The Pacific commercial advertiser. [volume] (Honolulu, Hawaiian Islands) 1885-1921, 1891-02-27

seem 10 De SUSTAINED by duUnOrlCy.
But we have statute which, 30
far as we have learned, is peculiar to
this country, and which describes
and enumerates certain acts and Cir
cumstances as contempts and makes
them punishable upon indictment
and conviction by jury and also
summarily. These acts are not CLASH
fed in the statute as direct and con-
structive contempts. Some of these
acts would fall under one head and
some under the other as generally
classified. By our penal law, how
ever, they are all contempts and pun
ishable either summarily or upon in
dictment or in both ways.
The Legislature in enacting the
law of 1883 had in mind, without
doubt, the then recent cases decided
by this Court in which certain pub
locations, avowedly not of the char
acter enumerated in the Penal Code
| as contempts, were construed by the
Court to be contempts, and these the
Legislature declared to be no longer
punishable as such. The first and
third sections of the act of 1888
strengthen this view.
The publication in question de-
clares in substance that certain JUS
tees of this Court now in Office are
guilty of an unexplated crime, and
are therefore unworthy to sit in judg-
ment upon others, thus attacking the
Justices in the exercise of their judi
cial functions. This language fits
exactly the words of the statute. It is
publishing of malicious invectives
against a Court tending to bring
such Court (and) or the administra-
ton of justice into ridicule. con-
tempt, discredit or odium." We
| override the motion to discharge the
Rule.
| Respondent to answer.
Attorney General Peterson for
Rule; CIV. Ashford for Respondent.
Honolulu, Feb. Is, 1891.
DISSENTING OPINION OF M'CULLY, J..
The statute authority for treating
this publication as contempt OF
court is the clause in Section Is Of
Chapter 20 of the Penal Code. Quot
ing from the semi-colon it reads thus t:
"; or by knowingly publishing an
unfair report of the proceedings of a
court, or malicious invectives against
a court or jury or the administration
of justice into ridicule, contempt,
discredit or odium, shall be pun
ished," etc.
It is contended by the Attorney
General and it is the view of the
Court that these words, the latter
part particularly, apply to the article
published by the defendant, in that
it tends to bring the court and the
administration of justice into con-
tempt, etc. But in my view they
cannot be considered to apply to
libelous words published in respect
to the justices of the court charging
them with unftness to hold Office and
try cases, in general way and not
with reference to a pending case.
Bishop on Grim. Law, Sec. 245, Vol.
2, gives this summary of doctrine
According to the general doctrine
any publication, whether by parties
or strangers, which concerns a cause
pending in court, land has tendency
to prejudice the public respecting
its merits and to corrupt the admin
istration of justice, or which reflects
on the tribunal or its proceedings or
on the parties, the jurors, the wit
nesses or the counsel, may be visited
as a contempt" This language is
cited by Lawrence, c., in the PEG
pie VS.. Wilson, ga Ill, p. 213, as the
common law definition. See also
Bishop, Sec. 253 of VOL 2. It is ne
cessary in order to bring the case at
bar within our statute to hold that
it goes beyond the common law doc
trine and beyond the usual statutes
based upon the common law. But
these statutes have never extended
the power of courts and judges in
regard to contempts but have rather
limited power.
In my view the context of our sta
tute does not support construction
that publications charging a general
unfitness or a general corruption OF
the persons holding the judicial
Office can be treated as contempts OF
court. And this view is confirmed
by what have quoted above as the
common law doctrine, for do not
believe that modern statute would
have been allowed to extend a power
somewhat odious. The section Q8)
refers in the beginning to a judge OF
Justice in the lawful exercise of his
judicial functions; every other
clause in it refers to proceedings in
or of a court in pending business
unless the latter part of the clause
first cited and relied upon in this
case can he detached from all the
rest of the section, and it closes by
the proviso that every judicial tri
bunal acting as such, and every
magistrate acting by authority OF
law in a judicial capacity may sum
marily punish for contempt. In the
clause in question the term used is
court Tor jury by which can only be
understood the tribunal and not the
personal judge, and that it is mali
cious invective upon its proceeding
and tending to bring the admins.
tration of justice in case for only
in cases as they occur do courts
administer justice) into contempt
ridicule, discredit or odium. II
would certainly require some ex
plicit distinction from the other pro-
visions of the section in which it is
incorporated to show that it intends
distinct province of contempt.
This article refers to no case and
to no court in the exercise of its
judicial functions.
February rs, 1891.