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power to punish for contempts shall not be the express provision found in a statute construed to extend to any cases except the enacted in Pennsylvania in 1809 following misbehavior of any person in their presence, or the impeachment proceedings against Judge 60 near thereto as to obstruct the administration of justice.

Peck dealing with the extent of the power to Clarified by the matters expounded and base a contempt proceeding upon a newsthe ruling made in the Marshall Case, there paper publication should be by implication can be no doubt that the provision confer- read into the Act of 1831 and by filtration imred no power not already granted and impos- plied in section 268, Judicial Code, we think ed no limitations not already existing. In is answered by its mere statement since it other words, it served but to plainly mark it be conceded for argument's sake only that the boundaries of the existing authority re the provision in the Pennsylvania statute sulting from and controlled by the grants relied upon had the significance now attribwhich the Constitution made and the limita- uted to it and that the Pennsylvania statute tions which it imposed. And this is not at

was the model of the Act of 1831, the omis. all modified*by conceding that the provision sion from that act of the provision referred was intended to prevent the danger by rem

to as it existed in the Pennsylvania law is iniscence of what had gone before of at the strongest possible evidence of the purtempts to exercise a power not possessed pose not to enact such provision. And thus which, as pointed out in the Marshall Case,

come to the third and final subject, had been sometimes done in the exercise of

which is : legislative power. The provision therefore,

[4, 5] 3. The contention that there was no conformably to the whole history of the evidence whatever to justify attributing to country, not minimizing the constitutional the publications the consequence of obstruclimitations nor restricting or qualifying the tion and therefore no legal basis for the conpowers granted, by necessary implication clusion of guilt and resulting right to impose recognized and sanctioned the existence of

penalties. the right of self-preservation, that is, the

It is to be observed that our power in dispower to restrain acts tending to obstruct posing of this objection is not to test diverand prevent the untrammeled and unprejudic- gent contentions as to the weight of the eved exercise of the judicial power given by idence but simply to consider the legal quessummarily treating such acts as a contempt tion whether the evidentiary facts found and punishing accordingly. The test there had any reasonable tendency to sustain the fore is the character of the act done and its general conclusions of fact based upon them direct tendency to prevent and obstruct the by the courts below. Considering the subject discharge of judicial duty—a conclusion in this aspect again we are constrained to which necessarily sustains the view of the say that the contention on the face of the statute taken by the courts below and brings record is too plainly devoid of merit to reus to the second question, which is:

quire any detailed review. Indeed we are of [3] 2. The asserted inapplicability of the opinion that the court below was right in statute under the assumption that the publi- saying concerning the ultimate conclusions of cations complained of related to a matter of fact upon which its action was based that it publio concern and were safeguarded from was “difficult to see how any other findings being made the basis of contempt proceed could have been made." True, it is urged ings by the assuredly secured freedom of the that although the matters which were made pre88.

the basis of the findings were published at We might well pass the proposition by be the place where the proceedings were pendcause to state it is to answer it, since it in- ing and under the circumstances which we volves in its very statement the contention have stated in a daily paper having a large that the freedom of the press is the freedom circulation, as it was not shown that they to do wrong with impunity and implies the had been seen by the presiding judge or right to frustrate and defeat the discharge had been circulated in the courtroom, they of those governmental duties upon the per- did and could form no basis for an inference formance of which the freedom of all, includ- of guilt. But the situation is controlled by ing that of the press, depends. The safe the reasonable tendencies of the acts done guarding and fructification of free and con

and not by extreme and substantially imposstitutional institutions is the very basis and sible assumptions on the subject. Again it is mainstay upon which the freedom of the said there is no proof that the mind of the press rests and that freedom therefore does judge was influenced or his purpose to do not and cannot be held to include the right his duty obstructed or restrained by the pub

virtually to destroy such institutions. It suf- lications and therefore there was no proof * fices to say that however* complete is the endi to show the wrong complained of.

right of the press to state public things and But here again not the influence upon the discuss them, that right as every other right mind of the particular judge is the criterion enjoyed in human society is subject to the but the reasonable tendency of the acts done restraints which separate right from wrong- to influence or bring about the baleful result doing.

is the test. In other words, having regard to The contention so earnestly pressed that the powers conferred, to the protection of

