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firmed by the District Court of Appeals, and, of the act, the state had issued to a sulse this in turn was reversed by a decision of quent purchaser another certificate for the the Supreme Court of the State of California same land, the owner of the first issued (170 Cal. 674, 151 Pac. 145), and petitioner certificate should be deemed to have lost the brings error. Affirmed.

right to the land or to complete the contract Mr. R. P. Henshall, of San Francisco, Cal., for the purchase of it, unless he should pay for plaintiff in error.

all unpaid interest within six months from Mr. U. S. Webb, of San Francisco, Cal., for the passage of the act. defendant in error.

* If this act is a valid law it is obvious that*

it cut off the plaintiff in error's transferror Mr. Justice CLARKE delivered the opinion for the Brackett certificate was issued prior

from all interest in the land in controversy, of the Court. On June 3, 1869, the state of California due and unpaid for sixteen years, and anoth

to March 27, 1872, interest on it had been sold to Charles A. B. Brackett three hundred

er certificate had been issued to Phillips, and twenty acres of school land, and delivered when the act was passed, and nothing furto him a "certificate of purchase” for it. ther was paid until 1911. Twenty per cent. of the purchase money was

But the plaintiff in error claims that this payable at the time of the purchase and the act of 1889 is invalid because it impairs the remainder “within one year after the passage obligation of his contract of 1869 and deprives of any act of the Legislature requiring such hin of his property without due process of payment, or before, if desired by the pur

law. chaser."

These are large claims, made in impressive The unpaid purchase money was to bear

terms, but in reality the only obligations of interest at the rate of ten per cent. per an

this simple contract were, that the state on num, payable in advance.

the one hand, should furnish a patent to the The purchaser paid interest to January 1, land when it should be paid for at the times 1873, and nothing further for thirty-eight

years, when, on October 26.*1911, a state offi- and in the manner stipulated, and that the cial, without authority to waive the default, purchaser, on the other hand, should make accepted the amount of the unpaid purchase payment as he had agreed to make it.

For the enforcement of the contract the money and interest from the plaintiff in error, as transferee of the certificate, who law gave to the state a remedy by foreclosure, thereupon demanded a patent for the land, in a court proceeding, for default of the pur

chaser, and to the purchaser or his assigns which was refused for the reason that

was given the privilege to redeem at any time on December 29, 1886, a certificate of purchase for the same land had been issued before the expiration of twenty days from enby the state to Michael Phillips, on which try of judgment of foreclosure against him.

And now, after having neglected, if not rethe principal and interest was paid in full on pudiated, his obligation under the contract, August 28, 1911.

by failing to pay the interest due upon it for Upon this refusal by the state, the plaintiff 16 years before the act was passed and for 22 in error filed the petition in this case “for a years thereafter, the plaintiff in error comes writ of mandate" to compel the defendant in complaining that the state by the act of 1889 error, as Commissioner of the Land Office of impaired his right under it by taking away the state to prepare a patent for the land in the twenty-day period of redemption, wbich controversy and to send the same to the Gov- the prior law allowed, even though a six ernor of the state, together with a certificate months' period of redemption, from the pasthat the laws had been complied with, and sage of the act, was substituted for it. that he as transferee of Charles A. B. Brack It is sufficient answer to this contention ett was entitled thereto. Such a suit is said to say that: by the Supreme Court of California to be “in The right of the state to foreclose such a effect an action to require specific perform-contract for default in payment, and the ance on the part of the state” of the con- right of the purchaser to * redeem after a tract evidenced by the certificate of purchase. default decree, relate to the remedy as dis

A judginent of the superior court granting tinguished from the obligation of the conthe prayer of the petition was affirmed by the tract, and both of these rights are constituDistrict Court of Appeals, and this in turn tionally subject to modification by the state, was reversed by the decision of the Supreme within limits which were not exceeded in the Court of the state which is now before us for act before us, as is decided in Wilson review.

