical to the genius of our government and foreign to the spirit of our institutions. There never had been an original proceeding in contempt before the supreme court of the United States, or before forty of the supreme courts of the states of the Union. A court should be chary in the exercise of a power whose abuse might tend to cripple the power of the press as a guide of public opinion. The press had a sacred duty to perform in such matters, for a faithful performance of which it would be held to a strict account before the great tribunal of mankind. If an article was not libelous, disrespectful or meddlesome per se, and if this character did not appear upon its face, unaided by the innuendoes of a criminal pleader the defendant should not be...