
    OBSTRUCTION OF THE ADMINISTRATION OF JUSTICE BY SCURRILOUS NEWSPAPER PUBLICATIONS.
    Common Pleas Court of Montgomery County.
    The State of Ohio v. James M. Cox and George F. Burba.
    Decided, January 26, 1911.
    
      Contempt of Court — Proceedings Against a Newspaper Publisher amd Editor — Jurisdiction of the Trial Court in Contempt Proceedings— Where the Case Commented Upon Had Gone to Judgment Before the Integrity of the Court was Impugned — Circumstances Which Purge a Publisher from Contempt — Pending Cases — Appeal Before Overruling of Motion for New Trial — Contempts Under the Common and the Statute Law — Section 12186.
    
    1. Proceedings in contempt will not lie against tbe publisher of a newspaper, where it appears from the evidence that the article complained of was published at a time when he was in another city, and that he neither wrote the article, or inspired its publication, or consented to or approved it.
    2. Where the common pleas court has held that a cause under consideration is an equitable one, other common pleas judges will adhere to that ruling when subsequently called in to sit in a proceeding in contempt growing out of the action of the accused in the same cause.
    3. The judgment of the court having been rendered and an appeal taken and bond executed before the publication was made, it can not be assumed that the court in subsequently announcing the formal overruling of the motion for a new trial and ordering an entry made to that effect was influenced by said publication.
    
      4. This being true the cause was not a pending cause in the court of common pleas at the time the publication was made, and could not become the subject of contempt proceedings in that court; nor •can it be successfully contended that because the matter to which the article referred was still a pending cause in the circuit court of the same county, that its publication was a contempt upon all the courts of the county, or that a gross vinification of the court constitutes such an open scandal upon the administration of justice generally, that it falls within the provisions of the statute providing summary punishment for a contempt which obstructs the administration of justice,
    
      Gard, J.; Clark, J., concurs; Kyle, J., dissents.
   Decision dismissing charge of contempt.

This is' an action for contempt against James M. Cox and George P. Burba, respectively the publisher and editorial writer of the Dayton Daily Neivs, a newspaper printed and of general circulation in Dayton and Montgomery county, Ohio. The committee appointed by the court of common pleas to investigate said matter found in their report that there had been a contempt of the court-in the publication in the editorial columns of this newspaper of date December 29th, 1910, of a certain article allegedly scandalizing the courts of Montgomery county, Ohio, and that James M. Cox and George F. Burba were responsible for the writing and publication of this allegedly contemptuous article.

The information filed by the committee is as follows:

“In obedience to the order of this court, the state of Ohio, by J. D. Clark, W. S. MeConnaughey, A. McL. Marshall and Roy D. Fitzgerald, members of the bar appointed by the court, for the purpose, charges and -states that on the 29th day of December, 1910, in Montgomery county,’ Ohio, James M. .Cox and George F. Burba were guilty of contempt of court in this, to-wit:
“That at the time there was and had long been pending in .said court ease No. 27430,. the Dayton Reduction Company, plaintiff, vs. the City of Dayton, State of Ohio, defendant, wherein plaintiff sought to secure the specific performance of a contract to deliver garbage to a reduction plant and to recover damages from the city of Dayton for a breach thereof; that theretofore said court had referred the assessment of damages to a special master commissioner; that' said commissioner had reported his finding to the court fixing $79,420 as the amount of damages which defendant should pay; .that said court modified said finding by reducing said amount to the sum of $75,828-; that thereafter on .the 23d day of November, 1910, a motion for a new trial was filed, and on December 30, 1910, the court made an order -overruling the motion; that on the said 29th day of December, 1910, at the city of Dayton, county of Montgomery, and state of Ohio, said James .M. Cox and George F. Burba published in a newspaper which was generally circulated in said city, and county and in the court house thereof and in the presence, of the court on and after said date, the. following false and contemptuous article scandalizing the .courts .of .Montgomery county, Ohio, including this court' of common pleas, to'-wit:
' “ ‘ That judgment. Certain eminently respectable citizens are making an effort to have the mayor use his good offices to compel the city to pay the award of nearly eighty thousand dollars sometime ago given to the reduction company as an outcome o£ its suit against the city of Dayton.
“ ‘If any “innocent holders” are about to lose anything in connection with the ease it is unfortunate. But when judicial pirates appoint dipsomoniacal referees to fix the swag for private grafters, the citizens are not likely to lose any sleep over the other fellow’s losses.
“ ‘From the first to last the affairs in connection with the disposal of garbage have savored of a conspiracy to rob the city, and political buccaneers having “influence” with the courts have brought suspicion to the doors of many of the persons connected with the enterprise. .
“ ‘Let the ease be fought to the bitter end.
‘ ‘ That said publication was in reference to said .case and was false and malicious, and tended to degrade and defame said court of common pleas and to bring said court into general contempt and infamy in the minds of the citizens of said city and county and to obstruct the administration of justice in said ease and other eases pending in said court; all against the peace and dignity of the state of Ohio.
“Wherefore, said James M. Cox and George F. Burba are guilty of contempt of this court.
“(Signed) “J. D. Clark,
“W. S. McConnaughey,
“A. McL. Marshall,
“Roy G. Fitzgerald.”