v. Standefer, 184 U. S. 399, 22 Sup. Ct. 384, [1] In 1889 (St. 1889, p. 428) the Legislature 46 L. Ed. 612, and in Waggoner v. Flack, of California passed an act providing that in 188 U. S. 595, 23 Sup. Ct. 315, 47 L. Ed. 609, all cases in which a certificate of purchase of which are strikingly similar in their facts public land had been issued prior to March and in their applicable law to the case we are 27, 1872, on which arrears of principal and considering. The right of the purchaser to interest had remained due and unpaid for redeem under the prior law was limited to five years, and in which, prior to the passage paying before the expiration of twenty days

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from entry of default "the amount due the , Sup. Ct. 359, 58 L. Ed. 713; Lehon v. City of state and the costs of suit" and this right Atlanta, 242 U. S. 53, 56, 37 Sup. Ct. 70, 61 was modified by the act of 1889 so as to per- L. Ed. 145. mit redemption by "paying the interest re We quite agree with the Supreme Court of maining unpaid for such purchase within six California that this case is ruled in all esmonths from and after the passage of this sentials by the Waggoner Case, supra, and act." The notice to defendants in a suit for this renders unnecessary the consideration of default under the prior law was of such a the applicability of the doctrine of laches. summary character that we cannot doubt that

The judgment of the Supreme Court of Calthe privilege of the purchaser to redeem un- ifornia must be der the act of 1889 is as liberal as it was be Affirmed. fore the act was passed and the change, there. fore, did not deprive him of any substan

(247 U. S. 402) tial right or benefit.

TOLEDO NEWSPAPER CO. et al. v. UNIT[2] It is, however, pressed upon our atten

ED STATES. tion as an important difference between the (Argued March 7 and 8, 1918. Decided June Texas act involved in these cited cases and

10, 1918.) the California act before us, that the former,

No. 371. in terms, gives to the purchaser of public land the privilege for six months after a de 1. CONTEMPT 66(1) REVIEW FORM OF cree of forfeiture has been entered against

REMEDY-WRIT OF ERROR-CERTIORARI.

A conviction for a criminal, although a him, by a designated state officer, of resort summary, contempt, is a matter of criminal law, ing to a court proceeding to set aside such not reviewable on error; but the matter may be default on the ground that it was not au- reviewed on certiorari, issuable in the discretion

of the court. thorized, while no such provision is contained

2. CONTEMPT C9CRIMINAL "CONTEMPT"in the latter. It is asserted that this dis OBSTRUCTION OF JUSTICE. tinguishes the two acts, and that the absence Judicial Code (Act March 3, 1911, c. 231) of authority for such a court proceeding ren-268, 36 Stat, 1163 (Comp. St. 1916, 81245).

first enacted as Act March 2, 1831, c. 99, 4 ders the California act invalid, by depriving Stat. 487, which declares that courts shall have the plaintiff in error of his property without the power to punish contempts of their authordue process of law.

ity, provided that such power shall not be It would be sufficient reply to this to say construed to extend to any cases, except the that the right to redeem after default de- misbehavior of any person in their presence, or

so near thereto as to obstruct the administracreed, which the purchaser had* under the tion of justice, confers no power not already California statute when his contract was granted, and imposes no limitations not already made, was limited to payment of “the existing, but merely marks the boundaries of

existing authority and, conformably to the amount due the state and costs of suit,” and whole history of the country, recognized and that, therefore, the act of 1889 did not deprive sanctioned the existence of the power of federal bim of such a privilege as the Texas act courts to restrain acts tending to obstruct and gave, of setting aside the decree in a court ercise of the judicial power; so the publication

prevent the untrammeled and unprejudiced exproceeding on the ground that it was not au- of newspaper articles which tend to obstruct the thorized.

administration of justice may be treated as a [3] But it is not important for us to consid- / "contempt.” er such a question, for it is not presented in and Phrases, First and Second Series, Con

