(dissenting).
The majority opinion is conspicuously clear, concise and conclusive. We have no difficulty in understanding the extent to which this holding goes. We agree that the judgment finds the parties guilty of “constructive contempt”; that upon filing of a complaint, and without hearing, a judgment nisi was entered *619finding them guilty as charged in the complaint and directing them “to appear at a future date to show cause why the judgment nisi should' not be made final.” It is correct that “the judgment nisi, after a full hearing, was made final on August 9, 1945.” We can not agree that this was a proper procedure. It is directly in conflict with the Supreme Court of our State as well as our own Court: Ex parte Ratliff, 3 S. W. (2d) 406; Ex parte Ireland, 38 Tex. 351; Ex parte Testard, 106 S. W. 319; Ex parte Lipscomb, 239 S. W. 1101; Ex parte Kilgore, 3 Tex. App. 247; Ex parte Foster, 71 S. W. 594; Ex parte Landry 144 S. W. 962; Ex parte Duncan, 182 S. W. 313; Ex parte O’Fiel, 246 S. W. 664; and many others.
Judge Greenwood, speaking for the Supreme Court of our State in Ex parte Ratliff, supra, considers a case in which Ratliff had come into court and made a false statement about having sold and transferred some notes prior to the entry of an order restraining him from doing so. The judge found the sworn answer which he had filed to be untrue and summarily entered his judgment of contempt. After an exhaustive discussion of the authorities pertinent to the question, the opinion says: “The judgment is a nullity under a long and unbroken line of decisions of both the Supreme Court and the Court of Criminal Appeals.” As authority he cited the foregoing cases, all of which have been examined and considered by the writer. The opinion concludes: “The judgment of the district court is void because it undertakes to deprive relator of his property and liberty without due process of law, as guaranteed to him by section 19 of article 1 of the Bill of Rights in the Constitution of Texas, and by the Fifth Amendment to the Constitution of the United States.”
We have also given attention to a quotation in respondent’s brief from Ex parte Britton, 92 S. W. (2d) 224: “To justify a court in punishing for contempt, three things are necessary: (1) Jurisdiction of the subject-matter; (2) jurisdiction of THE person; and (3) the authority of the court to render the particular judgment.” (Emphasis added.)
How can it be said that Judge Browning had jurisdiction of the parties when he entered the judgment nisi in the present case when they were not in court, actually or constructively? When they did appear in answer to the notice they were only called upon to meet the issues which were raised by the notice; that is, to show cause why the judgment nisi should not be made permanent. In as much as the judgment nisi was void it could *620not be the basis for a final judgment in the case. As authority for this expression we refer to Ex parte Pease, 57 S. W. (2d) at page 576. an opinion by Judge Latimore, from which we quote the following:
“We also observe that the order and judgment of the trial court entered on May 10th finding and adjudging applicant guilty of contempt for said publications, same being at most BUT CONSTRUCTIVE CONTEMPT, and applicant not being present, and no notice ever having been served upon him to appear, would be ENTIRELY VOID and without authority as such judgment ; also, that IF THE JUDGMENT THEN SO ENTERED WAS MADE THE BASIS FOR THE JUDGMENT LATER ENTERED On May 16th, in which reference is made to said judgment of May 10th, same would also be without authority of law.” (Emphasis added.)
Apparently when the final order was entered respondent discovered the error in the procedure and attempted to avoid the difficulty by not specifically referring to the judgment nisi. The facts remains, however, that the judgment nisi was used as a basis for the order made after hearing; they contain the same subject-matter in the same language. The court could enter no other order under the notice. Brasher v. State, 112 So. 535.
Our courts, state and federal, with practically unanimity, have long accepted the definition of “due process of law” as formulated by Daniel Webster in his argument in the famous Dartmouth College case, quoted in the following language: “A law, which hears before it condemns; which proceeds upon inquiry and render judgment only after trial.” We know of no criticism of this comprehensive definition. It has been applied, followed, and has determined the result of thousands of cases with a loyalty unknown to any other recorded argument of an attorney at the bar. Every clause in Webster’s definition is violated by the court in the instant case when Browning entered judgment nisi. The parties were not present; they had not been heard; no inquiry was made of them; yet, they were condemned. The final order of the court does nothing more than attempt to make this judgment nisi final. The error in entering that judgment was fundamental, because the court was without jurisdiction to enter it. Thomas v. D. C. 90 F (2) 424; Barnes Drilling Co. v. Phillips, 26 P (2) 766; see also Simpson v. Stanton, 193 S. E. 64, from which we quote: “Judgment without such citation and opportunity wants all the attributes of a judicial determination; it is judicial usurpation and oppression, and can never be upheld where justice is fairly administered.”