Pleas in abatement have been filed by Mr. Cox and Mr. Burba, which are identical in terms, and which go into a recitation of that which occurred in the court of common pleas in the case of the Dayton Reduction Company v. the City of Dayton, Ohio, and set forth specially a want or lack of jurisdiction in the. court oE common pleas issuing the process in question.

The case coming on to be heard upon the evidence offered by the committee, a copy'of this newspaper of date December 29, 1910, was first offered and admitted in evidence, and other newspapers offered and admitted, subject to the objection of counsel for the defendants, bearing allegedly upon the question of knowledge and responsibility, and then the testimony of divers witnesses; the defendants resisting .only op the plea of lack of jurisdiction,

The evidence shows that James M. Cox was not in the city of Dayton at the time of this publication and had no knowledge of it.prior to the time of its appearance in the newspaper; and that George F. Burba, who was and is an.editorial writer on this paper, wrote and caused to be published this article.

, While not admitting in terms the publication, the answer or plea, in abatement denies any contempt on the part of either Air. Cox or Air. Burba, and raise’ explicitly and in terms the question' of the jurisdiction of the court to punish either of the defendants for ..contempt for the reason, as the answer avers, that an appeal was perfected on December 17th, 1910, to the Circuit Court of Montgomery County, Ohio, from the judgment of the court of common pleas in case No. 27430, the Dayton Reduction Company v. the City of Dayton, Ohio, and that thereafter this action was not pending in the common pleas court, and therefore no cause that this article could prejudice in the due and proper administration of' justice.

Part of the'evidence and argument is addressed to the question as to whether or not this was a pending cause and the publication of this article a contempt thereof; the other question raised being that even if it be not a pending cause, is it not such an article that it is a contempt against the courts of this county generally and an article which openly scandalizes the courts and the administration of justice, there being no question but that the article was most contemptuous if connected with a pending cause in the court issuing process 1

[ I am of the opinion, first, that as there is no connection made in the evidence with any agency of James M. Cox in the publication of this article save that he is the publisher at the newspaper, and that as the evidence expressly shows that he was out of the city at the time of its publication and neither wrote the article, inspired its publication, or. consented to or approved of it, that there is nothing shown why this court should punish him for contempt, and therefore this particular defendant is released and purged of contempt/]

The jurisdictional question made in the answer of Mr, Burba ■is now for determination, and the evidence upon this question shows that the case was duly and properly appealed to the circuit court on December 17th, 1910, but that a motion for a new trial, which had been filed by the defendant, was pending and not overruled until December 30th, 1910, one day after the publication of the allegedly contemptuous article.

The court of - common pleas held in the case of the Dayton Reduction Company v. the City of Dayton that the cause was an equitable one and denied the request of the defendant for a jury trial, and inasmuch as this court is now sitting as that same court of common pleas, I am of opinion that the holding by the trial court on this question should be here adhered to, the circuit court being the only court now to decide whether it be an appealable cause, referring to a decision to appear’in the 83 O. S. Reports, and therefore I shall consider the cause as an equitable one.

With this conclusion it follows that the duly perfected appeal as made on December 17th, -1910, removed the cause from the court of common pleas to the Circuit Court of Montgomery County, Ohio, and therefore at the time of the publication of this article the case had passed from the jurisdiction of the common pleas court and was within the jurisdiction of the circuit court.