[Ed. Note. For other definitions, see Words the record before us. The plaintiff in error tempt.) comes admitting that for thirty-eight years 3. CONSTITUTIONAL LAW E90—FREEDOM OF he and the persons through whom he claims PRESS-CONTEMPT. were in default, and, since he does not offer The constitutional freedom of the press will any excuse for such abandonment of the con

not protect a publisher of newspaper articles

concerning a pending case, though of public intract, even if the California act had contain- terest, from contempt proceedings, under Judied the provision of the Texas act allowing cial Code, $ 268, where the articles tend to oba court review of the default defined in it, struct the administration of justice. such remedy could not have been of any 4. CONTEMPT 66(7) — REVIEW - FINDINGS

OF Fact. avail to the plaintiff in error for he makes

Where defendants, who had been convicted no case upon which he could possibly have of criminal contempt, contended in the Supreme made use of it, and he is, therefore, not in any Court that there was no evidence that the newsposition to attack the constitutionality of the paper articles furnishing the basis for the prosact involved for an omission which does not of justice, the Supreme Court will not con

ecution tended to obstruct the administration injure him, and which, if supplied, would not sider the weight of the evidence, but simply benefit him. He who would successfully as

whether the evidentiary facts found by the

courts below had any reasonable tendency to sail a law as unconstitutional must come sustain the general conclusions of fact based showing that the feature of the act complain thereon. ed of operates to deprive him of some consti- 5. CONTEMPT 28(1) - CRIMINAL CONTEMPT tutional right. Tyler v. Judges, 179 U. S. 405,

- NEWSPAPER PUBLICATIONS — "OBSTRUCT

ING ADMINISTRATION OF JUSTICE." 21 Sup. Ct. 206, 45 L. Ed. 252; Plymouth Coal

Newspaper articles, referring to a suit in Co. v. Pennsylvania, 232 U. S. 531, 544, 34 the federal court to enjoin municipal ordi

Oma For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes

•410

nances regulating street car fares, which held, and dispose of the case to the extent render. the federal judge up to ridicule and hatred in ed necessary by that conclusion. case he should grant an injunction, and in advance impeached his motives in so doing, and

The case is this: The Toledo Rallways & practically urged noncompliance with any such Light Company in 1913 controlled and operorder, must be deemed acts tending to obstruct ated practically all the street railways in the administration of justice, within Judicial Toledo. The franchises under which it did Code, $ 268, and punishment for contempt cannot be avoided on the ground that it did not so, however, it was generally considered, exappear the judge saw the articles or that he pired on the 27th of March, 1914. In anticiwas unaffected by them.

pation of this fact negotiations as to the [Ed. Note.-For other definitions, see Words terms upon which they should be renewed and Phrases, First and Second Series, Ob

were broached between the city and the comstruct.)

Mr. Justice Holmes and Mr. Justice Brandeis pany and pronounced differences were manidissenting.

fested. This gave rise to public agitation

and discussion over the question which had In Error to and on Application for a Writ become acute in November, 1913. In that of Certiorari to the United States Circuit month, evidently in order to enable the city Court of Appeals for the Sixth Circuit. to secure from the company such terms of

The Toledo Newspaper Company and an- agreement as it might impose, an ordinance other were convicted of criminal contempt was passed without giving any new franchise (220 Fed. 458), and, the judgment being af- or in terms making any new contract with firmed by the Circuit Court of Appeals (237 the company, providing that on and after the Fed. 986, 150 C. C. A. 636), defendants bring 27th of March, 1914, the assumed day of the error and apply for writ of certiorari. Writ expiration of the franchises, three-cent fares of error dismissed, and, application for cer- should be charged from day to day. Com. tiorari having been granted, the judgments plaint alleging the injustice of this provision were affirmed.

and the wrong which the railroad asserted Mr. Lawrence Maxwell, of Cincinnati, would be produced by giving it effect inOhio, for plaintiff in error.

creased the agitation. Mr. William L. Day, of Cleveland, Ohio, In January, 1914, creditors of the company and Mr. Assistant Attorney General Fitts, filed in the District Court of the United for the United States.

