I cannot concur in the opinion by which a writ of mandamus was issued to Justice Clark and myself compelling us to certify our disqualifications to sit in this cause.
In obedience to said writ I did, on the 4th day of February, 1927, so certify my disqualification to His Excellency, the Governor, as I was commanded to do.
The material facts are as follows:
On the 13th day of January, 1927, the respondent Martin, who had been formerly cited for contempt by the Supreme Court of Oklahoma, in this proceeding filed a motion to disqualify six certain Justices of this court, including myself and Justice Clark. As to myself, the grounds alleged were: (1) That he, the respondent, was attorney of record of one Owens in various litigation growing out of cause No. 13646. known as the Riverside Oil Case; (2) that Owens, his client, had sued me (because of my concurring in an opinion against him), and I had sued Owens, his client, because I conceived that he bad libeled me in an article published in the Tulsa World.
This contempt proceeding against Martin, *Page 39 sole, grew out of a pleading filed in this court by him, and he is charged in effect with having thereby insulted, by scurrilous statements therein, Mr. Justice Mason and this court in denying the validity of the judgment and opinion of this court in cause No. 17409, an ancillary action to the Riverside Case.
On the 13th day of January, 1927, in this cause No. 18080, there was filed a motion to disqualify certain Justices of the Supreme Court of Oklahoma, including Justice Clark and myself. Said motion on said date was by said court overruled, and on said date I caused to be filed in said cause a statement wherein it was said:
"If in fact a contempt has been committed upon and against the Supreme Court, of which I am a member, in this cause, it is a direct contempt and it is my duty to dispose of it."
Thereafter, on the 1st day of February, 1927, there was filed in said Supreme Court in cause No. 18123, by the respondent, Martin, a motion and application for writ of mandamus seeking to compel Justice Clark and myself to certify our alleged disqualifications in cause No. 18080, which said motion and application was by said court, on the 2nd day of February, 1927, after hearing thereon, denied, Justice Clark and myself not participating therein.
On the 13th day of January, 1927, seven Justices of the Supreme Court desiring not to participate further in cause No. 18080, and having voluntarily certified their disqualifications to sit further, and seven appointments of members of the bar having been made by the Governor, in accordance with law, to sit in cause No. 18080, and on the 2nd day of February, 1927, the Supreme Court in said cause being so constituted, there was again filed by said respondent in cause No. 18080 a motion to disqualify Justice Clark and myself, which said motion on said 2nd day of February, 1927, was by said court considered and overruled. Thereafter, on the 3rd day of February, 1927, there was again filed in said cause No. 18080, a motion and application for writ of mandamus which sought to compel Justice Clark and myself to certify our alleged disqualifications in said cause, which motion and application for writ of mandamus was by a majority vote of said honorable court granted, and in open court the clerk of the Supreme Court was directed to issue said writ of mandamus to Justice Clark and myself, directing and compelling us to certify our disqualifications.
I take it that the majority opinion is based, as to procedure, upon section 2632, Compiled Oklahoma Statutes 1921, which is as follows:
'No Justice of the Supreme Court of this state or judge of the Criminal Court of Appeals shall participate in the decision of any cause in such court appealed thereto from a lower court of said state, in which court such justice or judge was judge presiding at the trial of such cause; and the same qualifications shall apply to the members of the Supreme Court and Criminal Court of Appeals as to other courts of record; and whenever any member of either of said courts is disqualified, the same shall be entered of record in such court and such disqualifications of such member shall forthwith be certified by the clerk of such court to the Governor of the state, who shall appoint some members of the bar of the state, possessing the same qualifications as the members of such court, to sit as special judge in said cause."
Considering particularly the clause therein contained "and the same qualifications shall apply to the members of the Supreme Court and Criminal Court of Appeals as to other courts of record," it manifestly refers and relates to section 2629, Compiled Oklahoma Statutes 1921, which is as follows:
"No judge of any court of record shall sit in any cause or proceeding in which he may be interested, or in the result of which he may be interested, or when he is related to any party to said cause within the fourth degree of consanguinity or affinity, or in which he has been of counsel for either side, or in which is called in question the validity of any judgment or proceeding in which he was of counsel or interested, or the validity of any instrument or paper prepared or signed by him as counsel or attorney, without the consent of the parties to said action entered of record: Provided, that the disqualifications herein imposed shall not exclude the disqualifications at common law."
I shall consider these sections of the statute in pari materia. I desire particularly to analyze "an interest." There is no contention that I am related to any of the parties within the fourth degree of consanguinity or affinity, etc., as contained in said section, or that I have been counsel for either side, or that as counsel or attorney I have prepared an instrument or paper the validity of which is being questioned, nor in fact is the validity of any paper being questioned.
What is an interest such as would disqualify a Justice of the Supreme Court in a civil or criminal cause or proceeding pending before him? *Page 40
Can it be said that should the respondent be acquitted it would affect in any way a suit brought by his client, Mr. Owens, in the district court of Tulsa county against Justice Clark and myself? Or could it affect in any way a suit brought by myself in the district court of Oklahoma county against Mr. Owens and others? Could it be said that if the respondent is found guilty of contempt, that such finding would in any way affect Justice Clark or myself, or the respondent, or his client in such suits as above mentioned? Should the respondent be fined and required to pay a sum of money, would Justice Clark or myself receive a penny of said fine? Should he be otherwise punished, how would it inure to our benefit?
Neither the Constitution, the statute, nor the common law recognizes an imaginary interest in the result of lawsuits.
The English practice was commented on in the case of Ex parte Fairbank Co., 194 Fed. 978, as follows:
"At the common law substantial or direct interest in the event of litigation, or close ties of blood or affinity, were the only causes of disqualification of a judge. * * * These are the only causes for the disqualification of a judge under the common law of England as now administered in England." Fulton v. Longshore, 156 Ala. 611, 46 So. 989.
Hence at common law a judge could not be recused in even civil or criminal matters because of bias or prejudice alleged or proven.
This is an action in the name of the state of Oklahoma against respondent, the result of which can only inure to the benefit of the people of the state of Oklahoma. It is the right of the people to cause their courts to be treated with respect. It is the public interest, and not the personal pride of the judges, which establishes this inherent power of courts to punish for contempts. It is the public will that they command respect and obedience to their lawful orders and mandates; without that right and will enforced the law would become a dead letter and fraud and violence would prevail. As judges of this court we would be unmindful of our trust, we would become traitors to the people, if we did not demand the respect due a judicial tribunal over which we have been commissioned to preside by the sovereign citizens of the state of Oklahoma.