* 420

society, to the honest and fair administration Act of March 3, 1911, c. 231, 36 Stat. 1163. of justice and to the evil to come from its Before the trial took place an act was passed obstruction, the wrong depends upon the giving a trial by jury upon demand of the tendency of the acts to accomplish this re- accused in all but the above-mentioned insult without reference to the consideration stances. October 15, 1914, c. 323, 8$ 22, 24, of how far they may have been without in- 38 Stat. 738, 739 (Comp. St. 1916, 88 1245b, fluence in a particular case. The wrongdoer 1245d). In England, I believe, the usual may not be heard to try the power of the course is to proceed in the regular way by judge to resist acts of obstruction and wrong. indictment. I mention this fact and the later doing by him committed as a prelude to statute only for their bearing upon the meantrial and punishment for his wrongful acts. ing of the exception in our law. When it is

This disposes of the case for although the considered how contrary it is to our practice court below we think mistakenly considered and ways of thinking for the same person that it was not under the duty to determine to be accuser and sole judge in a matter which how far the facts sustained the charges un- if he be sensitive, may involve strong personder counts 2 and 3 because the conviction al feeling, I should expect the power to be might be referred wholly to the first count limited by the necessities of the case "to in(Gompers v. Bucks Stove & Range Co., 221 sure order and decorum in their presence" U. S. 418, 440, 31 Sup. Ct. 492, 55 L. Ed. 797, as it is stated in Ex parte Robinson, 19 Wall. 34 L. R. A. [N. S.) 874), we are of opinion 505, 22 L. Ed. 205. See Prynne, Plea for the after examining the facts as to both of*those Lords, 309, cited in McIlwain, The High counts that they also sustain the conviction Court of Parliament and its Supremacy, 191. within the principles which we have just pre- And when the words of the statute are read viously stated.

it seems to me that the limit is too plain to Affirmed.

be construed away. To my mind they point

only to the present protection of the Court Mr. Justice DAY and Mr. Justice CLARKE from actual interference, and not to posttook no part in the decision of this cause. poned retribution for lack of respect for its

dignity-not to moving to vindicate its indeMr. Justice HOLMES, dissenting.

pendence after enduring the newspaper's atOne of the usual controversies between a tacks for nearly six months as the Court did street railroad and the city that it served in this case. Without invoking the rule of had been going on for years and had culmi- strict construction I think that “so near as to nated in an ordinance establishing three cent obstruct” means so near as actually to obfares that was to go into effect on March 28, struct—and not merely near enough to threat1914. In January of that year the people en a possible obstruction. “So near as to" who were operating the road began a suit refers to an accomplished fact, and the word for an injunction on the ground that the or- “misbehavior” strengthens the construction dinance was confiscatory. The plaintiffs in I adopt. Misbehavior means something more error, a newspaper and its editor, had long than adverse comment or disrespect. been on the popular side and had furnished But suppose that an imminent possibility news and comment to sustain it; and when, of obstruction is sufficient. Still I think that on March 24, a motion was made for a tem- only immediate and necessary action is conporary injunction in the suit, they published templated, and that no case for * summary a cartoon representing the road as a mori proceedings is made out if after the event bund man in bed with his friends at the bed- publications are called to the attention of the side and one of them saying “Guess we'd bet- judge that might have led to an obstruction ter call in Doc Killits." Thereafter pending although they did not. So far as appears the controversy they published news, com- that is the present case. But I will go a ment and cartoons as before. The injunc- step farther. The order for the information tion was issued on September 12. The Judge recites that from time to time sundry num(Killits) who was referred to took no steps bers of the paper have come to the attention until September 29, when he directed an in- of the judge as a daily reader of it, and I formation to be filed covering publications will assume, from that and the opinion, that from March 24 through September 17. This he read them as they came out, and I will was done on October 28. In December the assume further that he was entitled to rely case was tried summarily without a jury by upon his private knowledge without a statethe judge who thought his authority con- ment in open court. But a judge of the Unittemned, and in the following year he imposed ed States is expected to be a man of ordinary a considerable fine. The question is whether firmness of character, and I find it imposhe acted within his powers under the statutes sible to believe that such a judge could have of the United States.

found in anything that was printed even a The statute in force at the time of the al- tendency to prevent his performing his sworn leged contempts confined the power of courts duty. I am not considering whether there in cases of this sort to where*there had been was a technical contempt at common law "misbehavior of any person in their presence but whether what was done falls within the or so near thereto as to obstruct the admin: words of an act intended and admitted to istration of justice." Section 268, Jud. Code, limit the power of the courts.