States their bill against the company to en

join it from obeying the ordinance on the *Mr. Chief Justice WHITE delivered the ground that to do so would confiscate the

property which they held in the company and opinion of the Court. This case is before us on error to review would destroy the franchises which the com

pany enjoyed and which, it was asserted, the action of the court below affirming a judgment of the trial court holding the de only expired in the following October. On fendants guilty of a summary contempt and bill making the city a party to the suit and

March 24th*the creditors filed a supplemental imposing a fine upon them both. There is also pending an application for certiorari tions against the city. On the same day the

asking preliminary and permanent injuncmade upon the assumption that if jurisdic, company also filed its bill against the city tion on error was wanting the case involved seeking to restrain the enforcement of the orquestions of such importance as to justify dinance both by preliminary and final injuncour interposition.

tions. [1] We are of opinion that a motion to dis

At this juncture and before action had miss the writ of error must prevail since it been taken by the court, the Toledo Newsis settled that a conviction for a criminal, al- Bee, a daily paper published in Toledo by the though summary, contempt is for the pur- Toledo Newspaper Company, began publicaposes of our reviewing power a matter of tions adverse to the rights asserted against criminal law not within our jurisdiction on the city by the creditors and the railway

Cary Manufacturing Co. V. Acme company and in no uncertain terms avouched Flexible Clasp Co., 187 U. S. 427, 428, 23 Sup. the right of the city to have enacted the orCt. 211, 47 L Ed. 244; O'Neal v. United dinance which the suits assailed and chalStates, 190 U. S. 36, 38, 23 Sup. Ct. 776, 47 lenged the right of the court to grant the reL. Ed. 945; Bessette v. W. B. Conkey Co., lief prayed. On March 30th the court aft194 U. S. 324, 335, 24 Sup. Ct. 665, 48 L. Ed. er hearing on the applications for prelimina997; Re Merchants' Stock Co., Petitioner, 223 ry injunctions denied them on the ground U. S. 639, 32 Sup. Ct. 339, 56 L. Ed. 584; Gom- that the assailed ordinance was not selfpers v. United States, 233 U. S. 604, 606, 34 enforcing, that it required an application Sup. Ct. 693, 58 L. Ed. 1115, Ann. Cas. 1915D, for judicial power to put it into effect and 1044. But this does not relieve us from the that it would be time enough when the city duty of exerting jurisdiction, as we are of invoked such relief by such power to assert opinion that the case calls for the exertion by way of defense the matters which were of the discretionary power with which we made the basis of the prayer for affirmative are vested. The writ of certiorari is there relief in the pending controversies. fore granted and we proceed to examine In September following under a new prayer the court reconsidered its action and award- Coming to dispose of the information the ed the preliminary injunction prayed on the court found both of the defendants guilty ground that as the city had in the mean- under all the counts and imposed upon both while treated the ordinance as enforceable a punishment by way of fine. The court suswithout resort to judicial process and was tained its authority to so act by an elaborate acting against the company and the credi- opinion, which after stating the evidentiary tors and their alleged rights on that as- facts—the publications and their environsumption, the duty was cast upon the court ment-drew from them ultimate conclusions of protecting such rights pending the deci- of fact and held that from such conclusions sion of the causes. In the meanwhile, how it clearly resulted that the publications comever, the agitation over the questions which plained of constituted a contempt within the the suits involved had unremittingly continu- power of the court to punish because by their ed and was beyond doubt fanned by con- terms they manifestly tended to interfere tinuous publications on the subject in the with and obstruct the court in the discharge stated newspaper into a more exaggerated- of its duty in a matter pending before it. not to use a stronger word-and* vociferous Condensing for the sake of brevity and lookexpression which embraced the whole field; ing at the substance of things, these conclu. that is, not only the relative rights of the sions of the court embraced four grounds: city and the corporation, but also at least (a) Because, leaving aside the attempted rid. by indirection the duty and power of the icule, not to say vituperation, concerning the court and its right to afford any relief in court which was expressly or impliedly conthe matters before it.