Rapalje on Contempts, p. 110, states:
"It may safely be laid down as a general rule that statutory provisions relative to change of venue have no application to proceedings to punish contempts, unless such proceedings are expressly included eo nomine, in the written law."
The Supreme Court of the United States in Bessette v. Conkey,194 U.S. 324, 48 L.Ed. 1005, laid down the rule in a contempt case that a contempt is neither civil nor criminal in fact, but sui generis. These words are used by Mr. Justice Brewer, who delivered the opinion:
"A contempt proceeding is sui generis. It is criminal in its nature, in that the party is charged with doing something forbidden, and, if found guilty, is punished. Yet it may be resorted to in civil as well as criminal actions, and also independently of any civil or criminal action."
And further:
"It is true they are peculiar in some respects, rightfully styled sui generis. They are triable only by the court against whose authority the contempts are charged."
See O'Neil v. United States, 190 U.S. 36, 47 L.Ed. 945, 23 Sup. Ct. 776.
Contempt is not a crime in the state of Oklahoma, for in addition to the general rule as expressed by the Supreme Court of the United States and uniformly followed in the absence of governing constitutional or statutory provisions, we have, first, a statute, section 2291, Compiled Oklahoma Statutes 1921, which provides:
"A criminal act is not the less punishable as a crime because it is also declared to be punishable as a contempt"
— thus recognizing a complete and clear distinction between acts which may constitute a crime and acts which constitute a contempt. Second, by section 20, article 2, of the Constitution,
"In all criminal prosecutions the accused shall have the right to a speedy and public trial by an impartial jury in the county in which the crime shall have been committed."
To paraphrase: "In all criminal prosecutions the accused shall have the right to a trial by an impartial jury." Thus, if contempt is a crime, the accused is entitled to a jury trial. The section is all embracing. But the framers of the Constitution clearly intended that contempts should not be classed as crimes, for by article 2, section 25, they specifically left to the Legislature the duty of defining contempts and the duty of regulating the proceedings and punishment *Page 41 in matters of contempt, and provided a jury trial, as to the guilt or innocence of the accused, only in case of a person being accused of violating or disobeying, when not in the presence or hearing of the court, an order of injunction or restraint. Thus clearly considering contempts separate and apart from crimes.
In Ex parte Fisk, 113 U.S. 713, 28 L.Ed. 1117, 5 Sup. Ct. Rep. 724, it is said by the Supreme Court of the United States in a contempt case:
"This principle has been uniformly held to be necessary to the protection of the court from insults and oppression while in the ordinary exercise of its duties, and to enable it to enforce its judgments and orders necessary to the due administration of law and the protection of the rights of suitors."
I am interested to the extent that the honor and dignity of this court shall be respected. That the orders and mandates of this court shall be obeyed. And when in the course of duty, under my commission from the people, it becomes necessary by contempt proceedings or otherwise to protect the property rights of the citizens of this state as against pirates on the high seas of business, when even and exact justice has been done as between litigants, then to that extent and to that extent alone am I interested.
An interest sufficient to disqualify a judge is well considered in a case presented by counsel for the respondent, Trustees Int. Imp. Fund v. William Bailey, 10 Fla. 213. The last paragraph of the syllabus is as follows:
"A judge, as well as a juror, must be immediately interested in the very issue in question, which interest must not be uncertain or speculative. A mere speculative possibility of such an interest is no sufficient ground for a principal challenge to a juror or judge."
In the case of Sanborn v. Fellows, 22 N.H. (2 Foster) 481, there was a relative of the judicial officer who was related to one of the parties.
In the case of Fowler v. Byers, 16 Ark. 196. the Supreme Court of that state decided that a circuit judge was not disqualified to preside where he was related by affinity within the constitutional degrees to one of the parties in the cause who was merely a trustee.
It is said in the case of Trustees Int. Imp. Fund v. Bailey, supra:
"Does a speculative interest — which may or may not exist one way or the other, as in this case, for it cannot be known whether the company would be most benefited if the fund were or were not enjoined upon the application — enter the mind of the judge so as to influence him?
"How could he be influenced, when he neither knows, nor can know, how he is to be benefited?
"The interest which disqualifies is a legal interest, curtain and dependent on the result of the case."
And the said case is concluded by saying:
"It must be obvious that the interest of the said railroad company, in the case at bar, is speculative and uncertain. The said road having no interest in the result of this suit, or the issue presented, it follows that the said Chief Justice and said Associate Justice are not disqualified to sit in this cause, and hear and determine the matters in issue: and, as they are not disqualified, a circuit court judge would not be competent to sit."
"The order for calling in circuit court judges cannot, in law, be made."
In the last cited case the two Justices of the Supreme Court, as shown on p. 227, severally submitted for the decision of the court whether under this statement of fact an order should be made calling in two circuit court judges to sit on the hearing of the application. And it is said on p. 228:
"It will readily be seen that to render the circuit court judge eligible and competent to sit as one of the Supreme Court, it is absolutely necessary the retiring Justice of the Supreme Court should be disqualified or disabled from hearing and determining the cause. This disqualification must be a legal one, not an imaginary one, nor one of feelings of delicacy, nor of mocked inconsistency, but must be valid in law."
In that case the Supreme Court of Florida did not say that the Justices questioned were incompetent to sit. In fact they held that the circuit judge who had been drawn in to sit was incompetent by reason of the fact that the justices were competent. It was the circuit judge's right to sit that was questioned and the Supreme Court of Florida therein proceeded by request of the Justices challenged to determine what an interest was that ought under the law to disqualify a judge.
In Waterhouse v. Martin, Peck's Reports, vol. 7, p. 374. likewise cited by counsel for respondent, wherein there were three judges comprising the Supreme Court of Tennessee, and wherein their Constitution provided *Page 42 by article 5, section 8: "No judge shall sit on the trial of any cause where the parties shall be connected with him by affinity or consanguinity, except by consent of parties," that court proceeded to define the term "affinity" and the limits to which it applied as affecting the interest of a judge. It was said, p. 376:
"The objection to a judge for being connected by affinity with one of the parties need not proceed from either of parties, for he is ipso facto disqualified by the Constitution, till both parties agree that he shall sit."