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The chief thing done was to print state , decrees, but when there is no need for imments of a widespread public intent to board mediate action contempts are like any other the cars and refuse to pay more than three breach of law and should be dealt with as cents even if the judge condemned the ordi. the law-deals with other illegal acts. Action: nance, statements favoring the course, if like the present in my opinion is wholly un. you like, and mention of the city officials warranted by even color of law. who intended to back it up. This popular movement was met on the part of the rail- Mr. Justice BRANDEIS concurs in this road by directing its conductors not to ac- opinion. cept three cent fares but to carry passengers free who refused to pay more; so that all

(247 U. S. 464) danger of violence on that score was avoid- POSTAL TELEGRAPH CABLE CO. v. ed, even if it was a danger that in any way

CITY OF NEWPORT, KY. concerned the Court. The newspaper fur. (Argued Jan, 18 and 21, 1918. Decided June ther gave one or two premature but ultimate

10, 1918.) ly correct intimations of what the judge was

No. 273. going to do, made one mistaken statement of

1. COURTS 399(2) UNITED STATES Soa ruling which it criticized indirectly, ut

PREME COURT-SCOPE OF REVIEW. tered a few expressions that implied that Where the state court denied asserted federthe judge did not have the last word and al rights on a basis of fact having no support that no doubt contained innuendoes not flat in the record, a finding of fact by the state court

is not conclusive on the national Supreme Court, tering to his personality. Later there was an and it should review and correct the error. account of a local socialist meeting at which 2. APPEAL AND ERROR 916(1)-REVIEWa member, one Quinlivan, spoke in such a DECISION ON PLEADINGS. way that the judge attached him for con

Where a case was submitted and decided on tempt and thereupon, on the same day that fact by the unsuccessful party must be taken as

the pleadings, every uncontradicted allegation of the decree was entered in the principal true. case, the paper reported as the grounds of 3. JUDGMENT Om682(1) - CONCLUSIVENESS the attachment that Quinlivan had pronounc- PERSONS CONCLUDED-GRANTOB AND GRAN. ed Judge Killits to have shown from the

Where, after a telegraph company had confirst that he was favorable to the railroad, veyed its lines and property, a city recovered a had criticized somewhat ignorantly a ruling judgment against it for license fees for the use said to put the burden of proof on the city, of the streets, such judgment is not conclusive and had said that Killits and his press that a judgment against a grantor is binding on

against the grantee, for the basis of the rule were unfair to the people, winding up “im- the grantee is that the estoppel runs with the peach Killits.” I confess that I cannot find property. in all this or in the evidence in the case 4. JUDGMENT Om634 CONCLUSIVENESS anything that would have affected a mind of

"RES JUDICATA"-NATURE OF DOCTRINE. reasonable fortitude, and still less can I find upon the ground that the party to be affected,

The doctrine of res judicata at bottom rests there anything that obstructed the adminis- or some other with whom he is in privity, has tration of justice in any sense that I pos- litigated or bad an opportunity to litigate the sibly can give to those words.

same matter in a former action in a court of In the elaborate opinion that was deliver.

competent jurisdiction,

[Ed. Note.--For other definitions, see Words ed by Judge Killits to justify the judgment and Phrases, First and Second Series, Res Adit is said:

judicata.] "In this matter the record shows that the 5. CONSTITUTIONAL LAW @ 251 – DUE PROCourt endured the News-Bee's attacks upon CESS OF LAW-HEARING. suitors before it and upon the Court itself, and An opportunity to be heard is an essential carried all the embarrassment inevitable from requisite of due process in judicial proceedings. these publications, for nearly, six months, be 6. CONSTITUTIONAL LAW m315—DUE PROfore moving to vindicate its independence.”

CESS OF LAW-DEPRIVATION OF PROPERTY It appears to me that this statement is JUDGMENT. enough to show that there was no emergency, in its streets had been conveyed to defendant,

Where a city, after telegraph lines located that there was nothing that warranted a recovered a judgment against the grantor comfinding that the administration of justice pany for license fees for use of the streets, and was obstructed, or a resort to this summary defendant was in no way a party, a decision of proceeding, but that on the contrary when the state court that defendant was concluded by

such judgment was erroneous, depriving it of the matter was over, the Judge thought that its property without the due process of law the “consistently unfriendly attitude against guaranteed by the Fourteenth Amendment, for a the Court," and the fact that the publica- state can no more invoke the estoppel of a tions tended “to arouse distrust and dislike judgment against one who is neither a party to

the action, nor in privity with a party therein, of the Court" were sufficient to justify this than it can enforce a judgment against a party, information and a heavy fine. They may named in proceedings, who was not heard and have been, but not, I think, in this form of had no opportunity to be heard. trial. I would go as far as any man in favor In Error to the Court of Appeals of the of the sharpest and most summary enforce- State of Kentucky. ment of order in court and obedience to! Action by the City of Newport, Ky., against

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

the Postal Telegraph Cable Company. A, 5263 et seq. [Comp. St. 1916, $ 10072 et seq.]), judgment for plaintiff was affirmed by the and upon the "equal protection" clause of the Court of Appeals of the State of Kentucky Fourteenth Amendment. 160 Ky. 244, 169 S. (160 Ky. 244, 169 S. W. 700), and defendant W. 700. A writ of error under section 237, brings error. Reversed and remanded for Judicial Code (Act of March 3, 1911, ch. 231, further proceedings.

