State v. The American-News Co.

• Decision Date: 06 March 1934
• Docket Number: 7526
• Citation: 62 S.D. 456,253 N.W. 492
• Parties: STATE OF SOUTH DAKOTA, Respondent, v. THE AMERICAN-NEWS COMPANY, et al., Appellants.
• Court: South Dakota Supreme Court

62 S.D. 456

253 N.W. 492

STATE OF SOUTH DAKOTA, Respondent,

v.

THE AMERICAN-NEWS COMPANY, et al., Appellants. South Dakota Supreme Court Appeal from Circuit Court, Brown County, SD Hon. J.H. Bottum, Judge #7526—Motion to Dismiss Denied Hepperle & Fuller, Aberdeen, SD Morrison & Skaug, Mobridge, SD Oppenheimer, Dickson, Hodgson, Brown & Donnelly, St. Paul, MN Attorneys for Appellants. Geo. H. Fletcher, B.A. Walton, Geo. W. Crane, E.B. Harkin, Aberdeen, SD Attorneys for the State. Opinion Filed Mar 6, 1934

ROBERTS, Presiding Judge.

The defendant the American-News Company, engaged in the publication of three daily newspapers in the City of Aberdeen, S.D., James A. Mathews, president of the company, and Howard Anderson, editor, were adjudged guilty of contempt by the circuit court in and for Brown County. The proceeding is based on an affidavit of three members of the bar engaged in the practice at Aberdeen, alleging, in substance, that the defendants willfully and maliciously, with the intent and purpose of embarrassing, obstructing, and intimidating the court and the officers thereof in the due administration of justice in a case entitled State v. Royal A. Hasse and other cases then pending, and with the further intent and purpose of preventing a fair and impartial trial and disposition in each of such cases, published the articles set forth in the affidavit. We need not here state the contents of the publications. After denial by the court of motions to discharge the attachment and quash the affidavit and overruling of demurrers, each of the defendants interposed an answer to the allegations contained in the affidavit for contempt. The defendants specifically deny that the newspaper articles were published concerning any pending trial or were intended to influence, intimidate, or embarrass the court in the trial of any case or were intended to influence public opinion against the court or the judge thereof or to bring either into contempt or disrepute. The cause proceeded to a hearing upon the affidavit and answers, and the court thereafter entered findings of fact and conclusions of law. The court found the facts substantially as alleged in the affidavit upon which the attachment for contempt was issued, and that the publication of the newspaper articles by the defendants was willful and contemptuous, and that their circulation was intended by the defendants to impede and embarrass the circuit court in the due administration of justice in the criminal cases mentioned in the affidavit. As punishment for its contempt, the court imposed a fine of $100 upon the defendant the American-News Company, and a sentence of thirty days in the county jail and a fine of $100 upon each of the other two defendants. The jail sentences were suspended during good behavior and until the further order of the court. From the judgment so entered and from an order denying motion for new trial, the defendants have filed with the clerk of this court a notice of appeal.

Motion is made to dismiss the appeal on the ground that the judgment and order are not reviewable in this court. At common law the exercise by a court of competent jurisdiction of the power to punish for contempt could not be reviewed. 13 CJ 97, § 155. In Crosby’s Case, 3 Wils. K.B. 189, 95 Eng, Rep. Reprint 1005 at page 1014, Mr. Justice Blackstone said: “The sole adjudication of contempts, and the punishment thereof, in any manner, belongs exclusively and without interfering to each respective court.” In Vilas v. Burton, 27 Vt. 56, it is said: “Proceedings for contempt in one court ... are not revisable in any other court. ... If it be said that a power to punish at discretion is a dangerous power to trust to a single magistrate, however high, we can only say, it is one which the law of England has always seen fit to repose there, ... and one which, in these times, ordinarily, is very little liable to abuse.” Recognizing this rule, courts of some states deny the right of appeal in such proceedings, but the right has been gradually extended by statutes or judicial construction until now, generally, a judgment in contempt can be reviewed either by an appeal or on writ of error. 6 RCL 538, 539, § 51; RCL Perm. Supp. p. 1758.