Mr. Moss, counsel for respondent, on p. 48 of the record of this proceeding, in speaking of this Tennessee case, said:
"The disqualified member had rendered a written opinion, holding that he was not disqualified, and the other two members, without any constitutional or statutory authority, upon rehearing, held that the member who had adjudged himself to be qualified was disqualified."
Counsel in said contention made a false statement of fact and of law in this, to wit: (1) No member of the said court was ever disqualified in said case. (2) There was no rehearing reported in the case; the opinion was a composite one after the early English fashion. (3) Two other members of the court did not write any opinion wherein it was held that the member who adjudged himself qualified was disqualified.
I do not care to comment upon the attorney's statement as to what this case held; it speaks for itself.
The Supreme Court of Tennessee in that case held that the exceptions made to Judge Haywood by reason of the fact that a litigant was connected with him by affinity were not valid and that the judges present could constitutionally and legally form a court for the decision of the subject-matter of the litigation.
The Constitution of Tennessee did not fix the degree, but left it to the court to determine the degree of affinity necessary to exclude a judge (p. 380).
In the Waterhouse Case it is said:
"If Judge Haywood (Justice of the Supreme Court) was incompetent, by reason of the affinity, Judge McKinney (Judge called to sit) was competent under his commission, to fill the court; and vice versa, acting either way, an error might be committed, and the judgment rendered, should there be one, stand not only as a monument of the imbecility of the court, who improperly might act, but involve officers and the judges making it, in difficulties."
Judge Whyte, on page 382 of the opinion, said:
"This is the mandate of the people of Tennessee to every judge of the state, given by the most solemn of instruments, the Constitution, and in its nature it must be a mandate directed to him personally, to be executed by him according to his own judgment, and not dependent on the judgment or opinion of others. If the import of the mandate is dubious, as the argument at the bar on its construction implies, the very nature of the office of judge recognizes no superior or intermediate power between the mandate and himself, under, or by means of which, a construction of it is to be given for his government, or by which his judgment therein may be directed, controlled, or superseded. Its execution is likewise personal and solely with himself, and incapable of being resisted by the interposition of others, or of being omitted, and its omission excused or justified by the like interposition. As he is the sole judge, so he has the whole responsibility. If, in this respect, he disobeys or transgresses the Constitution, he is answerable by impeachment, and it would be an argument addressed to the mercy, not to the justice, of the court of impeachment, that such and such was not his own judgment and act, but the judgment and act of two other judges of equal powers and authority."
On page 383, it is said:
"The present question is, Have you a court; have you one, two, or three judges; or have you any judge to constitute this court? No property depends on this question at present, but judge or no judge depends upon it, and it can only be solved bythe judge himself, and that upon his own responsibility, whether he is so or not by the Constitution."
On page 384, the same being the addenda to the opinion delivered the next day, on further argument there was pointed out the manner in which objections to a judge might be stated and the manner in which the individual judge of his own motion might, if in fact he was legally disqualified, so certify his disqualifications.
On page 385, it said he cannot be disqualified by the opinions of others. It is his duty to sit by his own judgment alone, upon his own responsibility. It never would do, on the one hand, for a judge to shrink from a duty and shelter himself under an opinion of a majority allowing his disqualifications, or. on the other hand, to be driven from the discharge of his duty by the opinion of a like majority denouncing him disqualified. *Page 43
"Many cases might be put, but which I deem unnecessary, to shew, that if a majority has the physical power of qualifying or disqualifying the minority, there is no calculating the consequences. By this mode, a judge might be compelled to sit upon, and adjudicate, the cause, when his own son, or his own father, is a party. These are extreme cases, it is true, and not likely to happen, but they are within the principle, and being so, they are the best kind of cases to test the correctness of that principle, for they present it naked and undisguised, free from those softening circumstances, which in less strong cases, might veil its innate deformity, but that, at some time or other, on a proper occasion, would produce the most baneful effects on society."
On page 386 of said cause it is stated that, in a subsequent part of the term, when the cause was about to be called, Judge Haywood delivered the final opinion of Judge Peck and himself as follows:
"That it is the duty of this court, and belongs to it only, to decide the meaning and extent of the term 'affinity,' as used in our Constitution."
It is said in the final opinion of that court, p. 386:
"Two judges may not exclude a third from his seat: but they may fix the rule by which his conduct is to be regulated. This court, though it will not say to a justice of the peace or any inferior judge, you shall not sit in any particular cause, may yet set before him the rule, to which it is expected he will conform."
They fixed the rule of affinity (p. 389), and the extent to which it would apply (p. 391) by saying:
"There is no name for the degrees of relationship between the consanguinei of the wife and those of the husband; because there is no such relationship to be counted."
So that the judge so challenged might govern himself accordingly and at his peril. They concluded by saying:
"We are therefore of opinion that the spirit and meaning of the term 'connected with him by affinity,' used in the Constitution, ought not to be extended beyond the definite meaning which it has in writs, statutes, and other legal instruments; that the exceptions made to Judge Haywood are not valid, and that the present judges can constitutionally and legally form a court for the decision of this cause."
The decision of the court on the subject-matter of the litigation was rendered by Judge Haywood, so challenged. Neither the Florida nor the Tennessee citation concerned a contempt.
I here say that neither case cited by counsel for the respondent supports their position, but that these cases are directly and diametrically opposed to their position and contention, and, further, that there is no case in American jurisprudence in which it is said that it is the duty of a court and judge against whom a contempt is committed to disqualify, unless such judge is disqualified ipso facto by constitutional or statutory provision.
A judge should yield to no man in loyalty to his duty. He should recognize but one master, the law, but one voice, justice. This oath, consecrating him to the sacred observance of the obligations of his high office, was no meaningless formality. In the conscientious performance of his trust he may safely adopt the language of a great English judge as his rule and guide:
"The lies of calumny carry no terror to me. I will not avoid doing what I think right, though it should draw on me the whole artillery of libels — all that falsehood and malice can invent — or the credulity of a deluded populace can swallow."
