
    [No. 12000.
    Department Two.
    March. 10, 1915.]
    The State of Washington, Respondent, v. Frank I. Sefrit, Appellant.
      
    
    Contempt — Newspaper Comment — Pendency of Court Proceedings — Necessity. Where the fish commissioner, cited to appear and testify before the grand jury, for his own protection secured an order of court directing him to appear and testify or show cause why he should not be punished for contempt, to which order he assented, the matter of his giving testimony was fully adjudicated and determined, and no controversy was pending; hence subsequent newspaper comment thereon, prior to the giving of the testimony, which would have been contumacious if an action had been pending at the time of the publication, is not contempt of court.
    Same — 'Prejudice to Party — Reasonable Doubt. Constructive contempt by newspaper comment on judicial proceedings requires that the matter must have a reasonable tendency to prejudice a party to a pending action, or substantially interfere with the administration of justice; and being quasi criminal, every reasonable doubt must be resolved in favor of the accused.
    Appeal from a judgment of the superior court for What-com county, Hardin, J., entered January 19, 1914, upon a trial and conviction of contempt.
    Reversed.
    
      Newman # Kindall and John C. Higgins (Hyman Zettler, of counsel), for appellant.
    
      Frank W. Bixby, for respondent.
    
      
       Reported in 146 Pac. 864.
    
   Main, J.

This is a contempt proceeding which grew out of the following facts: On or about November 17, 1913, a grand jury was impaneled by the superior court for What-com county, Washington. This grand jury remained in session until a time subsequent to the happenings out of which this proceeding arose. On the 26th day of November, 1913, a subpoena duces tecum, directed to L. H. Darwin, state fish commissioner, was issued. This subpoena directed the fish commissioner to appear before the grand jury on the 4th day of December, 1913, and there testify; and also directed him to produce as evidence the books and records of his office relative to certain matters mentioned in the subpoena. The subpoena was served upon the fish commissioner on November 26, 1913. Thereupon the fish commissioner sought the advice of the Attorney General as to whether or not he had a right to testify and divulge the information called for without incurring the penalty provided for in Rem. & Bal. Code, § 5225 (P. C. 191 § 101). This section of the statute provides, that all reports showing the status of the business of any person required under the provisions of the act, to be made to the fish commissioner, shall by that officer be treated as confidential, and shall not be published “unless their publication shall be necessary in some civil or criminal proceeding.” For a violation of this section the commissioner is subject to be punished by a fine not exceeding $1,000. In response to the inquiry, the Attorney General advised the fish commissioner as follows:

“We are of the opinion that your own rights in the matter would be amply protected by calling the attention of the grand jury to section 5225, Rem. & Bal. Code, and stating to them that you feel it your duty to claim the privilege of refusing to divulge the matters required of you unless the court should order you so to do.”

On December 4, 1913, the fish commissioner appeared before the grand jury in response to the subpoena which had been served upon him, and there exhibited the letter which he had received from the Attorney General. He stated, in response to a question, that he was perfectly willing to testify should the court so order, and that all he cared for the order of the court was to protect himself against the $1,000 penalty imposed by statute. It appears that thereupon the fish commissioner was excused until the court order which he referred to could be secured. During the afternoon of this day, the prosecuting attorney, by affidavit, submitted the facts to the Honorable Ed. E. Hardin, one of the judges of the superior court for Whatcom county. Judge Hardin signed and caused to be entered an order which directed the fish commissioner to appear before the grand jury forthwith, or as soon thereafter as required by the grand jury, and there submit himself as state fish commissioner for interrogation, and the books and records of his office for inspection, or failing so to do, to appear before the court at 9:30 o’clock on the morning of December 5, the day following, and there show cause why he should not be punished for contempt for failing to obey the order of the court. The order recited that L. H. Darwin was present and expressed a willingness to abide by the order of the court whatever that might be, and that he made no other defense than the section of the statute referred to in the affidavit of the prosecuting attorney (Rem. & Bal. Code, § 5225; P. C. 191 § 101). After the order had been entered, the prosecuting attorney advised the fish commissioner that his presence was desired before the grand jury at 9 o’clock the following morning, viz., December 5, 1913. At that time the fish commissioner appeared and remained in attendance until some time during the forenoon of that day, when he was called before the grand jury, where his testimony was given.

On the morning of December 5, and before the time fixed for the fish commissioner to appear before the grand jury on that day, there was published in the American-Reveille, a daily newspaper, of which the defendant is editor in chief and manager, an editorial which contained some comment upon the proceedings wherein the fish commissioner was directed to testify before the grand jury, or show cause why he should not be punished for contempt for failing so to do. The publication of this editorial was, by the trial judge, conceived to be contempt of court. On December 6, 1913, by order of Judge Hardin, this contempt proceeding was instituted by the filing of an affidavit by the prosecuting attorney. The defendant was cited to appear and show cause why he should not be punished for contempt of court in publishing the editorial referred to. On January 19, 1914, the court entered an order in which the defendant was adjudged to be guilty of contempt of court, and directing that he “be punished therefor by being committed to the county jail for the space of ten days,” and that the costs of the proceeding be charged against him. From this judgment, the appeal is prosecuted.

