State v. Shepherd

• Decision Date: 13 October 1903
• Citation: 76 S.W. 79,177 Mo. 205
• Parties: STATE ex inf. CROW, Atty. Gen., v. SHEPHERD.
• Court: Missouri Supreme Court

76 S.W. 79

177 Mo. 205

STATE ex inf. CROW, Atty. Gen., v. SHEPHERD.

Supreme Court of Missouri.

October 13, 1903.

CONTEMPT OF COURT — WHAT CONSTITUTES CONTEMPT — POWER OF COURT TO PUNISH — STATUTORY REGULATIONS — VALIDITY — PROCEEDINGS FOR PUNISHMENT FOR CONTEMPT — RIGHT TO JURY TRIAL — DUE PROCESS OF LAW — LIBERTY OF THE PRESS.

1. The Supreme Court has the inherent power and jurisdiction to punish contempts summarily.

2. Civil contempts are such contempts as affect a private person—as, for instance, where a party refuses to obey an order of court which will benefit such private person.

3. In civil contempts the case is not punitive, but executive, and the punishment is to commit the offender until he complies with the order.

4. Criminal contempts are all acts committed against the majesty of the law, or against the court as an agency of the government, and in which, therefore, the whole people are concerned.

5. In criminal contempts the proceeding is punitive, and the punishment operates in terrorem, and has a tendency to prevent the repetition of the offense.

6. Direct contempts are those which are committed in the presence of the court while in session, or so near as to interrupt its proceedings.

7. Constructive contempts arise from matters not transpiring in court, but which tend to degrade or make impotent the authority of the court, or which tend to impede or embarrass the administration of justice.

8. While the power to punish in cases of direct contempts and constructive contempts is the same, the procedure is different—in cases of direct contempts the court acts spontaneously and commits the offender summarily, while in cases of constructive contempts the court, on information, issues a citation to the offender to show cause why he should not be punished for contempt.

9. Contempts relating to a pending cause may either consist in abusing parties concerned in cases pending in court, or in prejudicing mankind against persons before the cause is heard, while contempts consisting of scandalizing the court itself need not relate to a pending suit.

10. The Supreme Court has the power to punish summarily civil and criminal contempts, whether the contempt be direct or constructive.

11. A newspaper publisher who published an article attacking the Supreme Court, and averring that "it has reversed and stultified itself in this case [a personal injury action against a railroad company] until no sane man can have any other opinion but that the judges * * * have been bought in the interest of the railroad," and that "the Supreme Court has, at the whipcrack of" the railroad, "sold its soul to the corporations," and designating the court as a "venal court," is guilty of criminal contempt, because he scandalizes the court itself.

12. He is also guilty of civil contempt, because he abuses parties to a suit still pending in court, and seeks to prejudice mankind against parties to the litigation.

13. Const. art. 3, which distributes the powers of the government between the legislative, executive, and judicial departments, and which provides that no person charged with the exercise of the powers properly belonging to one of the departments shall exercise any power properly belonging to either of the others, prohibits the Legislature from abridging the power of the Supreme Court to punish for contempt; and therefore Rev. St. 1899, § 1616, authorizing courts of record to punish, as for criminal contempt, persons guilty of specified acts, "and no other," is invalid.

14. Const. art. 2, § 28, guarantying the right of trial "by jury as heretofore enjoyed," does not confer the right to a jury trial in contempt cases; the right of trial by jury in contempt cases being unknown to the laws of Missouri at the time of the adoption of the Constitution.

15. Where the return to the order to show cause in contempt proceedings instituted by the Attorney General filing an information in court, setting up the acts constituting the alleged contempt, raised only questions of law, the court could not order a jury trial, even if the case was one wherein a jury trial could be demanded.

16. One adjudged guilty of criminal contempt, and fined, after having been regularly charged therewith, and after having appeared in court in person and by counsel, and after having pleaded, and after having had a trial according to the practice in such cases, has had the benefit of due process of law, within Const. art. 2, § 30, providing that no person shall be deprived of life, liberty, or property without due process of law.