In the Circuit Court of the United States, District of Columbia, in re Levi S. Bu r. 1 Wheeler, 503 (1823), there was quoted from the Supreme Court of the United States the reiteration of the rule as to contempt as announced in the case of Anderson v. Dunn, 6 Wheat. 207, decided by the last-named court in 1921, and reported by Mr. Wheaton, as follows:
"In that case, the judge delivering the opinion of the court says: 'that the safety of the people is the supreme law,' not only comports with, but is indispensable to, the exercise of those powers in their public functionaries, without which that safety cannot be guarded. On this principle it is that courts of justice are universally acknowledged to be vested, by their very creation, with power to impose silence, respect, and decorum, in their presence, and submission to their lawful mandates; and (as a corollary to this proposition) to preserve themselves and their officers from the approach and insults of pollution.
" 'It is true that the courts of justice of the United States are invested, by express statute provision, with power to fine and imprison for contempts; but it does not follow from this circumstance that they would not have exercised that power without the aid of the statute, or not in cases, if such should occur, to which such statute provision may not extend; on the contrary, it is a legislative assertion of this right and incidental to a grant of judicial power, and can only be considered as an instance of adundant caution, or a legislative declaration that *Page 44 the power of punishing for contempt shall not extend beyond its known and acknowledged limits of fine and imprisonment.' "
Further on it is said:
"The consequences of the want of such a power must be obvious to every reflecting mind. If the laws be not executed, anarchy will be the immediate consequence, and anarchy too often ends in tyranny. If the laws be not respected, it will be difficult, if not impossible, to execute them. * * * In order to obtain that countenance and support, they must deserve respect, and that court which may, with impunity, be treated with contempt, will inevitably be contemptible even in the eyes of the good and the virtuous. Their judgments will not be executed, the law will become a dead letter, and fraud and violence will prevail. * * * "It is not the right of the courts only, but it is theright of the people to cause their courts to be treated withrespect. It is the public interest, and not the personal pride of the judges, as suggested at the bar, which claims this power for the courts. As individuals, we claim no more respect than our individual characters deserve; but as judges of this court,we should betray our trust — we should become traitors to the people, if we did not claim the respect due to a judicial tribunal, and enforce that claim by all the means which the laws allow."
"The power to punish for contempts is so indispensable to the preservation of the authority of the courts of judicature, and to both branches of the Legislature, that it has been considered by general consent conceded to them, from times of the highest antiquity to this day." In re Darby, 3 Wheeler, 1 (Tenn. — 1824).
In Re Fite, 76 S.E. 426. the Georgia Court of Appeals, after determining it was the duty of the court and judges thereof against which a contempt had been committed to proceed, said:
"A judge who, knowing his duty, does not dare discharge it, is unworthy of his high office, the judicial ermine should be stripped from him, and he should pass into oblivion."
There is inscribed on a tablet of imperishable marble, which is placed in the masonry within the Supreme Court room of this state, this maxim:
"The safety of the state is the highest law."
The inscription on that tablet is particularly applicable in the matter at bar, for the highest law means nothing if the Supreme Court, whose duty it is in this commonwealth to define that law, can with impunity be made to suffer contemptuous attacks. Must the judge who is the object of that attack be forced to go before some other tribunal to defend the court over which he presides, and thus neglect in the meantime the official duties which belong to his office? If so, no one would be afraid to offend, nor would the insulted court attempt to punish under such discouragements. Without power to repress the efforts of designing men that shall be directed against him because of unyielding temper, how will the judge be able to uphold the dignity and integrity of the court when interests of the highest magnitude are to be settled by his decisions? When it shall be observed that the most submissive pass unmolested, will not submission at least plead in recommendation of itself? Will it not set before him the perpetual conflicts which he has to maintain in vindication of opinions in which he has no individual interest, and the unceasing calumnies to which he is exposed for the protection of others, who hardly know why he is so worried? If in so many difficulties the judge is not furnished with the means of immediate defense and repression, his authority must fall, and the rights of the people with him. See In re Darby, supra.
I now direct myself to the question as to whether a court and a judge thereof against whom a contempt is committed are disqualified to dispose of the contempt.
In Dale v. State (Ind.) 150 N.E. 781 (syl. 5 and 6), it is said that a contempt is neither civil nor criminal action, but that the contempt therein considered is in the nature of a criminal action.
"It has been the general rule that contempts of the court have been dealt with by the court and judge against which such contempt has been directed. * * * It is the invariable rule that it is for the court which made the order in an equitable proceeding to punish for contempt of the court based upon a refusal to obey or comply with the order made by the court. * * * The law recognizes no excuse why a change of venue ought to be granted from the presiding judge in such a summary proceeding. * * * But it is well recognized as now settled that criminal contempts of the courts as well as direct contempts are to be tried summarily by the court. The interference in the long established practice of the court in trying such cases summarily would be violent should the change be made to the regular course and way of procedure as followed in the ordinary civil or criminal causes, in which the cases of contempt would be subject not only to removal from the judge by a change of venue, but to removal from the county: also subject to delay in the trial usually accorded to parties in civil actions. Were the change to be made to civil procedure to any extent, the courts would lose that power so *Page 45 long recognized to preserve the dignity of the court and the good name thereof. Merchants' S. G. Co. v. Board (1912) 201 Fed. 20, 120 C. C. A. 582; State v. Frew (1884), 24 W. Va. 412, 49 Am. Rep. 257."
6 R. C. L., p. 520, paragraph 33, is as follows:
"The power to punish for contempt, whether expressly conferred by some positive enactment or regarded as an incident to jurisdiction conferred upon the court, 'exists merely for the purpose of enabling it to compel due decorum and respect in its presence and due obedience to its judgments, order, and process. Hence, it is in no case authorized to inquire respecting or to punish contempts or any other court or tribunal, unless the latter is an agency or a part of the punishing court, and the contempt must, therefore, be regarded as a contempt of it and the power to punish as an incident for maintaining its authority. (Puterbaugh v. Smith, 131 Ill. 199, 23 N.E. 428, 19 A. S. R. 30; State v. Shepherd. 177 Mo. 205, 76 S.W. 79, 99 A. S. R. 624; In re Williamson, 26 Pa. St. 9, 67 Am. Dec. 374.) This is the rule even though the contempt constitutes also a libel on the judge. (Myers v. State, 46 Ohio St. 473, 22 N.E. 43, 15 A. S. R. 638.)"