36 Stat. 1087, 1156 [Comp. St. 1916, § 1214]), Messrs. John R. Schindel and Morrison R. issued before the taking effect of the Act of Waite, both of Cincinnati, Ohio, for plaintiff September 6, 1916 (chapter 448, 39 Stat. 726), in error.

brings the judgment here for review.

The case was decided upon the pleadings Mr. Brent Spence, of Newport, Ky., for defendant in error.

and exhibits, which latter included a copy of the ordinance and what was treated as a

transcript of the record of a previous suit * Mr. Justice PITNEY delivered the opinion brought by the city against the first New of the Court.

York company in a state court of Kentucky to On December 5, 1895, the council of the city recover license taxes under the ordinance for of Newport, Kentucky, passed an ordinance two years ending December 5, 1898, resulting purporting to grant to the Postal Telegraph in a judgment in favor of the city, which was Cable Company and its successors, subject to affirmed by the court of appeals, opinion recertain limitations, the right and privilege ported in 76 S. W. 159, 25 Ky. Law Rep. 635; of erecting poles and stretching wires over the judgment being pleaded as a bar to the the streets and alleys of the city necessary to defense set up in this action. the establishment, operation, and mainte

The pleadings in the present suit are so nance of a telegraph system connecting that involved and prolix that a particular recital* city with other towns and cities. Among its of them would be tedious. We will present a provisions were these: (a) That unless the sufficient summary to show the questions company should within thirty days, and in raised and how they were disposed of. writing, accept the grant subject to the limi.

The city alleged the passage of the orditations, the grant should become void; (b) that nance, and averred that shortly after its pasnothing in the ordinance should be construed sage and in pursuance of it the first New as granting a franchise to the company; and York company erected poles and strung wires (c) that the company should pay to the city in the streets, and established, operated, and a "special license tar” of $100 per annum. maintained a telegraph system in the city, This company was a New York corporation and thereby the ordinance became a binding having the same name as that of plaintiff in contract between the city and the company; error, and will be referred to hereinafter as but that defendant had failed and refused to the first New York company.

pay the sum of $100 per annum for the severOn or about January 1, 1897, that company al years in question, in disregard of its conconveyed its property in the state of Ken

tract. tucky, including all its rights and interests in

Defendant's answer alleged that at the time the city of Newport, to another New York of the enactment of the ordinance defendant corporation known as the Commercial Cable was not in existence, and that the Postal Company; in 1898 this company conveyed Telegraph Cable Company therein referred to the same property and privileges to another was the first New York company; denied that New York corporation*known as the Commer- either that company or defendant in any man. cial Cable & Telegraph Company; and on or ner or at any time accepted the ordinance, or about December 31, 1900, all of said rights that the same became a binding contract beand property were transferred and conveyed tween plaintiff and either company; admitted by the latter company to the plaintiff in error, that shortly after its passage the first New the Postal Telegraph Cable Company, which York company began the erection of its poles is a corporation of the state of Kentucky, and and wires and the establishment of its telesince then bas owned and operated the prop- graph system, but denied that this was done erty.

under or by virtue of the ordinance; alleged In 1908 suit was brought in a state court on the contrary that that company did not acby the city against plaintiff in error (herein-cept but declined to accept the ordinance, as after referred to as defendant) to recover plaintiff well knew, and that the poles were "license taxes” as specified in the ordinance erected and wires strung in and over the for a series of years, and a judgment in favor streets and alleys of the city by the company of the city for the years 1903 to 1907 inclu- under another and independent claim of sive was sustained by the Court of Appeals of right, as plaintiff well knew; that that comKentucky, notwithstanding certain conten- pany had accepted the Act of Congress aptions of defendant based upon the provisions proved July 24, 1866 (chapter 230, 14 Stat. of the Constitution of the United States re- 221, Rev. Stat. U. S. $ 5263 et seq. (Comp. St. specting the regulation of commerce among 1916, $ 10072 et seq.]), and acts amendatory the states and the establishment of post of-thereof, and had complied with their terms, fices and post roads (article 1, § 8, pars. 3 and and thereby obtained the right to construct, 7), upon the Act of Congress of July 24, 1866 maintain, and operate its lines of telegraph chapter 230, 14 Stat. 221, Rev. Stat. U. S. 8 over and along all post roads of the United