38 SUP.CT.-36

error.

tained in the publications, their manifest Immediately preceding the action of the purpose was to create the impression on the court taken on September 12th granting the mind of the court that it could not decide in preliminary injunction and while that sub- the matter before it in any but the one way ject was before it for consideration, an at- without giving rise to such a state of suspi. tachment for contempt was issued against cion as to the integrity or fairness of its one Quinlivan for words spoken by him at purpose and motives as might engender a a meeting of a labor union concerning the shrinking from so doing. (b) Because the court and the matter which it was then en- publications directly tended to incite to such gaged in considering. And a few days fol- a condition of the public mind as would lowing, on September 15th, a similar process leave no room for doubt that if the court was issued against the managing editor of acting according to its convictions awarded the Toledo News-Bee for publications writ. relief, it would be subject to such odium and ten by him in the paper concerning the ac. hatred as to restrain it from doing so. (C) tion of the court in the Quinlivan case.

Because the publications also obviously were On September 29th following the court di- intended to produce the impression that any rected the district attorney to present an in- order which might be rendered by the court, formation for contempt against the news in the discharge of its duty if not in accord paper company and its editor for the publica- with the*conceptions which the publications tions which had been made concerning the were sustaining, would be disregarded and controversy and on October 28th, giving ef- cause a shrinking from performing duty to fect to this order, an information was filed avoid the turmoil and violence which the charging the newspaper company and the publications, it may be only by covert insineditor with contempt. The charges were uation, but none the less assuredly invited. stated in three counts. The first embraced And (d) because the publications were of a matters published during the pendency of character, not merely because of their intemthe suit from the time, March 24th, when perance but because of their general tendenthe action was taken to make the city a par-cy, to produce in the popular mind a condity and the respective preliminary injunctions tion which would give rise to a purpose in were prayed, up to and including the time practice to refuse to respect any order which when the ultimate action of the court on the the court might render if it conflicted with subject in September was taken. The two the supposed rights of the city espoused by other counts related, the one to publications the publications. 220 Fed. 458. made at the time of and concerning the at

The affirmance by the court below of the tachment for contempt against Quinlivan, action of the trial court thus stated, is the and the other to publications concerning the matter now before us for review. That attachment against the managing editor. court, not asserting the right or attempting The defendants demurred on the ground that to exert the power to review the merely evi. the information stated no act within the dentiary facts found by the trial court, but power of the court to* punish for contempt accepting them, in express terms sanctioned and on the overruling of the demurrer they the inferences of ultimate fact drawn from answered, not disputing the publications them by the trial court. The court said: charged, but challenging the innuendoes by “The publications had reference to pending which in the information they were inter- judicial action, and there is a finding of fact ('as preted and reiterating the denial of all pow- and were intended to provoke public resistance

alleged in the information') that they tended er in the court to punish.

to an injunctional order, if one should be made,

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and there is a finding that they constituted any other cause, was necessarily in this country attempt to intimidate_at least unduly to influ. greatly restricted and changed by the effect ence--the District Judge with reference to his of the adoption of the Constitution and the decision in the matter pending before him. That each of these findings is supported by competent operation of the division of powers and the evidence and for that reason binding upon this guaranties and limitations which that instrucourt is too clear for dispute;, but we may ment embodied. Considering this condition rightly go further and say that it is difficult to in the light of the colonial legislation on the see how any other findings could have been made."