13 C. J. 60, paragraph 83:
"Since no court except that against which a contempt is committed has power to punish it, the general rule is that a party accused of contempt is not entitled to a change of venue (Merchants' S. Co. v. Chicago Bd. of Trade, 201 Fed. 20; Bloom v. People, 23 Colo. 416. 48 P. 519; Crook v. People, 16 Ill. 534; State v. 2nd Jud. Dist. Ct., 30 Mont. 547, 77 P. 318; State v. Harney, 30 Mont. 192, 76 P. 10; People v. Williams,51 App. Div. 102, 64 N.Y. S. 457: In re Brown, 168 N.C. 417,84 S.E. 690; Noble Tp. v. Aasen, 10 N.D. 264, 86 N.W. 742), especially if the contempt was committed in the presence of the court."
13 C. J. 52, paragraph 69:
"Since contempt proceedings are substantially criminal in their nature, one court is not authorized to punish a contempt against another court or judge, unless such other court or judge is an agency or part of the court inflicting the punishment as, for instance, where the court is composed of several divisions, or as in the case of a referee, or the like. * * * (Bessette v. Conkey Co., 194 U.S. 324. 24 S.Ct. 665. 48 L.Ed. 997; Ex parte Tillinghast, 4 Pet. 108. 7 L.Ed. 798; Merchants' Stock, etc., v. Chicago Bd. of Trade, 201 Fed. 20, 120 C. C. A. 582; Kirk v. Milwaukee Dust Collector Mfg. Co., 26 Fed. 501; In re Litchfield, 13 Fed. 863; Voorhees v. Albright, 28 F.Cas. No. 16, 999: Callan v. McDaniel, 72 Ala. 96, People v. Placer County Judge, 27 Cal. 152; Ormond v. Ball,120 Ga. 916, 48 S.E. 383: Tindall v. Wescott, 113 Ga. 1114, 39 S.E. 450, 55 L. R. A. 225; In re Fite, 11 Ga. 665, 76 S.E. 397; People v. Grogan, 178 Ill. A. 314; Lockwood v. State,1 Ind. 161; Kissell v. Lewis, 27 Ind. A. 302, 61 N.E. 209; Drady v. Polk County Dist, Ct., 126 Iowa, 345, 102 N.W. 115; Moore v. Jessamine, Litt. Sel. Cas. 104; Andrescoggin R. Co. v. Andrescoggin R. Co., 49 Me. 392; Fitzsimmons v. Detroit Bd. of Canvassers, 119 Mich. 147, 77 N.W. 632, Atchison, etc. R. Co. v. Jennison, 60 Mich. 232, 27 N.W. 6; State v. Ryan, 182 Mo. 349, 81 S.W. 435; Nebraska Children's Home Soc. v. State,57 Neb. 765, 78 N.W. 267; Johnson v. Bouton, 35 Neb. 898, 53 N.W. 995; Phillips v. Welch, 12 Nev. 158; Mills v. Mills, 95 Misc Rep. 231, 158 N.Y. S. 735; N.Y. Typothetae v. Typographical Union, 66 Misc. Rep. 484, 123 N.Y. S. 967; Id., 138 App. Div. 293, 122 N.Y. S. 975; Strong v. Strong, 28 N.Y. Super, 612; Wicker v. Dresser, 14 How. Pr. 464; In re Rhodes, 65 N.C. 518; In re Williamson, 67 Am. Dec. 374; Del Toro v. Municipal Ct., 16 Porto Rico, 89, Graham v. Williamson, 128 Tenn. 720, 164 S.W. 781; Sanders v. Metcalf, 1 Tenn. Ch. 419; State v. Thurmond. 37 Tex. 340; Alfred v. Alfred, 87 Vt. 542, 90 A. 580; Crosby's Case, 3 Wills, C. P. 188, 95 Reprint, 1005; In re Clarke, 7 U. C. Q. B. 223.)"
The sole adjudication of contempts, and the punishment thereof, in any manner, belongs exclusively, and without interference, to each respective court. Bessette v. Conkey Co.,194 U.S. 324, 24 Sup. Ct. Rep. 665, 48 L.Ed. 997.
In Lamberson v. Superior Court of Tulare County (Cal)91 P. 100, it is said:
"Nor is the judge disqualified from sitting in the contempt proceedings. Petitioner's theory in this regard, if we understand it, is that the judge is disqualified from hearing the proceedings in contempt, because the contempt itself consists in imputations upon his motives, and attack upon his integrity. Such is not and never has been the law. The position of a judge in such a case is undoubtedly a most delicate one,but his duty is none the less plain, and that duty commandsthat he shall proceed. However willing he may be to forego the private injury, the obligation is upon him by his oath to maintain the respect due to the court over which he presides. As was said by the Chief Justice in Re Philbrook, 105 Cal. 471, 38 P. 511. 45 Am. St. Rep. 59: 'The law which in such cases makes us the judges of offenses against the court places us in an extremely delicate and invidious position, but it leaves us no alternative except to allow the court and the people of the state, in whose name and by whose authority it acts, to be insulted with impunity, or to exercise the authority conferred by law for the purpose of compelling attorneys to maintain the respect due to courts of justice and judicial officers.' Were the rule otherwise so *Page 46 that it was required that another judge should be called in to sit in the proceeding, the recalcitrant and offending party would need only to insult each judicial officer in turn until the list was exhausted, and thus, by making a farce of legal procedure, go scatheless and unpunished."
In Meyers v. State, 46 Ohio St. 491, 22 N.E. 43, it is said:
"Though the libel was, in large part, against the presiding judge, that fact did not disqualify him from trying the proceedings in contempt. It was not the libel against the judge which constituted the offense for which the respondent was liable as for a contempt of court. The offense consisted in the tendency of his acts to prevent a fair trial of the cause then pending in the court. It is this offense which constitutes the contempt, and for which he could be punished summarily; and the fact that in committing this offense, he also libeled the judge, and may be proceeded against by indictment therefor, is no reason why he may not and should not be punished for the offense against the administration of justice.
"The statute clearly authorizes, as did the common law, courts to punish summarily, as contempts, acts calculated to obstruct their business. They could not be maintained without such power, nor could litigants obtain a fair consideration of their causes in a court where the jury or judge should be subject during the trial, to influences in respect to the case upon trial, calculated to impair their capacity to act impartially between the parties. Nor is there serious danger to the citizen in its exercise. Power must be lodged somewhere, and that it is possible to abuse it is no argument against its proper exercise. But we think the danger more imaginary than real."
