Toledo Newspaper Co. v. United States

delivered the opinion of the court.

This case is before us on error to review the action of the court below affirming a judgment of the trial court holding the. defendants guilty of a summary contempt and imposing a fine upon them both. There is also pending an application for certiorari made upon the assumption that if jurisdiction on error was wanting the case involved questions of such importance as to justify our interposition.

We are of opinion that a motion to dismiss the writ of. error must prevail since it is settled that a conviction for a criminal, although summary, contempt is-for the purposes of our reviewing power a matter of criminal law not within our jurisdiction on error. Cary Manufacturing Co. v. Acme Flexible Clasp Co., 187 U. S. 427 , 428; O’Neal v. United States, 190 U. S. 36 , 38; Bessette v. W.

The case is this. The Toledo Railways and Light Company in 1913 controlled and operated practically all the street railways in Toledo. The franchises under which it did so, however, it was generally considered, expired on the 27th of March, 1914. In anticipation of this fact, negotiations as to the terms upon which, they should be renewed were broached between the city and the company, and pronounced differences were manifested. This gave rise to public agitation and discussion over the question • which had become acute in November, 1913.- In that month, evidently in order to enable the city to secure from the company such terms of agreement as it might impose, an ordinance was passed, without giving any new franchise or in terms making any new contract with the company, providing that after the 27th of March, 1914, the assumed day of the expiration of the franchises, three-cent fares should be charged from day to day. Complaint, alleging the injustice of this provision and the wrong which the railroad asserted would be produced by giving it effect, increased the agitation.

In January, 1914, creditors of the company filed in the District Court of the United States their bill against the company to enjoin it from obeying the ordinance on .the ground that to do so would confiscate the property which they held in the company and would destroy the franchises which the. company enjoyed and which, it was asserted, only expired in the following October. On March 24th

At this juncture and before action had been taken by the court, The Toledo News-Bee, a daily paper, published in Toledo by The Toledo Newspaper Company, began publications adverse to the rights asserted against the city by the creditors and the railway company and in no uncertain terms avouched the right of the city to have enacted the ordinance, which the suits assailed and challenged the right of the court to grant the relief prayed. On March 30th the court, after hearing on the applications for preliminary injunctions, denied them on the ground that the assailed ordinance was not self-énforcing, that it required an application of judicial power to put it into effect and that it would be time enough when the city invoked such relief by such power to assert by way of defense the matters which were made the basis of the prayer for affirmative relief in the pending controversies.

In September following, under a new prayer, the court reconsidered its action and awarded the preliminary injunction prayed on the ground that as the city had in the meanwhile treated the ordinance as enforcible without resort to judicial process and was acting against the company and the creditors and their alleged rights on that assumption, the duty was cast upon the court of protecting such rights pending the decision of the causes. In the meanwhile, however, the agitation over the questions which the suits involved had unremittingly continued and was beyond doubt fanned by continuous publications on the subject in the stated newspaper into a more exaggerated — not to use a stronger word — and

Immediatély preceding the action of the court taken on September 12th granting the preliminary injunction, and while that subject was before it for consideration, an attachment for contempt was issued against. one Quinlivan for words spoken by him at a meeting of a labor union concerning the court and the matter which it was then engaged in considering. And a few days following, on September 15th, a similar process was issued against the managing editor of the Toledo News-Bee for publications written by him in the paper concerning the action of the court in the Quinlivan case.

On September 29th following, the court directed the district attorney to present an information for contempt against the newspaper company and its editor for the publications which had been made concerning the con-, troversy, and on October 28tb, giving effect to this order, an information was filed charging the newspaper company and the editor with contempt. The charges were stated in three counts. The first embraced matters published during the pendency of the suit from the time, March 24th, when the action was taken to make the city a party and the respective preliminary injunctions were prayed, up to and including the time when the ultimate action of the court on the subject in September was taken. The two other counts related, the one to publications made at/the time of and concerning the attachment for contempt against Quinlivan, and the other to publications concerning the attachment against the managing editor. The defendants demurred on the ground that the information stated no act within the power of the court to