While the technical overruling of a motion for a new trial was not done until December 30th, 1910, the evidence discloses that there was no intention to really present that motion to the court or to insist upon its argument, and that all that was intended to be done was what was done, to-wit, the placing, on record of the formal entry overruling the motion for a new trial, and therefore there was nothing in this almost agreed to act which could be influenced by the publication of the article in question.

The case being appealable, it was wholly immaterial what disposition the trial judge- might make of the motion for a new trial, or whether he ever acted upon it at all. So it is my opinion that there was nothing pending in this case in the court of common pleas at the time of this publication which could be made the subject of contempt of court.

It is claimed finally by the committee haying in' hand the charges of contempt that independently of the fact of the case being within or without the court of common pleas, that it was in some court in Montgomery county and that this article was a contempt upon all the courts of Montgomery county and an open scandal on the • administration of justice in courts generally.

We have been cited to cases in the able presentation by the committee which it is claimed hold that the publication of an article such as this is contemptuous under the common law of England, and it is urged here that we give application to this rule.' Some of these cases are based upon Lord Hardwick's classification of contempts under the common law, which are as follows: '

1st. Where one scandalizes the court itself.

2d. The abusing of parties who are concerned in cases in court.

3d. Where one prejudices or attempts to prejudice mankind against persons before the case is heard.

The cases in the United States which hold, as some of them do. that any scandalous utterance or publication of or concerning a court is contemptuous, are all cases which follow the expression of the early English courts that a court has the inherent right to protect itself from slander or libel by attachment for contempt.

In Ohio, however, we have a statute on the question of, con-tempts of court, the one upon which these very charges are made, being Section 12136 of the General Code, which reads as follows:

“A court, or judge at chambers, summarily may punish a person guilty of misbehavior in the presence of or so near the court or judge as to obstruct the administration of justice. ’ ’

In Hunt v. State, 5 C.C.(N.S.), 626, on page 645 the court says, referring to the section cited:

‘ ‘ And that, we understand, is not intended to be restrictive of the inherent common law right of the court, but if is sufficiently comprehensive to include all of the power that the courts at common law ever had to punish contempts summarily. ’ ’

If this be true, and I am of opinion that it is, it necessarily follows that to punish for contempt something must have been done or said “to obstruct the administration of justice.”

The Supreme Court of Ohio has recognized this in the case of Myers v. State, 46 O. S., at page 491, when it said:

"It was not the libel against the judge which constituted the offense for which the respondent was liable as for contempt of court — the offense consisted in the tendency of his acts to prevent a fair trial of the cause then pending in the court, it is this offense which constitutes the contempt and for which he could be summarily. * * *
‘ ‘ The statute clearly authorizes, as did the common law, courts to punish summarily as contempts acts calculated to obstruct their business. They could not be maintained without such power nor could litigants obtain a fair consideration of their causes in a court where the jury of judge should be subject during the trial to influences in respect to the case upon trial calculated to impair their capacity to act impartially between the parties. ’ ’

In Post v. State of Ohio, 14 Circuit Court Reports, 112, the last syllabus reads:

"Newspaper comments however libelous having relation to proceedings which are past and ended, are not in contempt of court, or of the authority of the court to which reference is made. ’ ’

This syllabus is found from a consideration of the Supreme Court’s decision in the Myers case, supra, and the circuit court says:

"It is apparent to us, that this language of the court (meaning the Supreme Court) was intended to and the court does hold that libels upon the court which do not relate to cases pending are not a contempt, and concur with the adjudication in those states which so hold.”

Newspaper articles reflecting upon a court or court procedure may be either critical, libelous or contemptuous. A criticism is an expression of opinion in disapproval of a judge or court action, a libel an untrue, unjust and malicious attack upon a judge in his official capacity, a contempt an attack upon court or procedure which tends to affect the administration of justice in any pending cause.

We recognize the right of free speech and the right to full expression of private opinion in honest criticism or even censure, but when language passes this and becomes malicious in attack upon a judge of a court, then the law holds it to be a libel, and when by word, writing or act evil > influence is sought to be brought, to bear upon pending litigation by attacks made upon a judge officially or upon the conduct of a certain cause pending therein, this the law holds to be contempt.

The distinction between libel and contempt is obvious, for while a libelous attack may be proceeded against independent of any case, and affects but the person attacked, a contempt strikes at the very foundation of our free institutions when it attempts to obstruct the administration of justice between man and man.

