HARRISON, J., dissenting. Section 1209 of the Code of Civil Procedure declares that any unlawful interference with the proceedings of a court is a contempt of the authority of the court; and when facts are presented to the court which could under any circumstances have interfered with its proceedings [423]in the trial of a cause, it has jurisdiction to investigate the charge of contempt.
Ho question as to the general power of the court is presented in the present case. Its jurisdiction to investigate a charge of contempt is not denied. Whether it had jurisdiction to investigate the charge against the petitioner does not depend upon any review of evidence, but is to be determined by the sufficiency of the affidavit upon which the citation to him was issued. If the facts set forth in that affidavit are sustained, its power to punish for the contempt therein charged follows as a legal conclusion. That the affidavit of Mr. Jones sets forth facts sufficient to give to the court jurisdiction to inquire into the alleged contempt, and to determine whether the acts charged against the petitioner had been committed by him, cannot be questioned, and the regularity of the procedure by which he was brought before the court is not challenged. The court, therefore, had jurisdiction to investigate the charge, and, after its jurisdiction had been thus acquired, any error by it in the course of the inquiry, either in admitting or in excluding evidence, is not the subject of review in this proceeding; and its finding of the facts upon which it based its judgment that the petitioner was guilty of contempt is also final.
It is claimed, however, by the petitioner, that the court had no jurisdiction to punish him for the contempt charged without giving him an opportunity to be heard in his defense; and that inasmuch as it refused to receive evidence which he offered at the hearing in support of certain matters which he had set up in his answer as a defense to the charge, and refused to consider these matters, it exceeded its jurisdiction in determining that he was guilty of the contempt charged in the affidavit. The right of one charged with contempt to be heard in answer to the charge is fully conceded; but upon this, as upon any other charge, his right to be heard is limited to matters that are pertinent to the issue before the court. If he is allowed a hearing upon these matters, he cannot say that he is deprived of his rights without due process of law. The provision in section 1217 of the Code of Civil Procedure that the court or judge must “investigate the charge, and must hear any answer which the person arrested may make to the same, and may examine witnesses [424]for or against him,” does not require the court to hear an answer whose allegations have no tendency to exonerate the person from the charge, or to permit an examination of witnesses upon matters that are not relevant to the alleged contempt. The court is to conduct the investigation under the sanction of its judicial obligations, but its determination therein will not be set aside upon the ground that it committed error in the course of the investigation. If the court had refused to allow the petitioner to file any answer to the charge, or if, after permitting his answer to be filed, it had ordered it to be stricken from the files, and had refused to receive any evidence on his behalf in defense of the charge, its judgment against him would have been unauthorized. Instead of so doing, however, the court permitted the petitioner to file such answer as he desired, and also heard all the evidence which he chose to offer in support of the matters therein which were material or relevant to the defense.
In his answer the petitioner had alleged that the original publication of the proceedings was a correct statement of the testimony given before the court, and the refusal of the court to allow evidence in support of this averment is claimed by him to have been a denial of the right to be heard in his defense; but the truth or falsity of this publication was not involved in the charge of contempt before the court. The contempt with which the petitioner was charged did not consist in this publication, but in the subsequent effort on his part to compel the court to accept it as the truth in opposition to its own statement that it was not correct. A false publication of the proceedings of a trial does not of itself constitute a contempt,' or render its author liable to punishment. The charge of contempt against the petitioner was the fact that after the court had stated that the testimony contained in that publication had not been given, and while the cause was still in process of trial before it and undetermined, the petitioner had published in his newspaper, in a manner calculated to destroy the freedom of the court in determining the rights of the parties to the controversy then before it for determination, that this judicial declaration was false.
The court, therefore, very properly refused to permit the truth or falsity of the publication to be made an issue of fact [425]in the proceedings upon the charge of contempt; and it also properly denied the offer of the defendant to introduce the evidence given at the trial of the cause of Talmadge v. Talmadge, relating to other matters than those involved in the publication. Such evidence could have no bearing or relevance to the matter then under investigation.
The case of Talmadge v. Talmadge was on trial before the court without a jury. The court was required to make its findings of fact upon the testimony given before it, and to render its judgment in accordance with that testimony. When its attention was drawn to this publication, with a request by one of the attorneys in the case to be informed whether that was the testimony as understood by the court, and it stated from the bench in reply that such testimony had not been given, and that the publication was incorrect, this was a declaration by it that its decision was not in any way to be affected by what was stated in the publication to have been given as testimony in the case. If either of the parties had felt that the court was in error, it would have been proper to point out to it in any competent mode—either by the notes of the stenographer or by the statement of one who had heard it—that such testimony had in fact been given. The court, however, would not have been bound to accept such statement as correct, but would still be compelled to decide the cause upon its own view of what was the testimony therein, leaving it to the defeated party to show in any proper mode that it had decided contrary to the evidence. It is manifest from a mere reading of the article published in the “Bee” that it would naturally tend to interfere with the proceedings of the court in the trial of the cause to which it referred, and that the court was authorized to find that it was an unlawful interference with its proceedings. The evident purpose, as well as the natural tendency, of the article in question was to compel the court to accept the facts given in the previous statement in the “Bee” as the correct version of that portion of the testimony in the case, and was an attempt on the part of the petitioner to coerce the court iuto deciding the cause upon testimony which in its opinion had not been given; and to the extent that this publication might tend to bring about that result, whether it did in fact effect the purpose or not, it was an unlaw[426]ful interference with the proceedings of the court. If the cause had been on trial before a jury, and the petitioner had approached one of the jurors and made the statements contained in the article, it would not be questioned that he would have been guilty of contempt. It is none the less a contempt that the testimony was to be considered by the court instead of by a jury, nor is the act constituting the contempt diminished by the fact that it was published in a newspaper rather than stated orally. It was published with the evident purpose that it should be read, and it was in fact read by the judge while the cause was still pending before him and undetermined.