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States; that under section 3964, Rev. Stat., that the alleged contract was beyond the U. S. (Comp. St. 1916, & 7456), and the Act of powers of the city, ultra vires, and void. Congress of March 1, 1884 (chapter 9, 23 Stat. Defendant further alleged that other tele3 [Comp. St. 1916, & 7457]), all-the streets and graph companies and telephone companies alleys of the city of Newport were such post were using the streets and alleys of the roads, and by virtue of these provisions of the city for poles and wires in a manner sublaws of the United States said New York stantially similar to their use by the first company was entitled to erect its poles and New York company and by defendant; that string its wires over and along the streets none of these companies was subject to the and alleys of the city, and did so under that payment of any license tax or was required authority and not in pursuance of any accept- to pay or agreed to pay any compensation to ance of the ordinance, nor under any contract the city by way of rental, license, or otherwith the city.

wise; that the attempted exaction from dePartly in an amendment to the answer, fendant of $100 per annum was an unreason. and partly in a rejoinder filed at the same able discrimination between defendant and time in response to plaintiff's reply, defendant other telegraph and telephone companies, set up the conveyance by said New York com- contrary to the laws of the state of Kentucky pany on or about January 1, 1897, of all its and in violation of the Constitution of that property, rights, and lines of telegraph in the state, and also in violation of the first secstate of Kentucky and elsewhere, including tion of the Fourteenth Amendment to the its rights over the roads, streets and alleys Constitution of the United States; and also in said state and in the various cities and mu- that it was an unreasonable, excessive, and nicipalities thereof, to the Commercial Cable unlawful exaction in violation of those proCompany, a corporation of the state of New visions of the Constitution of the United York; set up the subsequent conveyances States conferring upon Congress the power of the same property as we have recited them, to regulate commerce among the states and terminating with the conveyance to the de- to establish post offices and post roads (artifendant on or about December 31, 1900; al cle 1, § 8, pars. 3 and 7), and the laws*enact-leged that from January 2, 1897, until June ed in pursuance thereof, and was therefore 30, 1898, the Commercial Cable Company of null and void. New York operated the Kentucky lines in the In what was entitled a "second amended name of the Postal Telegraph Cable Company petition," but was ordered by the court to of New York; that from June 30, 1898, until be taken as a reply to defendant's answer, December 31, 1900, the Commercial Cable & plaintiff set up in substance that in a suit Telegraph Company of New York did the brought by it against the first New York same; and that since the last mentioned date company on September 8, 1899, the city aldefendant had owned and operated and still leged that the ordinance of December 5, owned and operated said lines, and was en- 1895, was a contract consented to by that tirely separate and distinct from the first New company and under which it derived and York company and had no relations with it; enjoyed its privilege to erect pol and that since the last mentioned date defendant string wires in the streets and alleys of the had been engaged in operating and maintain- city and establish and maintain a telegraph ing a system of telegraphy in the state of system therein, that in consideration of this Kentucky between cities and towns in that right and privilege the company agreed to state and, in connection with other companies, pay to the city the sum of $100 per year as between various other cities and towns in specified in the ordinance, and that under other states; that before the last mentioned its terms $200 was due to the city for two date defendant had accepted the Act of Con- years ending December 5, 1898, for which gress of July 24, 1866, and had complied with recovery was prayed; and that in this action its terms and ever since had been subject a judgment was rendered in the trial court thereto, and thus had obtained the right to in favor of the city for he amount claimed, construct, maintain, and operate its lines of which was affirmed by the Court of Appeals telegraph over the streets and alleys of the of Kentucky, its opinion being reported in city of Newport, and was doing so pursuant 76 S. W. 159, 25 Ky. Law Rep. 635. The same to this right and not by virtue of any contract pleading alleged that the Postal Telegraph with the city.

Cable Company of Kentucky, defendant in Defendant in its answer further set up the present action, was the same Postal that the payment of $100 per annum men- | Telegraph Cable Company that was organtioned in the ordinance was not imposed as ized under the laws of the State of New a rental but as a special license tax; and York and was defendant in the former acthat it was not a reasonable rental or a tion, or that defendant was the lessee or reasonable or lawful exaction as a license successor, and succeeded to all rights, tax; also that the ordinance was void and privileges, and duties, of the defendant in inoperative because said right and privilege the former action, and was using, operating, was not conferred in accordance with sec- and controlling the same poles, wires, and tion 164 of the Constitution of the common- equipment as those used, operated, and conwealth of Kentucky then in force, and sec- trolled by the defendant in the former action 3068. Kentucky Statutes; and also | tion; and plaintiff pleaded said proceedings

695.

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