.No court could properly maintain its dignity or the solemnity of its decrees if it were without power to punish those who seek by exciting public clamor or private vengeance to control or influence the action of court or jury in any pending litigation and thus prevent or hinder the triumph of right and justice, but beyond this the extraordinary process of contempt should not go.

The article in question, so the evidence shows, was written and published apparently without very full investigation or even appreciation of the subject-matter, and was, under the evidence submitted, a most unjust attack upon a court whose action so far as honesty and good faith were concerned, was nowhere brought in question by any of the parties to the cause, and the succeeding newspaper comments made thereupon were most indelicate and savored of bravado; but I can not believe that this most unworthy attack extended so that it obstructed or tended to obstruct the administration of full and complete justice in all cases before the courts of Montgomery county.

Such publication, while pernicious and subversive of the good order of society and the proper subject for penal legislation, has no direct tendency to obstruct the court in the free exercise of its functions. It is this autonomy of the court that is the subject of its extraordinary self defensive power. It may invoke this power to preserve its freedom of action, but not its general reputation. For the latter, it must rely upon its own rectitude and upon the good sense and appreciation of the people it serves.

With this conclusion it follows that the charge of contempt of court .as made against George F. Burba is not legally sustained.

Clark, J.

I concur in the opinion and conclusion as announced by Judge Gard and largely for the reasons stated in that opinion. I have not, however, arrived at its conclusion from any belief that the question of the existence of that species of contempt called libel upon the courts'in general has been settled by any authority, any case adjudged in Ohio. I do not understand that the language used by the Supreme Court in the ease .of Myers v. State, in the 46 O. S., nor Hale v. State, in the 54 O. S., either by direct affirmation or by any necessary implication affirms or denies the existence of such a species of contempt; so that it is not upon the theory that the question has been settled in Ohio that I have reached my conclusion, but upon the reasons set forth in the opinion just delivered and upon the general reason and right'of the case. The authority, this extraordinary power residing in the court being founded upon necessity, it must find its limit when the necessity ceases, and this necessity as has been set forth extends only to the preservation of its freedom of action in the' business it has in hand.

Kyle, J.,

dissenting.

This case is a proceeding in contempt against the defendants, James M. Cox and George F. Burba. The information, prepared and filed by members of the bar, appointed by the court for that purpose, charges, in substance, that, on the 29th day of December, 1910, the said defendants published an article in the Dayton News which was false and malicious and tended to degrade and defame said court of common pleas, and bring said court into general contempt and infamy in the minds of the citizens of said city and county, and to obstruct the administration of justice in a case then pending, and other casés pending in said court, and said defendants were thereby guilty of contempt.

The defendants filed separate pleas in abatement, which are the same in form, and aver in effect that they appear only to contest the jurisdiction of the court, and claim that there is no right to proceed against them by this proceeding, for the reason that the ease referred to in the information was not pending on the 29th day of December, 1910, and that the article complained of could not operate or prejudice the rights of the parties or obstruct the administration of justice.

The evidence establishes that on the 29th day of December, 1910, the article set forth in the information was published in the Dayton Daily News, with James M. Cox, publisher, and George F. Burba the editor in chief at that time; it further appears that the case of the Reduction Company against the city had long been pending, and that the trial court held that the damages sought to be recovered were an incident to the action for specific performance, and the parties were not entitled to a trial by jury, and referred the same to a master commissioner who made his report, which was confirmed and judgment entered thereon, on the 22d day of November, 1910.

On the same, or next day, notice of appeal and a motion for a new trial were filed. On December 17th, an appeal bond was filed by the city in due form, and approved by the clerk On December 30th the motion for a new trial was overruled.

On the day of the publication of said article James M. Cox was in the city of Columbus, and had no knowledge, direct or indirect, of its publication. During his absence George F. Burba, editor in chief, prepared and wrote the article in question. The Daily News is a newspaper of general circulation in the city of Dayton and Montgomery county, and was circulated in and about the court house.

Without determining the question as to whether or not there was a case pending on the date of the publication, are the facts sufficient to sustain the charge against James M. Cox?

