Supplemental Opinion. (Filed December 26, 1944.) The people of the state of Montana have provided in their Constitution that a majority of the justices "shall be necessary to form a quorum or pronounce a decision." (Article VIII, sec. 5.) On December 15, 1944, four of the five justices comprising this court concurred in the per curiam decision herein and, to furnish an opportunity for the remaining Justice to prepare his dissent thereto, ordered that the court's decision be not promulgated until December 19, 1944, on which date the decision was released.
On December 21, 1944, MR. JUSTICE MORRIS submitted to the court a dissenting opinion which goes far beyond the legitimate purposes of a dissent and far beyond the issues and the record in this contempt proceeding.
This proceeding was commenced by the presentation to the court of an affidavit charging respondent with contempt. The one issue was whether respondent's conduct there charged constitutes contempt.
The accusatory affidavit against Attorney Niewoehner herein *Page 475 cannot properly be turned into an information or indictment against this court or against any of its members. It is the respondent's conduct that is the issue and not that of any other person.
Tipton v. Sands, 103 Mont. 1, 60 P.2d 662, 670, 106 A.L.R. 474, was a proceeding instituted under the Corrupt Practices Act to contest the election of Walter B. Sands as chief justice of this court. In his pre-election campaign Mr. Sands published and circulated advertising matter wherein he stated that $1500 paid to each justice as part of his annual salary under section 378, Revised Codes, enacted by the legislature in 1899, is unearned and unconstitutional under section 30 of Article VIII of the Constitution of Montana. The district court of Lewis and Clark county rendered its judgment in favor of the defendant Sands and an appeal was taken to this court. On the appeal all the justices of this court except Mr. Justice Morris disqualified themselves and declined to participate in the case and district judges were called to sit in their stead. The case was heard by Justice Morris and four district judges. The majority opinion held Chief Justice Sands' contentions without merit but that they were made in good faith, and therefore decided the contest in his favor. In his dissent in the case Mr. Justice Morris said:
"The majority opinion holds, in substance, that the contestee was guilty of violating the Corrupt Practices Act as charged, but affirms the trial court for the alleged reason that there is substantial evidence in the record to support the findings of the trial court that the violation of the act by the contestee was made in good faith. No other reasons are assigned for affirming the judgment. * * *
"The question inevitably arises, Why did not the contestee, being under the obligation due from all prudent men under such circumstances, institute a proper court action to test the constitutionality of the statute relating to the salaries of justices? He testified that he had believed the law invalid for several years, and the record shows he had had an extended *Page 476 controversy with the secretary of state over the correct amount of the filing fee when he became a candidate for Chief Justice which the secretary called upon the Attorney General to solve, and contestee was advised by the Attorney General that the legal salary was $7,500. He undertook to force the secretary of state, not by a legal action, but by much contention, to accept a filing fee based upon a $6,000 salary. As a lawyer he must have known the secretary could not accept a fee fixed on any other salary than the amount recognized as legal and drawn by every justice for the last 30 years; yet in the face of such presumed knowledge contestee continued to agitate the matter, and paid the extra $15 of the fee under protest. The resulting advertising arising from the newspaper notoriety following was no doubt considered good for a candidate just launching a campaign. It is quite obvious that contestee believed this salary question was his prize campaign issue, as it was given first place on all the four lots of campaign cards gotten out and circulated by him. He testified he discussed the issues over the radio and on the stump. So bythis line of evidence we arrive at the obvious answer of whycontestee did not test the matter in court instead of using it ashis prize issue. A special proceeding could have been brought on an agreed statement of facts directly in the Supreme Court, and being an action that was entitled to preference, argued and decided long before the general election. But by that course the candidate would have been deprived of his prize campaign issue and many a vote would, in all probability, be lost. The purposeis revealed and the plea of good faith is thus stripped of its garb in which it had been decked out for public consumption as an issue of economy, and in its nakedness we behold a glaringpolitical trick, spread abroad over the state impugning theintegrity of every individual who had occupied a place on theSupreme Bench of the state in the last 30 years. `Good faith'demanded that contestee submit the question to the regularlyconstituted tribunals of the state for adjudication beforecharging that all other members of the court were filchingthousands of dollars from the state treasury illegally. It must be remembered *Page 477 that he did not say that, in his opinion, the law was unconstitutional, but made the bold, unqualified statement that $1,500 was `unearned and unconstitutional.' From the statement on all his cards he might just as well have said, `all Justices for the last thirty years have stolen $1,500 each, each year for thirty years out of the state treasury.' He made the positive statement with such assurance as to carry the notion that the question was determined and fully settled. He assumed toannounce a conclusion with all the positiveness of a deliberatecourt decision and for the avowed purpose of securing votes, and then, when haled into court to answer his false statements, comes here on a plea of good faith! * * * to contend that the contestee in this case should be excused for a plain and palpable violation of the law because he believed it invalid is to cheapen and degrade the court of which the contestee is a member, and to make a plea of ignorance a shield for corruption." (Emphasis ours.)
The dissent argues that two of the Justices "were disqualified under section 8868, Revised Codes" by reason of their interest in the question of whether their receipt of compensation as referees violated section 30 of Article VIII of the Constitution. This is the same constitutional provision which in Tipton v. Sands, supra, the defendant Sands had accused "all Justices for the last thirty years" including Justice Morris, of violating and which provision was regarded by Justice Morris as the chief issue in that case, yet he did not there consider himself disqualified nor did he deem that section 8868, Revised Codes, had any application whatever. Here however he considers two Justices disqualified because the attempt has been made to inject those issues which are obviously extraneous and cannot be determined.
Before this contempt proceeding came on for hearing, Mr. Justice Morris stated in writing that the facts which the respondent Niewoehner set forth in his motion to correct the minutes "are true and are a complete defense against any proceeding in contempt." Notwithstanding such positive unqualified commitment the dissenting opinion recites that, "The supposition *Page 478 that by reason of my dissent to the issuance of the citation I was disqualified is untenable."
The dissenting opinion contains various inaccuracies and adverts to numerous matters which nowhere appear in the record and which have no bearing on the issues of this contempt proceeding. Any attempt to discuss them would unduly extend this opinion and serve no judicial purpose.
Respondent has indicated his intention to seek a review of this decision by the United States Supreme Court. Will he there present his petition to the Clerk of that court at nine o'clock some Saturday morning; demand that he be heard in oral argument thereon; fix ten o'clock the same day for hearing; demand that the marshal have the justices on the bench at that time; and, in the event he is not then permitted to orally argue his cause, will he, on the following Monday, mail to every lawyer admitted to practice before the United States Supreme Court a letter complaining of his treatment? To ask this question should be to answer it. Such conduct cannot be tolerated. It is contempt.