Coming to dispose of the information, the court found both of the defendants guilty under all the counts and imposed upon both a punishment by way of fine. The court sustained its authority to so act by an elaborate opinion which, after stating the evidentiary facts — the publications and their environment — , drew from them ultimate conclusions of fact and held that from such conclusions it clearly resulted that the publications complained of constituted a contempt within the power of the court to punish, because, by their terms, they manifestly tended to interfere with and obstruct the court in the discharge of its duty in a matter pending before it. Condensing for the sake of brevity and looking at the substance of things, these conclusions of the court embraced four grounds: (a) Because, leaving aside the attempted ridicule, not to say vituperation, concerning the court which was expressly or impliedly contained in the publications, their manifest purpose was to create the impression on the mind of the court that it could not decide in the matter before it in any but the one way without giving rise to such a state of suspicion as to the integrity or fairness of its purpose and motives as might engender a shrinking from so doing, (b) Because the publications directly tended to incite to such a condition of the public mind as would leave no room for doubt that if' the court, acting according to its convictions, awarded relief, it would be subject to such odium and hatred as to restrain it from doing so. (c) . Because the publications also obviously were intended to produce the impression that any order which might be rendered by the court in the discharge of its duty, if not in accord with the con

The affirmance by the court below of the action of the trial court thus stated, is the matter now before us for review. That court, not asserting the right or attempting to exert the power to review the merely evidentiary facts found by the trial court, but accepting them, in express terms sanctioned the inférences .of ultimate fact drawn from them by the trial court. The court said: “The publications had reference to pending judicial action, and there is a finding of fact (‘as alleged in the information’) that they tended and were intended to provoke public resistance to an injunctional order, if one should be made, and there is a finding that they constituted an attempt to intimidate, — at least unduly to influence, — the district judge with reference to his decision in the matter pending before him.. That each of these findings is supported by competent evidence and for that reason binding upon this court is too clear for dispute; but we may rightly go further and say that it is difficult to see how any other findings could have been made.” This view, however, was restricted to the matters embraced by the first count, since it was decided that it was irrelevant to Consider whether the same view would obtain as to the subject-matters of the second and third counts because it was held that in any event the finding of guilt under the first

Under the case and the action of the courts below concerning it, nothing further would seem to be required to establish the correctness of that action, since no other course, under the statement, is possible compatibly with the sacred obligation of courts to preserve their right to discharge their duties free from unlawful and unworthy influences and, in doing so, if need be, to clear from the pathway leading to the performance of this great duty all unwarranted attempts to pervert, obstruct or distort judgment. Nevertheless, in view of the gravity of the subject, we proceed to consider and dispose of the elaborate arguments pressed to the contrary. They are all embraced by the three following propositions: first, that there was a total want of power in the court to treat the matters charged in the information as a contempt and punish it accordingly, as a result of the provisions of § 268 of the Judicial Code (embodying the text of the Act of March 2, 1831, 4 Stát. 487 ); second, that, irrespective of the prohibitions of that act, there was a want of power to abridge the freedom of the press by punishing as for a summary contempt comments made by a newspaper upon matters of public concern; and third, that, whatever be the view of the two former propositions, as there was an entire absence of proof sustaining the ultimate inferences of fact upon which the court based its conclusion, such conclusion was wholly erroneous as a matter of law. We dispose of these propositions under separate headings.

1.- Section 268 of the Judicial Code and its forerunner, the Act of 1881.

It is. essential to recall the situation existing at the time of the adoption of the Act of 1831 in order to eluci-. date its provisions. In Marshall v. Gordon, 243 U. S. 521 , the power of Congress to summarily punish for contempt

The pertinent provision of § 268 of the Judicial Code is as follows: “The said courts [United States courts] shall have power .. . . to punish, by fine or imprisonment, at the discretion of the court, contempts of their authority: Provided, That such power to punish for contempts shall not be construed to extend to any cases except the misbehavior of any person in their presence, or so near thereto as to obstruct the administration of justice . . ..”

Clarified by the matters expounded and ¡ the ruling made in the Marshall Case, there can be no doubt that the provision conferred no power not already granted and imposed no limitations not already existing. In, other words, it served but to plainly mark the boundaries of the existing authority resulting from and controlled by the grants which the Constitution made and the limitations which it imposed. And this is not at all modified

2. The asserted inapplicability of the statute - under the assumption that the publications complained of related to a matter of public concern and were safeguarded from being made the basis of contempt proceedings by the assuredly secured freedom of the press.