Prior to December 29th, there had been some matters published commenting adversely upon the said case, and it is claimed that by reason of such publications James M. Cox, as publisher, knew, or might have known, that the editor might publish the article in question, and also the fact that no retraction was after-wards made, he should be held to answer. '

It could not be well claimed that if the article charged was contemptuous and the publication illegal that Cox might have assumed that Burba would publish such an article. He had the right to presume that he, Burba, would not publish anything beyond the limits of propriety. And since it does not appear that James M. Oox participated in, or had knowledge of the article before its publication, the same having been published in his absence, it could not be made the basis of a charge against him for contempt, and, therefore, the case as to him should be dismissed upon its merits, without touching the question of jurisdiction.

Mr. Burba wrote and published the article, and the case, as to him, will be considered upon the law and the facts presented:

Much time was spent in discussing whether or not there was a ease pending. This court will not go beyond the record. And as the court held in the reduction ease that it was an action in equity, so far as this proceeding is concerned, such will be held to be the law of that case, without giving it any consideration

The. statute provides, Section 12226:

‘ ‘ That a party desiring to appeal his cause to the circuit court within thirty days after the judgment or order is entered on the journal of the court, shall give an undertaking and with sufficient surety to be approved by the clerk of the court, ” etc.

The judgment in that case was entered on November 22d. The party appealing filed its appeal bond within thirty days from the date of that judgment.

' ' Under the 77th Ohio State, .389, upon the filing of the appeal bond the ease was appealed to the circuit court and there was no case pending in the court of common pleas.

If the appeal was not properly taken and the filing of the bond was premature, that question could only be determined by the circuit court. The Supreme Court in Drake et al v. Tucker et al, 83 Ohio State, page —, decided November 22d, 1910 (O. L. R., Vol. 8, p. 51), held:

Syllabus: “Whether a cause in which an appeal has been taken to the circuit court from the judgment of the court of common pleas is- appealable, is a question which can not be effectively made except by a motion to dismiss the appeal interposed in the circuit court before the trial in that court.”

Under the proceedings there was no case pending in the common pleas court from and after December 17th, therefore the publication charged could have had no effect upon the action of the court in that ease.

The fact that a motion for a new trial was overruled on December 30th is of no consequence if the case was not in that court. What effect such entry may have is not for this court now to determine.

Holding these views it is not necessary to pass upon the question as to the claim that the motion was in fact overruled on the day the judgment was entered.

This now leaves the case to be determined whether or not the publication made, which had no bearing upon a pending suit so far as the common, pleas court was concerned, is sufficient to hold the defendant, Burba, for contempt.

The charge is that the said false and contemptuous article scandalized the courts of Montgomery county, and tended to disgrace and defame the same and bring them into general contempt and infamy in the minds of the citizens of said city and county.

The defendant claims that the old common law of scandalizing the court is n"ot in force and no longer regarded as binding, and that unless the publication, however libelous, affects pending cases it is not contempt.

Gounsel for the defendant cite a number of cases in support of that claim.

In the 64th Illinois, page 195, People v. Wilson (decided in 1872), it was held that courts have power, regardless of the statute, to punish for contempt. But that case was an alleged contempt which affected a pending ease, and, therefore, the question here presented was not before the court.

In the 40th Iowa, page 207, State v. Anderson, the rulings of the court were criticized subsequent to the determination of the ease, and was held it was not contempt.

This case, as in the 6th Iowa, page 245, State v. Dunham, was controlled by the statutory provisions then in force.

In the 110 Indiana, page 301, Cheadle v. State, the court held:

“Newspaper comments, however stringent or libelous,'having relation to proceedings which are past and ended are not in contempt of the authority of the court to which reference is made. ’ ’

From the opinion, it would appear that the publication did not rise, so far as it affected the court itself, to the grade of either libel or a contempt, and upon the undisputed facts contained in the article in that case, it was a legitimate subject of discussion. The comments had reference to proceedings in court, and did not relate to the official character and integrity of the court itself, and, therefore, would not parallel the charge made in the present ease.

In the 33 West Virginia, page 251, State v. McClaugherty, the court held that the statute regulating punishments for the classes of contempts therein mentioned is constitutional and binding upon the courts, and that the court had no power to punish contempt beyond the statute.

In 79 Illinois, page 45, Storey v. People, it was held:

“ It is not contemptible under our Constitution that a publication, however libelous, not directly calculated to hinder and obstruct or delay the courts in the exercise of their proper functions shall be treated and punished ’ summarily as a contempt of court.”

Such limitation left no room for any proceeding under the common law for contempt for any false and scandalous publication concerning the court itself.