subject and the previous state constitutions, This view, however, was restricted to the it was pointed out that it had come to be esmatters embraced by the first count since it tablished, either by express constitutional or was decided that it was irrelevant to con- legislative provisions or by inevitable implisider whether the same view would obtain cations resting upon the very existence of govas to the subject-matters of the second and ernment, that while the limitations as to mode third counts because it was held that in any of accusation of crime and methods of trial erent the finding of guilt under the first

had fundamentally changed the situation count was adequate to justify the penalty had not deprived the legislative power of the

which had previously existed, such change imposed, thus rendering a consideration of the other two counts unnecessary. 237 Fed. right, irrespective of its authority by legisla986, 150 C. C. A. 636.

tion to provide for the trial and punishment Under the case and the action of the courts

of criminal acts, in addition to summarily below concerning it, nothing further would deal by way of contempt proceedings with seem to be required to establish the correct- wrongful acts obstructing the legislative powness of that action since no other course un

er in the performance of its duty. This auder the statement is possible compatibly with thority, it was held, was but an incident of the sacred obligation of courts to preserve the powers conferred and indeed that its extheir right to discharge their duties free ertion in ultimate analysis was a means of from unlawful and unworthy influences and securing the effective operation of the constiin doing so, if needs be, to clear from the tutional limitations as to mode of accusation pathway leading to the performance of this and methods of trial. It was pointed out that great duty all unwarranted attempts to per inhered in the government created by the Con

the authority thus recognized automatically rert, obstruct or distort judgment. Nevertheless in view of the gravity of the subject we stitution, was sanctioned by a long line of juproceed to consider and dispose of the elab- dicial decisions and by state and federal pracorate arguments pressed to the contrary. tice, although the legislative power, doubtThey are all embraced by the three following less as a mere consequence of a reminiscence propositions: First, that there was a total of what had gone before and momentarily want of power in the court to treat the mat- forgetful of the limitations resulting from ters charged in the information as a contempt the Constitution, had sometimes exerted auand punish it accordingly as a result of the thority in excess of that which it was decidprovisions of section 268 of the Judicial Code ed was really possessed. (embodying the text of the Act of March 2,

While the Marshall Case concerned the ex1831, c. 99, 4 Stat. 487); second, that irre ercise of legislative power to deal with conspective of the prohibitions of that act there tempt, the fundamental principles which its was a want of power to abridge the freedom solution involved are here applicable to the of the press by punishing as for a summary extent that they may not be inapposite becontempt comments made by a newspaper cause of the distinction between legislative upon matters of public concern; and third, and judicial power. Indeed the identity of that whatever be the view of the two former the constitutional principles applicable to propositions as there was an entire absence the two cases subject to the differences reof proof sustaining the ultimate inferences ferred to was pointed out (243 U. S. on pages of fact upon which the court based its con- 542 and 543, 37 Sup. Ct. on page 454, 61 L. clusion, such conclusion was wholly errone- Ed. 881, L. R. A. 1917F, 279), where it was ous as a matter of law. We dispose of these said: propositions under separate headings.

"So also when the difference between the ju[2] 1. Section 268 of the Judicial Code and dicial and legislative powers are considered and

the divergent elements which in the nature of its forerunner, the Act of 1831.

things enter into the determination of what is It is essential to recall the situation exist- self-preservation in the two cases, the same reing at the time of the adoption of the Act of sult is established by the statutory provisions 1831 in order to elucidate its provisions. In dealing with the judicial authority to sumMarshall v. Gordon, 243 U. S. 521, 37 Sup. resorting to the modes of trial required by con

marily punish for contempt, that is, without Ct. 448, 61 L. Ed. 881, L. R. A. 1917F, 279, stitutional limitations or otherwise for substanthe power of Congress to summarily punish tive offenses under the criminal law. Act of for contempt came under consideration and March 2, 1831, 4 Stat. 487." it was there pointed out that the enlarged

The pertinent provision of section 268 of legislative power on that subject which pre- the Judicial Code is as follows: vailed in England prior to the separation,

"The said courts (United States courts) shall whether based upon the commingling of leg. prisonment, at the discretion of the court, con

have power

to punish, by fine or im. islative and judicial authority or upon any tempts of their authority: Provided, that such

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