17. Neither has he been deprived of the benefits guarantied by Const. U. S. Amend. 14, § 1.

18. Const. art. 2, § 14, providing that no law shall be passed impairing the freedom of speech, and that every person shall be free to say, write, or publish whatever he will on any subject, being responsible for the abuse thereof, includes the press, but confers no greater liberty on the press than is guarantied to any citizen, and neither has any right to scandalize any one or any institution.

19. The constitutional freedom of speech or the liberty of the press, when applied to newspapers, consists of the right to freely publish whatever one pleases, and to be protected against any responsibility therefor, except so far as the publication is blasphemous, obscene, seditious, or scandalous. It is the right to speak the truth, but does not include the right to scandalize courts, or to libel private citizens or public officers.

20. Prior to the fellow-servant law, a brakeman was injured by a wreck of the train on which he was working. He based his right to recover on the ground that the railroad company furnished an unsafe freight car. The company claimed that the wreck was caused by the wheels of the car jumping the track, and that the injury was caused by a risk assumed by the brakeman. A majority of the Supreme Court was of opinion that there was no evidence to support plaintiff's case, while a minority was of opinion that there was sufficient evidence to take the case to the jury. No judge charged another with dishonesty of opinion, and there was no foundation for any such charge. A newspaper publisher published an article concerning the case, and, in effect, charged the court with corruption. Held no justification or excuse for the publication of the article.

In Banc. Proceedings for contempt by the state, on the information of Edward C. Crow, Attorney General, against J. M. Shepherd. Defendant adjudged guilty of contempt.

The Attorney General, for plaintiff. N. M. Bradley and Alexander New, for defendant.

MARSHALL, J.

This is an ex officio information by the Attorney General, informing the court that the defendant, as publisher of a certain weekly newspaper at Warrensburg, Mo., called the Standard-Herald, on the 19th of June, 1903, published in said paper the following article: "When a citizen of Missouri stops long enough to think of the condition of affairs in his state, it is enough to chill his blood. A grand jury in Cole county has just found indictments against four members of the highest lawmaking body in the state, and the St. Louis grand jury has heard evidence within the past few months that, if it had the necessary jurisdiction, would have indicted many other members of the State Senate. The Missouri citizen has also seen the Cole county grand jury dissolved before the work mapped out for it was hardly begun, on the advice of the Attorney General of the state. They also see the Chief Executive sitting passively at his office in the Statehouse, not making a move to bring to justice the men who have been proven guilty of boodling in the Missouri Legislature by the St. Louis grand jury, but over whom the authorities of that city have no jurisdiction. And now, as the capsheaf of all this corruption in high places, the Supreme Court has, at the whipcrack of the Missouri Pacific Railroad, sold its soul to the corporations, and allowed Rube Oglesby to drag his wrecked frame through this life without even the pitiful remuneration of a few paltry dollars. Learned men of the law say that Rube Oglesby had the best damage suit against a corporation ever taken to the Supreme Court. This very tribunal, after reading the evidence and hearing the arguments of the attorneys, rendered a decision sustaining the judgment of the lower court, which decision was concurred in by six of the seven members of the court. This is usually the end of such cases, and the decision of a Supreme Court, once made, usually stands. But not so in the Oglesby case. Three times was this case, at the request of the railway attorneys, opened for rehearing, and three times was the judgment of the lower court sustained. But during this time, which extended over a period of several years, the legal department of this great corporation was not the only department which was busy in circumventing the defeat of the Oglesby case. The political department was very, very busy. Each election has seen the hoisting of a railway attorney to the Supreme Bench, and, when that body was to the satisfaction of the Missouri Pacific, the onslaught to kill the Oglesby case began. A motion for a rehearing was granted, and at the hearing of the case it was reversed on an error in record of the trial court, and was sent back for retrial. That was in the early part of the year 1902. The case was tried in Sedalia before Circuit Judge Longan, one of the ablest jurists in the state, and we have been informed that no error was allowed to creep into the record at the second trial. Again the jury rendered judgment in favor of Oglesby for $15,000, and again the case was appealed to the Supreme Court. An election was coming on, and the railroad needed yet another man to beat the Oglesby case. The Democratic nominating convention was kind, and furnished him, in the person of Fox. The railroad, backed by four judges on the bench, allowed the case to come up for final hearing, and...