In 97 Wisconsin, page 1, State v. Circuit Court, the court held that articles published in a newspaper which contain strictures upon the general character of a judge which had no reference to cases then pending, was not a contempt, especially where such judge was a candidate for re-election. From the opinion of the court it would seem that the revised section of their law, 2565, defined contempts. There it was conceded that some of the cases go upon the common law which holds that libelous publications affecting a judge are punishable for contempt. Yet they held it was competent for the Legislature to limit such power ,by ■statute, and that such power ha,d been limited by their statute. If their Legislature did limit their power, and they were bound by it, it would not apply to the proposition claimed in this ease.

45 Nebraska, page 741, Percival v. State, publication was made about a pending case, and no holding as to cases not pending.

In 116 Louisiana, State v. Merrill, page 723, the act complained of was a private letter written by one of the parties against whom judgment had been tendered, criticizing the court about a case then ended, and was held not to be contempt.

In the opinion the court approves 97 Wisconsin, page 1, and says that the rules there laid down apply with greater, force to private letters. There was no publication of a libel that in any way could have affected the public mind toward the court.

In the case of McLeod v. St. Aubyn, Appeal Cases, 899, page 549, counsel have quoted in their brief as supporting their contention that:

“In England committals for such contempts have become obsolete; in small colonies consisting chiefly of colored population they still may be necessary in proper cases.”

In their opinion the court say:

‘ ‘ Hence when a trial has taken place, and the case is over the judge and jury are given over to criticism.”

The above reference when read in the light of the first part of the syllabus seems rather paradoxical; it is as follows:

“Contempt of court may be committed by publication of a scandalous matter respecting the court, after adjudication, as well as pending a case before it.”

The above together with the first quotation constitute the first syllabus in that case. ■ The court would seem to say in that ease that it was the law, and yet is obsolete.

Probably the consideration to be. given to this case is lessened by the ease in the following year, of Queen v. Gray, 2d Queen’s Bench, 1900, page 36, Lord Russel, Chief Justice, where it was held:

Syllabus: ‘1 The publication in a newspaper of an article containing scurrilous personal abuse of a judge with reference to his conduct as a judge in a judicial proceeding which has terminated' is a contempt of court punishable by the court .on summary process.”

In 3d South Dakota, page 503, State v. Sweetland, the question contended for by the state was that the affidavit was sufficient to show that the publication complained of referred to a pending case. The court decided that it did not. It is true that in the opinion the judge gave his views concerning a contempt charged not affecting a pending suit.

The judge said:

“It would be a perversion of the statutory doctrine governing the proceedings of courts, and its power' to punish for a contempt to permit a judge to summon before him and punish by fine and imprisonment one who challenges his learning, integrity or impartiality as a judge in a public newspaper, except when the interests of the state demand it to vindicate the independence and integrity of the court and protect them from publications directly calculated to embarrass, impede, intimidate or influence them in the due administration of justice in proceedings pending before them.”

The court in that case seems to have been limited in their proceedings and power by the statutes governing contempts.

In 20 Oregon, page 50, State v. Kaiser, the court held that the power to punish for contempts is limited and governed by statute and the code making no provision for any libel of the court after case is ended, there was no contempt.

The case which seems to directly support the contention for the defendant, is the 46 Texas Criminal, page 576, Ex parte Green, in which the court held:

‘ ‘ Syllabus 2. Publications not relating to a pending ease, no matter how defamatory the language used may be with reference to the court, or the judge thereof, will not constitute contempt as it can not be regarded as calculated to interfere with the administration of justice.
‘ * Syllabus 3. Where a newspaper article which criticizes and reflects upon the proceeding of the county court, the judge, and the bar, in general terms, was published, but did not refer to any ease then pending and the judge of said court, the publisher of said article was not guilty of contempt. ”

The court in that case seemed to rely upon the cases there cited following, what they thought to be the majority of the decided cases, without reviewing any. Many of them have been referred to heretofore. But the authority and regard for this case is much weakened in view of what the judge says in the opinion immediately following the language of the second syllabus above given:

“If it is true, as has been said, that the principle on which all constructive contempts are allowed is the tendency to degrade the courts and so impair' their usefulness as agencies of the government, then it must be conceded that it is difficult to distinguish the evil consequences likely to ensue from denunciatory publications regarding the conduct of the courts in cases no longer pending, and such publications concerning cases that are pending. To the ordinary understanding the baneful resui likely to follow are equally as great in one case as the other.”