*621Furthermore, I am unable to agree with my associates that the evidenccr introduced in this case would support a judgment for contempt under proper procedure. In determining this question I agree that consideration must be given to all of the publications about which complaint is made, but this cannot be done and understood without also considering the subject-matter of the publications and this has not been taken into account by the majority. If we accept the statement which is made as a basis for the conclusion reached, that “the rule controlling in Texas has long been that ‘the publication of matter having reference to a pending suit, which is defamatory and calculated in its nature to obstruct and impede the administration of justice and to embarrass the judge in the trial of the pending action, constitutes contempt of court’,” we are necessarily relegated to the procedure which took place in the county court in order to conclude the question as to whether or not the publications were intended to “obstruct and impede the administration of justice.” If the judge had entered the wrong judgment and their efforts should be to induce him, not by fear but by reason of further consideration, to set aside a wrong judgment and enter one according to :aw and justice, could it then be said that they were intending to “obstruct and impede the administration of justice”? The opinion reaches that conclusion without any consideration of the correctness of the judgment in the ouster proceeding. I wish to consider the case in connection with that judgment. For that reason I find it necessary to give brief attention to the civil suit.
This suit, by Jackson, et al v. Mayes et al, resulted in judgment for plaintiffs in the justice court. After appeal the case came on for trial in the county court. The evidence and procedure there consumed the greater part of three days, though there was but one issue which forms the basis for the judgment and that was determined by a' lease contract, in writing, together with undisputed evidence to the effect that after the expiration of the contract, on March 15, 1945, Mayes had an option to extend it for a year. The rent for the additional period was $275.00 a month instead of $250.00. The lease contained no specific provision for the exercise of this option, either as to the date or manner of giving notice of the lessee’s intention to extend it. He simply had the option.
It is very clear that the evidence in the detainer suit will not support a forfeiture. The question is not controlled by statute in our State but it is well recognized that equity does not favor forfeitures and this is especially true of landlord and tenant *622contracts. The landlord writes the contract. If he imposes conditions for the exercise of the option, such will be enforced. If, however, none are written in the contract, the courts may not interplace them.
Prior to the expiration date Mayes had gone into the Armed Service and left his business affairs with an agent, who was not advised of the provision for the increased rent. At the proper time he tendered a check, in the usual way, for $250.00. Later he gave a new check for the $275.00 but through error it was postdated April 15th instead of March 15th. On the 13th day of April this check was returned to him by the plaintiff’s attorney. The failure to pay the rent in the sum of $275.00 by the 15th day of March was the basis for the claim to cancel the lease, and also for the instructed verdict in plaintiff’s favor. Such instruction to the jury, in the manner set out in the original opinion, was contrary to law. There is no defense attempted to be made for this action in respondent’s brief. All reference to it has been studiously avoided. It is not considered in this court’s opinion. I am unable to see how we can reach the conclusion that relators were attempting to “influence the court in the pending case contrary to law and justice,” in view of that judgment which is contrary to well recognized rules of equity.
Another phase of the record which has not been considered is that the publications spoke the truth. General allegations are made that they became false by over-emphasis, placed in conspicuous positions in the newspapers, and unnecessarily repeated for the purpose of creating the wrong impression, but the record does not contain any evidence that would in the remotest degree deny the truthfulness of the news reports coming from the trial of the case. While it is pointed out that certain facts were not published, these facts had no bearing on the case on trial and the failure to publish them could not be construed as placing the proceedings in a wrong light before the public. The fact that there were other parties interested, whose names were not mentioned, and that they were prominent people, will not constitute contempt however unfair it may appear to the court, or to others named.
