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June 10, 1918



White, McKenna, Holmes, Van Devanter, Pitney, McReynolds, Brandeis; Day and Clarke took no part in the decision of this cause.

Author: White

[ 247 U.S. Page 410]

 MR. CHIEF JUSTICE WHITE delivered the opinion of the court.

This case is before us on error to review the action of the court below affirming a judgment of the trial court holding the defendants guilty of a summary contempt and imposing a fine upon them both. There is also pending an application for certiorari made upon the assumption that if jurisdiction on error was wanting the case involved questions of such importance as to justify our interposition.

We are of opinion that a motion to dismiss the writ of error must prevail since it is settled that a conviction for a criminal, although summary, contempt is for the purposes of our reviewing power a matter of criminal law not within our jurisdiction on error. Cary Manufacturing Co. v. Acme Flexible Clasp Co., 187 U.S. 427, 428; O'Neal v. United States, 190 U.S. 36, 38; Bessette v. W. B. Conkey Co., 194 U.S. 324, 335;

[ 247 U.S. Page 411]

     the creditors filed a supplemental bill making the city a party to the suit and asking preliminary and permanent injunctions against the city. On the same day, the company also filed its bill against the city seeking to restrain the enforcement of the ordinance both by preliminary and final injunctions.

At this juncture and before action had been taken by the court, The Toledo News-Bee, a daily paper, published in Toledo by The Toledo Newspaper Company, began publications adverse to the rights asserted against the city by the creditors and the railway company and in no uncertain terms avouched the right of the city to have enacted the ordinance which the suits assailed and challenged the right of the court to grant the relief prayed. On March 30th the court, after hearing on the applications for preliminary injunctions, denied them on the ground that the assailed ordinance was not self-enforcing, that it required an application of judicial power to put it into effect and that it would be time enough when the city invoked such relief by such power to assert by way of defense the matters which were made the basis of the prayer for affirmative relief in the pending controversies.

In September following, under a new prayer, the court reconsidered its action and awarded the preliminary injunction prayed on the ground that as the city had in the meanwhile treated the ordinance as enforceable without resort to judicial process and was acting against the company and the creditors and their alleged rights on that assumption, the duty was cast upon the court of protecting such rights pending the decision of the causes. In the meanwhile, however, the agitation over the questions which the suits involved had unremittingly continued and was beyond doubt fanned by continuous publications on the subject in the stated newspaper into a more exaggerated -- not to use a stronger word -- and

[ 247 U.S. Page 413]

     vociferous expression which embraced the whole field; that is, not only the relative rights of the city and the corporation, but also, at least by indirection, the duty and power of the court and its right to afford any relief in the matters before it.

Immediately preceding the action of the court taken on September 12th granting the preliminary injunction, and while that subject was before it for consideration, an attachment for contempt was issued against one Quinlivan for words spoken by him at a meeting of a labor union concerning the court and the matter which it was then engaged in considering. And a few days following, on September 15th, a similar process was issued against the managing editor of the Toledo News-Bee for publications written by him in the paper concerning the action of the court in the Quinlivan case.

On September 29th following, the court directed the district attorney to present an information for contempt against the newspaper company and its editor for the publications which had been made concerning the controversy, and on October 28th, giving effect to this order, an information was filed charging the newspaper company and the editor with contempt. The charges were stated in three counts. The first embraced matters published during the pendency of the suit from the time, March 24th, when the action was taken to make the city a party and the respective preliminary injunctions were prayed, up to and including the time when the ultimate action of the court on the subject in September was taken. The two other counts related, the one to publications made at the time of and concerning the attachment for contempt against Quinlivan, and the other to publications concerning the attachment against the managing editor. The defendants demurred on the ground that the information stated no act within the power of the court to

[ 247 U.S. Page 414]

     punish for contempt, and, on the overruling of the demurrer, they answered, not disputing the publications charged, but challenging the innuendoes by which in the information they were interpreted and reiterating the denial of all power in the court to punish.

Coming to dispose of the information, the court found both of the defendants guilty under all the counts and imposed upon both a punishment by way of fine. The court sustained its authority to so act by an elaborate opinion which, after stating the evidentiary facts -- the publications and their environment --, drew from them ultimate conclusions of fact and held that from such conclusions it clearly resulted that the publications complained of constituted a contempt within the power of the court to punish, because, by their terms, they manifestly tended to interfere with and obstruct the court in the discharge of its duty in a matter pending before it. Condensing for the sake of brevity and looking at the substance of things, these conclusions of the court embraced four grounds: (a) Because, leaving aside the attempted ridicule, not to say vituperation, concerning the court which was expressly or impliedly contained in the publications, their manifest purpose was to create the impression on the mind of the court that it could not decide in the matter before it in any but the one way without giving rise to such a state of suspicion as to the integrity or fairness of its purpose and motives as might engender a shrinking from so doing. (b) Because the publications directly tended to incite to such a condition of the public mind as would leave no room for doubt that ...

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