However,' as I have said, regardless of such views expressed by the judge, the court followed what they thought to be the majority of the cases then decided.

In 14 Ohio Circuit, page 111, Post v. State, the last syllabus holds that:

“Newspaper comments however libelous, having relations to proceedings which are past and ended are not in contempt of court, or of the authority of the court to which reference is made. ’ ’

This was a proceeding under the statute and the court held that the article there published did not, within the meaning of the statute, obstruct the administration of justice. It was an unjust criticism, but not a contempt of the court. There was nothing in that case which charged the court with corruption and made him, if the statements were true, wholly disqualified to hold his office.

The case of State v. Myers, 47 Ohio State, page 473, affected a pending case and, unless it may be indirectly inferred, does not apply to the present case.

The foregoing are the cases 'principally relied upon by the defendant.

The authorities cited by the state are not numerous. The first, most recent and important, is the 82 Vermont, page 382, State v. Hildreth, where the question was before that court, and it held:

. “It is. contempt at common law punishable by the court on summary process to scandalize a court of record by a newspaper publication in respect of the court’s decision in a case no longer pending.”

In this. case there is a collection of many of the authorities presented by the defendants. It was decided in 1909, and fully considered and is parallel to .the case at bar.

The precise question before - that court was whether it was a contempt at common law to scandalize a court of record by newspaper publication in respect to its decision in a case no longer pending.

In 103 Virginia, page 838, Burdett v. Commonwealth, a recent case, the same view was taken as the court held:

Syllabus 4. ‘‘The courts have power to punish as for a contempt, libelous publications upon the proceedings of the court, or the judge thereof, in his official capacity, and such power exists as well after the case has been finally disposed of as where it is still pending.”
Syllabus 5. “The summary punishment, as for a contempt, of the author of a libelous newspaper article, is not an invasion of the liberty of the press, but has to be exercised with utmost caution and reserve. While any citizen may comment upon the decisions and proceedings of the court, and discuss their correctness, and the fitness or unfitness of the judges for their station, and the fidelity with which they perform their duties, he had no right to attempt by libelous publication, to degrade the tribunal, for such publications are an abuse of the liberty of the press for which he is responsible.”

In the 177 Missouri, page 204, State v. Shephard, it was held:

“To write and publish a falsehood concerning the court, or its judges, sitting in their judicial capacity, charging them of being corrupt, and as having been bought to render a decision, is a contempt of court.
‘ £ A contempt which consists of scandalizing the court itself is a matter where the state and the people and the court itself are vitally interested.
“The injury to the public primarily in scandalizing the court itself is just as great whether it refers to a particular pending case, or only to the court as an instrument of .government, and a constructive contempt of that character is none the less coutemptuoiis'because the case to which the contemner in his paper referred has already been disposed of.”

In the 16th Arkansas, page 385, State v. Merrill, it was held that the. court had constitutional power to punish as for contempt for the publication of a libel made during the term of the court in reference to a case then decided, imputing to the court official bribery in making the decision, such power being inherent in courts .of justice as a necessary incident to the exercise of the powers conferred upon them.

The court says:

“Any citizen has a right to comment upon the proceedings and decisions of this .court, to discuss their correctness and the fitness or unfitness of the judges for their stations, and the fidelity with which they perform the important trusts imposed upon them, but none have the right under Section 7, Bill of Rights, to attempt:by libelous publication to degrade the tribunal, etc., 'and such publications are an abuse of the liberty of the press for which he is held responsible. ’ ’

It- is' claimed iurthér on the part of the defendant that the common law of England is no longer binding in respect to contempts.'

In 13 Ohio State, page 36, Drake v. Rogers, the court say:

“ ‘The common law' has continued to be recognized as the rule of decision, in the absence of legislative enactments, so far as its-rules and principles appeared to be based on sound reasoning, and applicable to our condition and circumstances:’ And this is no doubt a very correct and fair statement of the circumstances and extent to which the common law of England is received in this state as a rule of decision in our courts. ” 21 C. C., 151, Kablitz v. University; 56 O. S., 39, Felix v. Griffith; 77 O. S., 16, State v. Fronizer.

The case of Hall v. State, 55 Ohio State, 210, determines the power of the Legislature to control the courts in proceedings of this character.