In Cock v. United States, 267 U.S. 517, 69 L.Ed. 767, cited by respondent, Chief Justice Taft of the Supreme Court of the United States said that, where personal criticism existed, or an attack upon the judge was made (there is no personal attack as to me by the respondent), such a judge must banish the slightest personal impulse to reprisal, but he should not bend backward and injure the authority of the court by too great leniency, and that where not impracticable, where delay might not injure public or private rights, and where a personal attack upon the judge existed in a contempt case, and where it was not a scheme to drive the judge out of the case for ulterior motives, then, and under such circumstances, without flinching from his duty, such a judge might properly ask that one of his fellow judges take his place. The wisdom of the great American jurist is disclosed in his careful approach of the advice given in regulation of the inferior court, the District Court of the Northern District of Texas, and this rule, while not binding, should be highly persuasive in our regulation of inferior courts of this state, when and where there is more than one judge within the district. But this dictum was not intended to apply to the Supreme Court of the United States, and cannot by analogy be made to govern the situation pending in the Supreme Court of the state of Oklahoma. The rule of law announced in that case, to wit: "The scheme of committing acts of contempt palpably aggravated by a personal attack upon the judge, in order to drive him out of the case for ulterior reasons, should not be permitted to succeed' " should be decisive of the issue here.
On January 13th, last, under the facts as applied to me, I thought it my duty, as a Justice of the Supreme Court, not to disqualify in such a contempt case, but to proceed as long as lawful so to do.
As recited heretofore, the regularly elected Supreme Court of this state on February 2nd, in cause No. 18123, denied the writ of mandamus, and the appointed court thereafter allowed and issued the said writ. Ordinarily, it is the duty of courts to enforce their judgments and decrees, and under this theory the court in cause No. 18123 might have issued a writ of prohibition against the court in No. 18080, to prevent the latter from enforcing its writ, and in effect reversing the judgment of the former. Such action would have presented an intolerable conflict. But now, because of my respect for all constituted authority, whether I agree with that authority or not. I have, as I was commanded to do, and in order to avoid an intolerable conflict of courts, certified my disqualification.
In Commercial Union of America, Inc., v. Anglo-South American Bank. Ltd., 10 Fed. Rep. (2nd Series) 937, the rule as laid down in the second paragraph of the syllabus is as follows:
"Judges of co-ordinate jurisdiction, sitting in the same court and the same case, should not overrule the decisions of each other."
In Shreve v. Cheesman, 69 Fed. 785. 16 C. C. A. 413, Judge Sanborn, writing for the Circuit Court of Appeals in the Eighth Circuit, in 1895, said:
"It is a principle of general jurisprudence that courts of concurrent or co-ordinate jurisdiction will follow the deliberate decisions of each other, in order to prevent unseemly conflicts, and to preserve uniformity *Page 47 of decision and harmony of action." Oglesby v. Attrill, 14 Fed. 214; Reynolds v. Iron Silver Mining Co., 33 Fed. 354; Wakelee v. Davis, 44 Fed. 532.
Thus is stated the rule of comity and of necessity. And it is said further:
"But the rule itself, and a careful observance of it, are essential to the prevention of unseemly conflicts, to the speedy conclusion of litigation, and to the respectable administration of the law, especially in the national courts, where many judges are qualified to sit at the trials, and are frequently called upon to act in the same cases. It is unavoidable that the opinions of several judges upon the many doubtful questions which are constantly arising should sometimes differ, and a rule of practice which would permit one judge to sustain a demurrer to a complaint, another of co-ordinate jurisdiction to overrule it and to try the case upon the theory that the pleading was sufficient, and the former to then arrest the judgment, upon the ground that his decision upon the demurrer was right, would be intolerable. It has long been almost universally observed." Taylor v. Decatur Co., 112 Fed. 449; Plattner Implement Co. v. International Harvester Co. of America, 133 Fed. 376 66 C. C. A. 438.
Not only as a matter of comity between courts should this court in this cause refrain from in effect overruling the Supreme Court in cause No. 18123, involving the same persons and same subject-matter, but a fortiori the judgment in cause No. 18123, under decisions of this court too numerous to be cited, and under well-considered decisions of all courts, is res judicata as to the matter presented in cause 18080, the writ of mandamus. Such a decision, conclusive in reason of this, and in a mandamus case, is Richardson County v. Drainage District, 147 N.W. 205, in which the Nebraska court held that a judgment in mandamus was a complete bar to an action in injunction, the syllabus saying.
"A judgment in mandamus is conclusive upon the parties to an action of all issues of fact litigated therein."
A mandamus case likewise decisive is People v. Circuit Judge,40 Mich. 63, in which the Michigan court held mandamus will not lie to compel a circuit judge to proceed to trial when a bill has been filed and injunction allowed to restrain it.
Another decision applied to extraordinary writs and judgments therein as being res adjudicata is Shumate v. Fauquier County, 5 S.E. 570, a quo warranto case, in which the Virginia court held a judgment in quo warranto was a bar to a writ of mandamus on the same ground. The principle is well settled that a judgment is conclusive if upon the direct point, even though the objects of the two suits be different. Here the objects are the same. Freeman on Judgments (3rd. Ed.) p. 249. The parties are not strangers to the proceedings, and should not be permitted, if they would, to question the judgment in No. 18123. County Commissioners v. U.S., 112 U.S. 217, 5 Sup. Ct. 108; Harshman v. Knox Co., 122 U.S. 306, 7 Sup. Ct. 1171a. Blackstone says that a judgment or writ of quo warranto is final and conclusive even against the crown. Leroy v. House, 1 Sid. 86; 2 Bl. Comm. 263; Ames v. Kan., 111 U.S. 449.
Likewise the judgment in cause No. 18123 should be considered as estoppel in judgment against the consideration of the same subject-matter between the same parties in cause No. 18080.
So now we have three additional reasons presented, each of them conclusive within itself, as to why the opinion of the majority is in error. These are: (1) Comity between courts; (2) the matter is res adjudicata; (3) estoppel in judgment.
It, therefore, follows that the appointed Supreme Court, in cause No. 18080, was bound by the decision of the regularly elected Supreme Court in cause No. 18123, and under the rule announced in Commercial Union of America v. Anglo-South American Bank, supra, this court of co-ordinate jurisdiction should not overrule the decision of that court of equal rank and jurisdiction in a matter involving the same subject-matter and between the same parties.
