The Helena independent. [volume] (Helena, Mont.) 1875-1943, 1891-08-11
Tho Right Of Freedom OF Speech
and Press Defined by the
Supreme Court.
Courts Are Not Given the Power
to Enforce Sentimental
Respect.
Niinah Consolidated Wins Its Case Against
j. O. Briscoe - CoqUard's Suit
Against the WestGranite.

For this Judge Mcf1attou causea ths "rHes'
of MacKnight and others connected with
the Journal on a charge of contempt. In
the proceedings which followed, Mao.
knight refused to state the names of parties
who made the comments recited ia tho pub
licstion, and for such refusal Judge Nc
Hatton committed him to Jail, and Mac
knight appealed to tho supreme court for
discharge from imprisonment. The opin-
ion Of the court on the merits of the case is
~ follows,
Returning to the consideration of the
merits of the proceedings under review, We
find counsel for the prisoner challenging
the legality of the imprisonment by two
proportions: First. that if q contempt was
committed by such publication. rs charged.
then the contempt was committed by that
act, and relevant inquiry ceased when it
was ascertained who was the author and
publisher; that the prisoner admitted the
writing and publishing of the comments as
charged, and any inquiry beyond that was
irrevelant and illegal; that refusal to an
swer such irrevelant questions was a legal
right of witness, and commitment for such
refusal was unlawful.
Secondly, that in the main proceedings
the matter charged, to-wit: the writing and
publishing of the matter set forth, did not
In law amount to a contempt of court, and
therefore the court was proceeding without
Jurisdiction, and all questions pertaining to
the matter, in such proceedings were IL
r~evslant and unauthorized, and the witness
had a legal right to respectfully decline to
answer any or all questions in a case where
the court was without jurisdiction.
w are of the opinion that in this case
Tho law frliv ScStQJna both prnn0GYtinr4 in
favor of the prisoner. As to the first propo-
sition tho record shows that the prisoner
appeared before the court and admitted
every fact charged as constituting the con-
tempt. What fact, there was in the charge
not admitted. or what relevancy there WAS
in the questions which the prisoner refused
to answer, the counsel who acted as a,nicus
curias was unable to explain, and we have
been unable to ascertain. 1t is provided in
sections $50 and $50. code of civil pro-
cedure, that witnesses shall answer ques-
tons legal and pertinent to the matter in
issue. They are not bound to answer ques-
tons irrevelent to the issue. (E1 pArte
Z~eehandelaar II Cal. 1887. After the pris-
onsr had admitted the facts set forth in
the charge as constituting contempt, if
then an inquiry, as the facts outside of that
charge was necessary to establish a con-
tempt. it follows that no contempt was
charged in the proceeding.
But suppose the prisoner had answered
the question put TO him, and said that A
made the remarks about the political sit
uation in Silver Bow county, Would the
offsnse charged. to-wit: the publication of
said remarks, been any more certain, or
would the gravity of the offense been any
greater or less than it would have been If
B had made those remarks? Suppose
again. the prisoner had answered that A
made the remarks, and A had been called
and questioned, and said that he got the
idea from B; and B had been sent for, and
testified that he got the matter from c, and
SO on ad intnitun, how much would this
have added to, or subtracted from, the Of
fense charged against Mcknight, or the
punishment due therefore,? 1t Is not I'M
likely comments were made ia reference to
the application for change of venue men
toned in the article. Parties on one
side of the motion were insisting that the
people OF Silver Soy county, for various
reasons, had become biased or prepossessed
with one view of the contest. II was also
suggested and attempted to be shown that
the judge of the lower court was biased and
prejudiced. The motion was brought be.
fore this supreme court, and these PROPOSE
tiens as to bias and prejudice were uttered,
published. commented Upon and considered.
Now. are the parties who entertained and
EXPRESSED the views, that bias and prejudice
existed, in peril of the Jail Of Silver Bow
county.
"The main charge preferred against the
prisoner is not within the acts defined by
statute as contempts. Nor is it within the
general definitions of that offense as found
in the authorities upon this subject. The
principal ingredient of the definition
of contempt is disregard Of the authority
of the court. 1t ia provided in
our statute that certain acts or omissions
described are contempt of the authority of
the court: First-Disorderly, c%ontemptu-
GUS or insolent behavior toward the Judge
while bnlHlnp rourf fanHJnn to jptarrunt
the due course of q trial or other judicial
proceeding. Second-A breach of peace,
boist erons conduct or violent disturbance,
tending to interrupt the due course of the
trial or other judicial p~rocesding.' Code
G. p, sec. 5S4.) Definitions of contempt
found in works OF authority are as foIlows:
"A willful disregard or dieohedience OF a
public authority (Bouvier' Law Diotion-
ary.) 'Disrespect, wiliful disregard Of the
authority OF a court or ~legislature.' CAN
dorson's Law D~ictionnry.) Contempt is
dlsordetly or insolent language or behavior
in the presence of a legislature or judicial
body, tending to disturb it's proceedings or
impair the respect due to its authority;
or a cisobedience to the rules
or orders OF such a body. which
interferes with the due administration of
law % American and English encyclopb-
dia of law III. Mr.. Bishop, in his work
on criminal law, introduces this subject
with the following declarations: No court
of Justice could accomplish the objects O
Its existence unless it could in some way
preserve order, and enforce it's mandate
and DEGREES. The ommon method of do
ing these things is by process of contemut
q Bishop Criminal Law, section 2l3)
Counsel cites IN support of the proceedings
the law az laid down by Blackstone. Thu
eminent commentator on the laws of Eng
land gave his works To the world, man
years before tho adoption of the coastitu.
ton of the United States at a time when
censorship of the press was thought to be-
proper office of government. 1t is wei
known that in his time tho Eng
llah courts assumed a much wide
score on the subject of applying the process
OF contempt to restrict the freedom o
speech and publication, than in more 70
cent times. And yet this proceeding can
not be supported by citations from Black
stone, without culiing from his text til
most general observations. The case OF
territory VS.. Murray Il Mont. BED is cite,
an support of this proceeding. That case
we think, has no application TO the case Il
bar. The offender IN that case was a suite
before the court; he concocted Il scheme
and invented a fictitious set of facts in re
latloh to the very ease under al adjudication
In which he was Il party. He caused to b
telegraphed a statement OF the ~tictitiou
ana alleged events, which he had ~coniure,
into apparent existence; and caused tn
same to be published so as to get 1t com
municated to the attention of the court
aud was clear that he did all this to caus
an impression upon the mind of the cour,
which he Thought would work to his bene
ff IN tina llGlpa11nn whaF.fn he ir,n.