Proceedings for contempt may be instituted either for the purpose of preserving the power and vindicating the dignity of the court or to enforce the rights of private parties and to compel obedience to lawful orders and, decrees made for that purpose. Such proceedings are of two kinds which have been designated as “criminal contempts” and “civil contempts.” This distinction, is clearly stated in Re Nevitt (CCA) 117 F. 448, 458: “Proceedings for contempts are of two classes—those prosecuted to preserve the power and vindicate the dignity of the courts, and to punish for disobedience of their orders, and those instituted to preserve and enforce the rights of private parties to suits, and to compel obedience to orders and decrees made to enforce the rights and administer the remedies to which the court has found them to be entitled. The former are criminal and punitive in their nature, and the government, the courts, and the people are interested in their prosecution. The latter are civil, remedial, and coercive in their nature, and the parties chiefly in interest in their conduct and prosecution are the individuals whose private rights and remedies they were instituted to protect or enforce. Thompson v. Railroad Co., 48 N.J. Eq. 105, 108, 21 A. 182; Hendryx v. Fitzpatrick (CC) 19 F. 810; Ex parte Culliford, 8 Barn. & C. 220; Rex v. Edwards, 9 Barn. & C. 652; People v. Court of Oyer & Terminer, 101 NY 245, 247, 54 Am. Rep. 691; Phillips v. Welch, 11 Nev. 187, 190; State v. Knight, 513, 54 N.W. 412, 44 AmStRep 809; People v. McKane, 78 Hun, 154, 160, 28 NYS 981; 4 Bl. Comm. 285; 7 Am. & Eng. Enc. Law, 68. A criminal contempt involves no element of personal injury. It is directed against the power and dignity of the court, and private parties have little if any interest in the proceedings for its punishment. But if the contempt consists in the refusal of a party or a person to do an act which the court has ordered him to do for the benefit or the advantage of a party to a suit or action pending before it, and he is committed until he complies with the order, the commitment is in the nature of an execution to enforce the judgment of the court, and the party in whose favor that judgment was rendered is the real party in interest in the proceedings,” In the case of State v. Knight, 413, 44 AmStRep 809, cited by Judge Sanborn in Re Nevitt, supra, this court said:

“If the contempt consists in the refusal of a party to do something which he is ordered to do for the benefit or advantage of the opposite party, the process is civil, and he stands committed till he complies with the order. The order in such a case is not in the nature of a punishment, but is coersive, to compel him to act in accordance with the order of the court. If, on the other hand, the contempt consists in the doing of a forbidden act, injurious to the opposite party, the process is criminal, and conviction is followed by fine or imprisonment, or both; and this is by way of punishment. In one case the private party is interested in the enforcement of the order, and, the moment he is satisfied, the imprisonment ceases. On the other hand, the state alone is interested in the enforcement of the penalty, it being a punishment which operates in terrorem, and by that means has a tendency to prevent a repetition of the offense in other similar cases.

In Bessette v. W.B. Conkey Co., 24 SCt 665, 667, 48 LEd 997, the court, after quoting with approval the above statement from Re Nevitt, supra, distinguishing the two kinds of contempt and stating that “doubtless the distinction, referred to in this quotation is the cause of the difference in the rulings of various state courts as to the right of review,” discusses the distinguishing features of the two kinds of contempts:

“A contempt proceeding is sui generis. It is criminal in its nature, in that the party is charged with doing something forbidden, and, if found guilty, is punished. ... Manifestly, if one inside of a court room disturbs the order of proceedings, or is guilty of personal misconduct in the presence of the court, such action may properly be regarded as a contempt of court; yet it is not misconduct in which any individual suitor is specially interested. It is more like an ordinary crime which affects the public at large, and the criminal nature of the act is the dominant feature. On the other hand, if, in the progress of a suit, a party is ordered by the court to abstain from some action which is injurious to the rights of the adverse party, and he disobeys that order, he may also be guilty of contempt, but the personal injury to the party in whose favor the court has made the order gives a remedial character to the contempt proceeding. The punishment is to secure to the adverse party the right which the court has awarded to him. He is the one primarily interested, and if it should turn out, on appeal from the final decree in the case, that the original order was erroneous, there would, in most cases, be great propriety in setting aside the punishment which was imposed for disobeying an order to which the adverse party was not entitled. It may not be always easy to classify a particular act as belonging to either one of these two classes. It may partake of the characteristics of both. A significant and generally determined feature is that the act is by one party to a suit in disobedience of a special order made in behalf of the other. Yet sometimes the disobedience may be of such a character and in such a manner as to indicate a contempt of the court rather than a disregard of the rights of the adverse party. In the case at bar the controversy between the parties to the suit was settled by...