In Back et al. v. State (Neb.) 106 N.W. 787, being the only contempt case cited by the majority opinion as bearing out their contention that a Judge of the Supreme Court may be recused in a contempt case for alleged bias and prejudice, it is true that in that case, decided February 8, 1906, Chief Justice Sedgwick, speaking for the court, said:
"Upon prosecution for contempt in the district court, the judge before whom the cause is regularly to be heard may refuse to transfer the cause to another judge of the same court for hearing, unless it is made to appear by due proof that a fair and impartial trial cannot be had before him, or that some other ground for change of venue prescribed by statute exists."
In that case the affidavit did not contain such allegations and the proof did not show that the contemnor could not secure a fair and impartial trial. *Page 48
In the case at bar, while it is true the allegations state that Mr. Justice Clark and myself are biased and prejudiced, the respondent was by the court invited to offer proof and he wholly failed to avail himself of this opportunity. Having failed to prove allegations of bias and prejudice contained in his application for a writ, he can only stand upon the admitted existence of suits which have started after judgment was rendered in the Riverside Case. But be that as it may, the case cited, Back et al. v. State, supra, is not a proper foundation for the majority opinion, for the reason that this case was overruled the following year, on December 18, 1907, by the same court, speaking through the same judge, when he said in Connell v. State (Neb.) 114 N.W. 294, syl. 2:
"When the acts complained of are done in the presence of the court, the defendant is not entitled to a change of venue on account of alleged prejudice of the court, nor is he entitled to trial by jury. * * *"
And in the latter case it is said:
"It was the duty of the court to hear the matter himself, and the defendants' application for a change of venue was rightly overruled. These two propositions are elementary.* * *"
In State v. Newton, 62 Ind. 517, wherein a contempt was committed by failure to obey a subpoena issued by a justice of the peace, and wherein under their statutes a change of venue is provided for in justice courts when a party files an affidavit that he believes he cannot secure an impartial trial before such justice of the peace on account of bias and prejudice, it was held that the contemnor was not entitled to a change of venue and that the statute did not warrant nor authorize a change of venue from such justice of the peace in such proceedings.
In Crook v. People, 16 Ill. 534, it was held that informations for contempts were not within the meaning of their statutes in relation to change of venue.
In Jones v. Judge, 41 La. 319, 6 So. 22, it was held:
"A judge has no right to recuse himself where a party to the cause could not legally do so."
As I understand it, it is the judgment of the majority that Mr. Justice Clark and myself should he disqualified for unproven bias and prejudice extraneous of the matter before us. It is not proof, but it is within the knowledge of each of us, that we never knew nor dealt with the respondent before his entrance into these extraneous, vexatious acts of Mr. Owens, the respondents client. Likewise, that these harassing acts did not occur until after the respondent and his client had selected and accepted the forum of which we are elected members and until an adverse judgment was rendered against him.
We can and should, by the decisions of this court as cited in Burke v. Territory, 2 Okla. 499, 37 P. 829, take judicial notice of every stage of the proceedings as applied to the Riverside Case. We judicially know that the respondent Martin, as attorney for Mr. Owens in cause No. 36361, pending before the Honorable R. D. Hudson, district judge of Tulsa county, by extraordinary process restrained us as Justices of the Supreme Court (until he was prohibited solely in such restraint) from proceeding further in the considering of the Riverside Case, an action without counterpart in any jurisprudence — and that then he, Martin, appeared in open court before the Supreme Court and contended that since we were sued, we should disqualify. A most preposterous contention. To be plain, he contended, in effect, that when a satisfactory judgment is not rendered a disgruntled sui or might sue the judges for deciding against him, allege fraud and corruption, make the judge a party to an ancillary action and thus disqualify the judge, thus change the forum, and so on and on until a satisfactory judgment was secured or until the list was exhausted from which judges might be drawn, or until patience ceased to be a virtue and the majesty of the law yielded to vexation. Such contention could have but one purpose and that was, as expressed by Chief Justice Taft in the Cook Case, supra, "a scheme to drive the judge (judges) out of the case."
The majority opinion says that in the event Mr. Justice Clark and myself were to sit we would be called upon to decide an issue which might vitally affect the result of litigation in Tulsa county and Oklahoma county now pending between us and the respondent. Not so. The libel case in Oklahoma county grows out of an advertisement with which Mr. Martin is not shown to have any concern either in the preparation, printing, or publication. That publication forms no part of this contempt action. Mr. Martin and Mr. Owens are separately charged in separate actions filed and numbered in this court.
The action in Tulsa county, as heretofore stated, is one of which Mr. Owens sues us, *Page 49 alleging that we, together with two former Chief Justices of this court, and together with 123 other persons, entered into a conspiracy to defraud him, and did defraud him by the judgment rendered in the Riverside Oil Case.
It is the well-settled law that judicial officers are not liable in civil actions for their judicial acts within the scope of their jurisdiction.
In Waugh v. Dibbens et al., 61 Okla. 221, 160 P. 589, it said:
"An action will not lie against a judicial officer for a judicial act, where there is jurisdiction of the person and the subject-matter, although it be alleged and proved that such act was done maliciously, or even corruptly."
This rule of law is firmly announced in the following decisions: Comstock v. Eagleton, 11 Okla. 487, 69 P. 955; Flint v. Lonsdale, 41 Okla. 448, 139 P. 268; Broom v. Douglass (Ala.) 57 So. 860; Shaw v. Moon (Ore.)245 P. 318.
In Roberston v. Hale (N.H.) 44 Atl, 695, it is said:
"It is a general rule that courts and judges are not liable in civil actions for their judicial acts within the scope of their jurisdiction, and this protection extends to magistrates exercising an inferior and limited jurisdiction, — as justices of the peace. For the purpose of securing a fearless and impartial administration of justice, and to guard against an oppressive abuse of legal authority, the law exempts all judicial officers, from the highest to the lowest, from civil liability in the performance of their judicial duties within their jurisdiction, but makes them liable to impeachment or indictment for official misconduct or corruption. Evans v. Foster, 1 N.H. 374; Burnham v. Stevens, 33 N.H. 247; State v. Towle, 42 N.H. 540; Jordan v. Hanson, 49 N.H. 199; Waldron v. Berry. 51 N.H. 136; State v. Ingerson, 62 N.H. 437; Boody v. Watson, 64 N.H. 162, 9 A. 794. In cases upon this subject courts do not undertake to revise the doings of the tribunal whose acts are brought in question collaterally, but only to examine them so far as to ascertain whether the tribunal was acting within its jurisdiction. They proceed upon the ground that, if the tribunal had jurisdiction, its judgment is conclusive, and cannot be examined or reversed collaterally, but must stand until reversed by some proceeding instituted for that purpose."
