The news & observer. [volume] (Raleigh, N.C.) 1894-current, 1905-09-06

| Supreme Court in In re Moore, g.
397, that the act of 1869 had by inn
plication repealed the common law
the disbarment of Bggs-Ex Parte
BiggS, 64-202, by the notorious Jay
bird Jone and the resulting amend
ment to the act in 1871, which repeal
ed the common law right of attach
ment for contempt unequivocally and
in terms. The statutes passed. he
claimed, were not intended to protect
the person of the Judge but only to
protect the court in the performance
of its duties and to insure the orderly
course of its proceedings.
The test established by the statutes,
said Major Guthrie, was what the
Judge was doing at the time the acts
complained of were committed; if he
was not sitting as Court, there was
no contempt There was not a word
or a clause of those acts which would
not fit that test.
In support of such construction
Major Guthrie cited IIx Parte Schcncl<
$3.50, and In re Oldham, 1929,
dwelling on the statement in the
opinion in Schenck's case that "all in
herent powers are preserved in the
act" and upon the fact that in both
cases the act is declared not to be
unconstitutional. His client now oc-
cupied, said he, the same position as
that taken by Mr.<Moore when he con
tended that the act of 1869 had repeal
ed the common law by implication
with this strong addition in his favor
that the act of 1871 positively repealed
it in subsection 8 of section GAS of The
Code in which it is stated in terms
that the acts therein set forth shall be
the only acts which shall be the sub
Ject of contempt proceedings; and that
any part of the common law then in
force recognizing other acts was
thereby repealed.
In support of this contention Major
Guthrie also cited In re Gorham. 1923
in which the cases of Moore, Biggs,
SchenCk and Oldham are cited and ap-
proved in their finding of the consti-
tutionality Of tia statutes.
Power Beyond Legislation, Says
Brooks.
Replying to Major Guthrie Solici-
tor Brooks stated in the outset that
the matter was one of the gravest m
portance, since it affected the very
fountain of justice and the integrity Of
the Courts; it was also the more Seri-
Gus because the counsel for the State
recognized that there was a doubt as
to the meaning of the statutes. He
would prefer, said he to see the Court
put it's decision on a higher plane than
a mere construction of a statute and
place it's reasoning on the high ground
of the inherent rights appertaining to
the courts regardless of legislation. Re
ferring to the history detailed by Maj.
Guthrie of the causes leading up to
the passage of the acts attempting to
limit the cases constituting contempt,
he stated that a calm perusal of the
times discloses little of credit to either
side of the political controversy then
raging: on the one hand there was d
desire to unjustly curtail and limit the
powers of the courts, on the other Il
willingness to yield.
Taking up the case of In re GOrham
relied upon by petitioner, Mr. Brooks
laid stress on the cOncurring opinion
of Chief Justice Clark i'm that case in
which it is said: eff the court can
seriously question the power of the
Legislature tax an emigrant
agent it can surely call in qucS-
ton the construction of any act which
would deprive this department of it's
right to administer justice without be-
ing hindered by bribery and fraud. 1t
is clearly stated by Smith, G. j., in
re Oldham that an act having such
effect would be invalid"
That, he claimed, was n clear init
nation of what the policy of the cour t
would be if it's powers should be too
seriously interfered with.
Mr.. Brooks then read the statutes
on contempt and stated that there was
ground for believing that subsection
three-"Any breach of the peace. noise
or other disturbance directly tending
to interrupt the proceedings of any
court" might be construed to include
an act of gross disreSpect like that of
q personal assault, but he at once took
up the discussion of the broader prin-
ciple of the inherent power of the
court to protect itself, citing in re Ma
gle. the case in which one Terry was
shot and killed by a Deputy Marshal
for assautng Justice Field while the
latter was breakfasting at a railroad
station on his way to California. From
this case ne quoted the opinion that
there is a peace of the United States.
A man assaulting the judge assaults
the peace. A deputy marshal occupies
towards the judge the same position
that a sheriff occupies towards the
peace of the State Of California"
Courts of an inferior grade got their
powers from legislation: Superior
courts from the constitution. Any at
tempt at legislation to limit the pow
er of these courts to protec themselves
is unconstitutional. In Bradley vs..
State from Georgia, so l.. A. A., 692,
it is held that Superior courts are in
dependent of the Legislature. The lat
ter may fix a maximum punishment
but has not the power to say to what
cases the courts may be restricted.
There were only three cases. said
Mr. Brooks, which he had been able
to find dealing with an actual assault
on the Judge. one an old Virginia case,
the Terry case and a case from Ala
bama. Although the State was not
making the point that the court was in
session, it was held in the Terry case
that a judge when travelling was as
much in the performance of his duty
as though he were actually sitting in
a court room.
Commonwealth VS. Dandridge, Va.
Cases, 400 was directly in point, the
judge having been assaulted after leav-
ing the court. 1t was held that the
power to punish for contempt was in
herent, the court stating that the deli
cacy of the situation was realized, ex-
posing them to the charge ether of
timidity and irresolution, or usurpa-
tion and tyranny.
He also cited the case of Elk Parte
McClOud, 100 Fed. Reporter, 1871.
In concluding eloquently Solicitor
Brooks stated that this was a grave
matter which should be settled and
settled right 1t would be a sad day
and q shocking awakening TO the peO