From the foregoing cases the following conclusions of law are reached:

' First, The common law of .England so far as applicable js tíie law of the state of Ohio.'

Second. The General Assembly is without authority to abridge the power of the court created by the Constitution, to1 punish contempt summarily, such power being inherent, and necessary to the. exercise of their judicial functions.

Third'. A false publication imputing official' dishonesty and corruption to a court tends to degrade the tribunal, destroy public confidence in their judgment, and affects their power and freedom in the administration of their duties.

Such being our conclusions of law we now take up the publication in this case to apply the law to the facts. That the publication charged in this case was false, libelous and scandalous does not need any argument. In substance it charges that the judges of Montgomery county are judicious pirates, and corruptly collude with the grafters in robbing the parties'who. come before them for justice.

Notwithstanding .the calumny of the article this proceeding is •for the benefit and protection of the public in securing the' proper administration of justice, and not to satisfy, the whims or fancied injuries, of thé persons who may be affected thereby. Courts, only exist in the person of its judges. Law, apart from the judge, is only 'an abstract idea, and not the subject-of defamation.' To ■libel' and scandalizé the judge is to degrade the court and affect •its -power'for good.'

To institute and conduct, such- proceedings 'as these-in a vindictive spirit of revenge would be to destroy -in the minds of the public that very respect for and confidence in the courts which is now sought to be preserved and maintained. The acts of the judges and all public officers are. open to' approvál or disapproval and must stand or fall upon their merits in popular estimation. But when the publication is- an attack upon the character and integrity of the court, and without any foundation of truth, haye not- the reasonable- bounds of the freedom "of the press been exceeded? ; .

In considering-a charge of .this kind there' is a, natural apprehension that personal consideration may -enter into the judgment of the court. And these proceedings should be conducted .with such fairness as to assure every one,' even the defendants in this case, that what is done is done for the protection of the public, ánd not for or on behalf of any individual. While the duty is a delicate one, it is one that can not be shirked when the occasion presents itself. It must be met with the single purpose to preserve the integrity and confidence of the courts in order to secure the impartial administration of justice.

No judge or court should be immune from all fair and legitimate comment and criticism. But to be made the target for abuse'ánd villification is quite another thing. If a publication charged that a judge was bought or prostituted his office for money or gain, and on a summary process for contempt the publisher alleged and proved the truth of his publication, it would not be contempt no matter how libelous or infamous the charge. No man is or should be exempt from ■ having the truth made known as to his conduct regardless of consequences.

In this case there is no plea of the truth of the charge or excuse of any kind offered for its publication. Mr. Burba has seen fit to stand solely upon the want of jurisdiction of the court. Under the authorities above referred to we think that this court has jurisdiction.

The exercise of any arbitrary power is naturally resented. And in every such ease the court should act with the utmost caution and prudence. In the exercise of this power there is no serious danger to the citizen. Power must be lodged somewhere and that it is possible to abuse it is no argument against its exercise. If in this case this court errs in its judgment in the opinion of any party to this proceeding all its findings are subject to review by the higher courts.

In this case Mr. Burba has written and published an article which, if true, no judge comprehended in his charge is worthy to hold his place for one moment.

There is no justification or excuse made, ánd the publication, falsely charging official corruption and fraud, degrades the tribunal, which'is entitled to respect,, and it is and must be held ■to be contemptuous, and the defendant; George F. Burba, guilty •of contempt. .

There is -always much interest in' hearing important, questions of law so fully and ably presented as in this case. Learned counsel have been diligent and painstaking in their preparation. And after such a presentment there is a certain fascination in investigating and arriving at a conclusion, but beyond the interesting law questions involved, when it comes, by reason of our conclusions, to fixing a penalty and passing sentence it becomes an unpleasant and distasteful duty.

A penalty, which in the mind of the public, is so severe as to appear oppressive and unjust would fail and nullify the purpose of this proceeding. It is not so much the severity of the punishment that deters, but the fact. In this ease it is much more the wisdom and justice of our conclusions that will command and insure respect for this tribunal than the penalty inflicted. There is no desire to be oppressive or work hardship upon this defendant, George F. Burba, who may not have fully comprehended the impropriety of his act. And the judgment and sentence of this court should be that he pay the costs of this proceeding and be fined in the. sum of $ — .  