The defendant also alleged in his answer that the publication set forth in the affidavit of Mr. Jones was published without malice and for the purpose of defending himself against the false charges made against him by the judge, and that he then believed that the original publication contained a correct statement of the evidence in the case. At the hearing, after the court had declined to allow any evidence upon the correctness of the original publication, the defendant proposed to offer proof in support of the several matters contained in his answer. The court gave him permission to show that the publication was made without malice, and that he believed it to be true, and also that he believed that he had a right to publish it, and to state his motive therefor. The court, also stated that, if he could do so, he might show that the original publication was made from a report compiled by a reporter of the “Bee” from the testimony which he had heard in court. The defendant declined to accept these offers, or to introduce any evidence upon these matters, his counsel saying: “We desire to put in our entire defense so that it may all go together.” As the defendant was given an opportunity to present any evidence in his power relevant to the issue or material to his defense, it cannot be said that his trial was had contrary to the law of the land, or that he was convicted without a hearing.
The defendant’s offer to prove by testimony that the publication did not interfere with the proceedings of the court was properly rejected. Whether the publication had such an effect or tendency was a-. question of law depending upon the nature of the publication and the circumstances under which it was [427]made, and was a question of law to be determined by the court, and not upon the testimony of witnesses.
The claim of the petitioner that by the article published he sought to justify himself against the implied charge of willful misrepresentation made by the court when its attention was first drawn to the statement of the testimony, falls to the ground in view of the fact that the court had made no reference to the petitioner, but assumed throughout its remarks that the publication had been made by reason of false and incorrect reports made by some one other than the petitioner. Whatever right the defendant might have to defend himself against what he deemed an unjust aspersion in these remarks of the judge, he had no right to do it in such a way as to interfere with the proceedings of the court. Unless courts axe permitted to administer justice freely, and without being subjected to intimidation or coercion in their deliberations and decisions, they will be powerless to protect those who are injured, or to enforce the rights of those who invoke their aid.
It is contended by the petitioner that by reason of the following provision in section 1209 of the Code of Civil Procedure, as amended in 1891: “But no speech or publication reflecting upon or concerning any court, or any officer thereof, shall be treated or punished as a contempt of such court, unless made in the immediate presence of such court while in session, and in such a manner as to actually interfere with its proceedings,” the court had no authority to adjudge him guilty of contempt. The effect of this provision was considered in Shortridge’s case, 99 Cal. 526, 37 Am. St. Rep. 78, and it was said in that case: “Ho authority has been found which denies the inherent right of a court, in the absence of a limitation placed upon it by the power which created it, to punish as a contempt an act—whether committed in or out of its presence—which tends to impede, embarrass, or obstruct the court in the discharge of its duties. It is a doctrine which is admitted in all its rigor by American courts everywhere, and does not need the support of foreign authorities based upon the fiction that the majesty of the king, represented in the persons of the judges, is always present in the court. .It is founded upon the principle, which is coeval •with the existence of the courts and as necessary as the right of [428]self-protection, that it is a necessary incident to the execution of the powers conferred upon the court, and is necessary to maintain its dignity, if not its very existence. It exists independent of the statute. The legislative department may regulate the procedure and enlarge the power, but it cannot, without trenching upon the constitutional powers of the court and destroying the autonomy of that system of checks and balances which is one of the chief features of our triple department form of government, fetter the power itself.” (See, also, Myers v. State, 46 Ohio St. 473; 15 Am. St. Rep. 638; State v. Frew, 24 W. Va. 416; Ex parte Barry, 85 Cal. 603; 20 Am. St. Rep. 248; People v. Durrant, 116 Cal. 179.)
It is, however, contended by the petitioner that the constitution has conferred upon the legislature the right to thus limit the power of courts to punish for contempt of their authority. This proposition is maintained by the following argument: Section 1 of article XXII of the constitution provides: “That all laws in force at the adoption of this constitution, not inconsistent therewith, shall remain in full force and effect until altered or repealed by the legislature.” The chapter of the Code of Civil Procedure relative to contempts was a law in force at the adoption of the constitution, and, not being inconsistent therewith, was, by virtue of this section, when the people voted for and adopted the constitution, adopted by them as a part and parcel of that instrument, and so continued until changed by legislation; that the amendment of 1891, having been enacted under the power implied in the clause “until altered or repealed by the legislature,” is to be regarded as if the constitution had conferred express power upon the legislature to thus limit the power of the courts to punish for contempt. Xo such effect can be given, however, to the language of this section of the constitution. The legislature derives no greater power of legislation therefrom than is conferred upon it in article IY of the constitution, nor is the judicial department of the state deprived of any of its power by virtue of this section. The purpose and effect of the section was not to change the character of the laws therein referred to, or to give to them any different effect from that which they.previously had, but the section was placed in the constitution for the purpose of avoiding any question of im[429]plied repeal of any existing laws that were not inconsistent with the constitution, or, as is expressed in the preamble to the section, “That no inconvenience may arise from the alterations and amendments in the constitution of this state.”
The order of the superior court should be affirmed and the writ discharged.
Temple, J., and Henshaw, J., concurred in the dissenting opinion.
Rehearing denied.