The controlling question is, whether the editorial referred to was a comment upon a proceeding then pending in court. It will be assumed, for the purposes of this opinion, that the editorial was contumacious, if at the time of its publication an action was pending in court upon which there was comment. If no proceeding were pending, it will hardly be contended that the article published constituted a contempt. If a proceeding were pending, it was the one relative to the order directing the fish commissioner to appear before the grand jury and testify, and submit his books for examination, or show cause why he should not be punished for contempt. The question then is, whether the action was pending when the publication took place. The only purpose of the proceeding was to secure an order of the court and thereby exonerate the fish commissioner from liability under the statute on account of disclosing confidential information. The fish commissioner was at no time unwilling to testify. When first called before the grand jury he declared his willingness to testify. To others he expressed the same attitude. It is true that, upon the trial, he testified that, if any one interested in the fish business had appeared and desired to contest the granting of the order on the morning of December 5, he would have permitted him to do so. The order, however, recited, that, on the previous day when it was entered, the fish commissioner was present and consented thereto. Upon the trial he testified that he was not present when the. affidavit was presented to the court and the order made. The order was secured at his instance and for his special protection. The order as entered did not direct the fish commissioner to appear and give his testimony, or show cause why he should not so testify, but directed him to • appear and testify, or show cause why he should not be punished for contempt for failing to obey the order of the court. So far as his appearing to testify was concerned, the matter was finally adjudicated and determined.

Some point is made of the fact that the fish commissioner upon the trial testified that, if any one interested in the fish business had appeared on the morning of December 5 before he was called before the grand jury, and desired to contest the order, he would have permitted him to do so. It is difficult to see how, even if such person had appeared, that a substantial contest could have been waged, either by the fish commissioner, or any one on his behalf, over an order which was secured at his special instance and request, and which recited that he was present when it was entered, and that he consented thereto.

When the article complained of was published, there was no substantial pending litigation. There was no party to a proceeding which the article would have a reasonable tendency to cause to be substantially prejudiced in the conduct of a cause. Neither can the article be said to substantially interfere with the due administration of justice, there being then no pending litigation.

In the recent case of State ex rel. Dorrien v. Hazeltine, 82 Wash. 81, 143 Pac. 436, the defendant was charged with contempt by reason of the fact that he published, or caused to be published, an article in his newspaper which was claimed to be comment upon a proceeding then pending in court. The doctrine was there announced that the matter charged must have a reasonable tendency to cause substantial prejudice to a party in the conduct of an action, or to substantially interfere with the due administration of justice. The essence of the offense is conduct reasonably calculated to create an atmosphere of prejudice where a pending case is to be tried. It was there said:

“The essence of the offense is conduct reasonably calculated to produce an atmosphere of prejudice where a pending case is to be tried. King v. Titbits, 2 British Ruling Cases 469. But the better view is that one will not be punished for a technical contempt. The matter charged must have a reasonable tendency to cause substantial prejudice to a party in the conduct of the action, or to substantially interfere with the due administration of justice. Hunt v. Clarke, 58 L. J. (Q. B.) 490. The basis of this rule is that a proceeding for constructive contempt is quasi criminal, and every reasonable doubt will be resolved in favor of the accused. Hutton v. Superior Court etc. of San Francisco, supra. [147 Cal. 156].”

Under the doctrine of that case, the present action cannot be maintained. In support of the contention that an action was pending when the editorial was published, the case of State v. Tugwell, 19 Wash. 238, 52 Pac. 1056, 43 L. R. A. 717, is cited. In that case, an opinion by this court was filed on February 18, 1898. On February 24, the defendant caused to be published a contumacious article. On February 28, a petition for modification of the opinion of the court was filed. Thereafter, and on March 2, 1898, an opinion of the court was filed denying the petition for modification. It was there held that, since the publication occurred during the time in which a litigant had a right to'file a petition for rehearing, an action was pending in court. But that case does not reach the facts in the present case. Here, as already stated, when the publication took place, there was no substantial litigation pending. The order was desired and secured for a special purpose, that of protecting the fish commissioner from liability under the statute. This purpose had been accomplished. Further controversy over the matter was hardly within the range of possibility, if, indeed, it can be said that there was any pending controversy at any stage of the proceeding.

Other questions are discussed in the briefs; but these become immaterial in view of what has been said upon the primary question.

The judgment will be reversed, and the cause remanded with direction to dismiss the proceeding.

Fullerton, Mount, Crow, and Ellis, JJ., concur.  