We might well pass the proposition by because to state it is to answer it, since it involves in its very statement the contention that the freedom of the press is the freedom to do wrong with impunity and implies the right to frustrate and defeat the discharge of those governmental duties upon the performance of which the freedom of all, including that of the press, depends. The safeguarding and fructification of free and constitutional institutions is the very basis and mainstay upon which the freedom of the press rests, and that freedom, therefore, does not and cannot be held to include the right virtually to destroy such institutions. It suffices to say that, however com

The contention So earnestly pressed, that the express provision, found in a statute enacted in Pennsylvania in 1809, following impeachment proceedings against certain judges of that State and dealing with the extent of the power to base a contempt proceeding- upon a newspaper publication, should be by implication read into the Act of 1831 and-by filtration implied in §J268, Judicial Code, we' think is answered by its mere statement, since, if it be conceded for argument’s sake only that the provision in the Pennsylvania statute relied upon had the significance now' attributed to it and that the Pennsylvania statute was the model of the Act of 1831, the omission from that act of the provision referred to as it existed in the Pennsylvania law is the strongest possible evidence of the purpose not to enact such provision. And thus we come to the third and final subject, which is:

3. The contention that there was no evidence whatever to justify attributing to the publications the consequence of obstruction and therefore no legal basis for the conclusion of guilt and resulting right to impose penalties.

It is to be observed that our power in disposing of this objection is not to test divergent contentions as to the weight of the evidence but simply to consider the legal question whether the evidentiary facts found had any reasonable tendency to sustain the general conclusions of fact based upon them by the courts below. Considering the subject in this aspect, again we are constrained to say that the contention on the face of the record is too plainly devoid of merit to require any detailed review. Indeed^ we are of opinion that the court below was right in saying concerning the ultimate conclusions of fact upon which its action was based that it was “difficult

This disposes of the case, for although the court below, we think mistakenly, considered that it was not under the duty to determine how far the facts sustained the charges under counts 2 and 3 because the conviction might be referred wholly to the first count (Gompers v. Bucks Stove & Range Co., 221 U. S. 418 , 440), we are of opinion, after examining the facts as to both of

Affirmed.

Mr. Justice Day and Mr. Justice Claeke took no part in the decision of this cause.

Me. Justice Holmes, dissenting.

One of the usual controversies between a street railroad and the city that it served had been going on for years and1 had culminated in an ordinance establishing three cent fares that was to go into.effect on March 28th, 1914. In January of that year the people who were operating the road began a suit for an injunction on the ground that the ordinance was- confiscatory. The plaintiffs in error, a newspaper and its editor, had long been on the popular side and had furnished news .and comment to sustain it; and when, on March 24, a motion was máde for a temporary injunction in the,suit, they published a cartoon representing the road as a moribund man in bed with its friends at the bedside and one of them - saying “Guess we’d better call in Doc Killits.” Thereafter pending the controversy they published news, comment and cartoons as before. The injunction was issued on September 12. The Judge- (Killits) who was referred to took no steps .until September 29, when he directed an information to be filed covering publications from March 24 through September 17. This was done on October 28. In December the case was tried summarily without a jury by the judge who thought his authority contemned, and in the following year he imposed a' considerable fine. The question is whether he acted within his powers under the statutes of the United States.

The statute in force at the time of the alleged contempts confined the power of Courts in cases.-of this sort to where

But suppose that an imminent possibility of obstruction is sufficient. Still I think that only immediate and necessary action is contemplated, and'that no case for sum

The chief thing done was to print statements of a widespread public intent to board the cars and refuse to pay more than tliree cents even if the judge condemned the ordinance, statements, favoring the course, if you like, and mentio.n of the city officials who intended to back it up. This popular movement was met on the part of the railroad by directing its conductors not to accept three cent fares but to carry passengers free who refused to pay more; so that all danger of violence on that score was-avoided, even if it wás a danger that in any way concerned the Court: The newspaper further gave one or two premature but Ultimately correct intimations of what the judge was going to do, made one mistaken statement of a. ruling which it criticised indirectly, uttered a few expressions that implied that the judge did not have the-last word and that no doubt contained innuendoes not flattering to his personality. Later there was an account

In the elaborate opinion that was delivered by Judge Killits to justify the judgment it is said “In this matter the record shows that the court endured the News-Bee’s attacks upon suitors before it and upon the court itself, and carried all the embarrassment inevitable from these publications, for nearly six months before moving to vindicate its independence.” It appears to me that this statement is enough to show that there was no emergency, that there was nothing that warranted a finding that the administration of justice was obstructed, or a resort to this summary proceeding, but that on the contrary when the matter was over, the judge thought that the “consistently unfriendly attitude against the court,”.and the fact that the publications tended “ to arouse distrust and dislike of the court,” were sufficient to justify this information and a heavy fine. They may have been, but not, I think, in this form of trial. I would go as far as any man in favor of the sharpest and most summary enforcement of order in Court and obedience to decrees, but when there is no need for immediate action contempts are like any other breach of law and should be dealt with as the law

Mr. Justice Brandéis concurs in this opinion.