Albuquerque morning journal. [volume] (Albuquerque, N.M.) 1903-1926, 1922-01-04

~ N4ilO NOuht Va UNIV ISdulIIItLeu
Mr.. Thatcher:
ut is brought to our attention
that pending this writ of error,
the supreme court of Ohio has
readmitted Mr.. Thatcher. That
has no bearing here. If in due
time an application is made in the
district court for Mr.. Thatcher's
readmission, that court will give
such force to the state courts
action as may be thought proper.
And the order below is affirm
ed without costs" (Thatcher, v.
U. S. 212 Fed, SO1).
Your humble servant recalls the
time when in his judgment, it be-
came his duty to make charges
against a judge In New Mexico,
and the then president of the
United States, Mr.. Roosevelt, re-
moved this judge by telegraph
after the then attorney general
had satisfied himself that my
charges were we'll founded. Dur
ing my absence in Washington
presenting these charges, q num-
Der of members Of the bar sought
to discredit me and the charges
and certified to the high char
acter. legal ability, and impartial
ity of this judge, but fortunately
for me in the light of the Thatch-
er case, my representations pre-
vailed in Washington, and / was
permitted to retain my standing
at the bar while this judge lost his
commission.
One other case and I shall close.
In the case Of state ex rel, At
torney General v. Circuit Court,
(97 Wis. - / take this statement
OF facts from the official report.
Delivering the opinion of the
court in which apparently the
court was unanimous, Mr.. Justice
Winslow said:
THE questions involved upon
which all mino1 questions depend
are but two in number: First,
did the publications in question
constitute criminal contempt of
court? and, second, Is the writ of
prohibition the proper remedy?
l. Did the publication con-
stitute criminal contempt of
court? In considering this ques-
ton it has not been deemed
necessary to reproduce the articles
in this opinion, 1t is sufficient
to say of them, that, among other
things, they charged Judge Bailey
with having been Intentionally
partial and corrupt in the trial of
certain causes in his court. II the
charges were true, the unfitness
of Judge Bailey for his office was
certain. That they were intem-
perate in tone, and we'll calculated
to eXasperate their subject may
be at once admitted. 1t seems
probable also that from their very
intemperance they were rather
calculated to injure the cause
which they were designed to help
than otherwise. These questions
are, however. foreign to the pres
ent inquiry; the question being,
not whether Judge Bailey as an
individual was grossly slandercd,
but whether a criminal contempt
or court was committed. .
important as it is that courts
should perform their grave public
duties unimpeded and unprecedented
by illegitimate influences, there are
other rights guaranteed to all citi-
Gems by our constitution and form
of government, either expressly or
impliedly, which are fully as i'm
portant, and which must be guard
ed with an equally jealous care.
These rights are the right of free
speech and of free publication Of
the citizens sentiments 'on all sub
jects' Cart. l, Amendm. Const. of
u. s.; Const. Wis. art. /, sec. 81;
also the right to freely discuss the
merits and qualifications of can
didate for public office, being re-
sponsible for the abuse OF such
right in proper action at law. In
the present case 1t is Of the utmost
Importance to bear in mind that
Judge Bailey was candidate be-
fore the people for reelection. Had
he been a candidate for any other
office, it would not be contended by
any one that the publications in
question would afford ground for
other legal action than an action
for libel in the regular course of the
law; but the claim is that because
he was a judge, and was holding
court at that time, such unfavor-
able criticism of his past actions
may be summarily punished by the
judge himself as for contempt.
Truly, it must be a grievous and
weighty necessity which will justify
so arbitrary proceeding, whereby
a candidate for office becomes the
accuser, judge, and jury, and may
within O few hours summarily pun
ish his critic by Imprisonment. The
result of such a doctrine is that all
unfavorable criticism of a sitting
judges past official action can be at
once stopped by the judge himself,
or, if not stopped, can be punished
by immediate imprisonment. II
there can be any more effectual
way to gag the press, and subvert
freedom of speech, we do not know
where to find it. Under such a rule
the merits of a sitting Judge may
be rehearsed, but as to his dement's
there must be profound silence.
IN OUR JUDGMENT, NO SUCH
DIVINITY AS THIS DOTH
HEDGE ABOUT A JUDGE; GER
TAINLY NOT WHEN HE is A
CANDIDATE FOR PUBLIC Of
FTCE." cd. 12-13).
Recurring to the question with
which the discussion opened, name
ly, Is it necessary that a court
should possess this power? we feel
bound to hold that, considering the
guaranteed rights of the citizen
Just referred to, no such power as
this is necessary for the due ad-
ministration of Justice. 1t may be
freely admitted that under the
common law as administered In
England the mere writing con-
temptuously of superior court or
Judge has been declared a con-
structive contempt. Bl. Comm
| 1856. We, however, adopted ne
part of the common law which wa
inconsistent with our constitution
(Const. Wis. art. XIV, sec. 13), and
IT seems clear to us that so extreme
power is inconsistent with, and
would materially impair, the con.
stitutionai rights OF free speech ano
free press" Our conclusion
Is that the attempt to punish tho
publication in question as for con
tempt was in excess of the 1uris'
diction of the circuit court.
But another claim was made by