In Bradley v. Fisher, 13 Wall. 335, 20 L.Ed. 646, the reason for the rule is announced as follows:
"If civil actions could be maintained in such cases against the judge, because the losing party should see fit to allege in his complaint that the acts of the judge were done with partiality, or maliciously or corruptly, the protection essential to judicial independence would be entirely swept away. Few persons sufficiently irritated to institute an action against a judge for his judicial acts would hesitate to ascribe any character to the acts which would be essential to the maintenance of the action."
In Yaselli v. Goff et al., 12 F.2d 396, it is said:
"There are weighty reasons why judicial officers should be shielded in the proper discharge of their official duties from harassing litigation at the suit of those who think themselves wronged by their decisions and that injustice has been done. A defeated party to a litigation may not only think himself wronged, but may attribute wrong motives to the judge whom he holds responsible for his defeat. He may think that the judge has allowed passion or prejudice to control his decision. To allow a judge to be sued in a civil action on a complaint charging the judge's acts were the result of partiality or malice, or corruption, would deprive the judges of the protection which is regarded as essential to judicial independence. It is not in the public interests that such a suit should be maintained, and it is a fundamental principle of English and American jurisdiction that such an action cannot be maintained."
There are no cases to the contrary, so that I now say, since Owens accepted this forum, admitted jurisdiction in the Riverside Case, subsequently failed to obtain a favorable judgment, and thereafter in the Tulsa county district court sued 123 persons, joining Justice Clark and myself, alleging fraud in the judgment, that we are not liable, and hence cannot be called upon in this contempt case to decide any matter vital to either the litigation in Tulsa county or Oklahoma county.
Article 2, section 6, of the Constitution of Oklahoma, being relied upon by the majority opinion, is set out as follows:
"Right and justice shall be administered without sale, denial, delay, or prejudice."
I take it that the majority base their action and theory solely upon the word "prejudice" in said constitutional provision contained.
I have endeavored thus far to set out the prevailing and universal doctrine of law that in contempt cases a judge cannot and should not be recused for prejudice alleged or proven. This rule is different in civil and criminal matters. The word "prejudice" *Page 50 cannot be said to apply in contempts committed after a litigant has accepted the forum. If so, when a litigant observed that an unfavorable decision to him was about to be rendered, he need but to strike the court, then allege that by reason of the blow the court and judge thereof was biased and prejudiced against him, and therefore the judge must stand aside — and continue such acts ad infinitum. Such should not be the law.
This section of our Constitution is based largely upon Magna Carta, chapter 40, which provides:
"We will sell to no man, we will not deny to any man, either justice or right."
Maryland's Constitution provides that every man ought to have remedy "speedily without delay according to the law of the land." Idaho's Constitution, art. 1, sec. 18, is substantially the same as ours. In the constitutional provisions of practically all of the states denial and delay of justice is prohibited. Arkansas (1874) 2-13; Colorado (1876) 2-6; Connecticut (1818) 1-12; Delaware (1897) 1-9; Florida (1885) Declaration of Rights 4; Illinois (1870) 2-19; Indiana (1851) 1-12; Kentucky (1890) 14; Massachusetts (1780) 1-11; Maryland (1867) Declaration of Rights 19; Maine (1819) 1-19; Minnesota (1857) 1-8; North Carolina (1876) 1-35; North Dakota (1889) 22; New Hampshire (1902) 1-14; Oregon (1857) 110; Pennsylvania (1873) 1-11; Rhode Island (1842) 1-5; South Carolina (1895) 1-15; Tennessee (1870) 1-17. Vermont (1793) 1-4; West Virginia (1872) 3-17; Wisconsin (1848) 1-9; Alabama (1901) 1-13; Mississippi (1890) 24; Montana (1889) 3-6; Wyoming (1889) 1-8.
There is contained in the cited constitutional provision of our state this mandate:
"Justice shall be administered without * * * denial, delay. * * *"
Should we sit idly by and permit the lawful orders and mandates of this court to be delayed by a contempt, if one has been committed? We think not. Moreover, to do so would be, in our judgment, a denial of justice and a violation of the provisions of said constitutional provision. When a litigant wins he is entitled relief, and relief immediately — "Justice delayed is justice denied." To permit justice to be denied by a vacillating act of the court is to allow the Constitution, its provisions, and rights of the people to go down to the same grave with the courts. How are fundamental and constitutional guarantees to be upheld without there be a court with courage to stand as a bulwark for constitutional liberties?
We are resolved that acts of a disgruntled litigant and a vexatious and ill-informed counsellor shall not drive us from the path of duty, and we shall not prostitute ourselves by voluntarily accepting the easier way. We observe the historic words of Madame Roland when she said: "O Liberty! what crimes are committed in thy name!" And we are determined, in so far as our acts shall be effective, that the respondent cannot convert his own misdeeds into a shield against his own wrongs; that he should not be permitted to profit by his own perversity.Nullus commodum capere potest de injuria sua propria.
It is said in the majority opinion, "No one should be a judge in his own cause." We question the applicability of the maxim.
The position held by Justice Clark and myself is now held by the writers of the majority opinion. The oath taken by us was administered to them. The duty we owed the state to uphold its highest court now rests upon them, by their oath. If it can be said that, as members of this court, we were disqualified because it was our cause, then it may be said with equal reason that those men who took our places assumed our duty and burdened our cause. It is theirs. If we were disqualified by reason of our interest in seeking to preserve the court over which we presided, then the same duty, the same interest, the same disqualifications are theirs. But Broom's Legal Maxims. p. 96, says:
"That the decision of a judge made in a cause in which he has an interest is, in case of necessity, unimpeachable: * * * (e) or where a judge commits for contempt of court."
And on p. 99:
"And if a particular relation be created by statute between A. and B. and a duty be imposed upon A. to investigate anddecide upon charges preferred against B., the maxim 'nemo sibi esse judex vel suis jus dicere debet' would not apply." The Queen v. Bishop, 92 Q. B. D. 454.
For the reasons herein recited. I most respectfully dissent from the opinion of the majority and most seriously question the wisdom of the rule they have announced.
I am authorized to say that Justice Clark, who assisted in the preparation of this opinion, concurs. *Page 51