It is well recognized that the truth or falsity of publications may always be properly considered in fixing punishment. In many cases the truth or falsity is relied upon in determining intent — the very essence of crime. Intent is involved in the case now before us. I am of the opinion that the truth of the publications is the determining factor because there appears no de*623famatory, degrading or debasing language. There was no effort to obstruct, interrupt, prevent, or embarrass the administration of justice. At most it was a plea for a trial by one qualified to conduct the case according to the rules of justice. There was no reflection on the judge’s integrity. All references to any irregularities are explained by the fact that he is not a lawyer.
We do not wish to be committed to the doctrine that proof of the truth of statements is always a complete defense to a charge of contempt in a case of this character. At the same time, we must recognize the general rule which has been stated by this court, to which we refer as follows, in Ex parte Green, 81 S. W. 723, at p. 725: “There can be no constructive contempts of court with reference to publications reflecting on the court or the judge thereof, unless the publication is not only of a defamatory character, but is untrue, and, in addition thereto, relates to some particular case then peneding and is calculated to embarrass the court in the trial or disposition thereof. As to other publications not relating to a pending case, no matter how defamatory the language used may be with reference to the court or the judge thereof, this will not constitute a contemnt, because it cannot be regarded as calculated to interfere with the administration of justice.”
Again from Ex parte Pease, supra: “It is still the rule in this state that one charged with contempt shall be allowed to prove the truth of his alleged contemptuous utterance. Ex parte O’Fiel, 93 Tex. Cr. R. 216, 246 S. W. 664. We think proof of the truth of the matter so published would have entitled applicant to his discharge upon the hearing before the court. We note the court refused to permit him to make such proof to which he took his proper bill of exception.”
We find numerous decisions to the same effect from various jurisdictions. The truthfulness of the publications is certainly entitled to some consideration in any character of case.
The public has an interest in the proper and effective procedure of our courts. Every case, civil as well as criminal, carries with it a public interest. If the public has an interest it is entitled to know what is taking place. In the early part of the trial evidence was introduced, making sensational charges against the opposing party. Such charges related to liquor violations, gambling, etc., and had no part in determining the rights of the parties in the civil case. The court overruled objections *624to this testimony and extended the time of the trial of the case (at the expense of the tax payers, always) to delve into these matters. It is natural to expect that such evidence would attract crowds to the court room and generate discussions on the streets. People would look to the newspapers for the true facts as to what occurred. Without such publications gossip will usually run wild. The names of good men might become involved. “Winds ■ of doctrine should freely blow for the promotion of good and the correction of evil.” The public was entitled to receive the true facts. If this weighed on the head of the judge he brought his own house down. It can not be laid to relators.
Finally, when the instructed verdict was given and the unusual procedure followed, wherein the jury refused to render the verdict as instructed, the public still had an interest. All of the machinery of the court, the building in which the trial was conducted, and the time consumed by the jurors, remain matters of public interest as being tax supported. The public may properly expect that all cases tried shall be conducted in an orderly manner, according to law, and that a just and legal judgment be finally entered. That is the purpose in providing courts at public expense to conduct private litigation.
Relators are members of society and in their capacity as gathers, commentators and publishers of the news, they have a responsibility to the general public. They exercised it in a fair and reasonable way, considering the subject-matter with which they had to deal and the public, interest involved. Thus we find every element of contempt known to modern jurisprudence to be lacking in the record and resort is had to the old idea which invests royalty with imaginary perfection and forbids a discussion of any question concerning the judge’s acts. He was the representative of the king and, as such, could do no wrong. It is important that the dignity of the court be maintained, but it is likewise important that the public interest be served. If that requires a discussion of the procedure in court, the public interest should be held superior. It is not so much a naked “freedom of the press” for which we are concerned as it is the public interest in the efficiency of our government.
The view we herein express has been ably treated in the case of Sullens v. State, 4 So. (2d) 356, by the Supreme Court of Mississippi. We quote from it as follows: “The exercise of this right may embarrass the particular functionary; it may depreciate the effectiveness of our legal procedure, yet so long as it pulls up short of the obstruction or impedance of the ma*625chinery of the court then in motion, it is free from interference by the court.” The paragraph from which the foregoing is taken concludes: “One may criticize the court as inefficient so long as he does not contribute to its inefficiency.”
The concluding paragraph of the opinion, in the Sullens case, says: “We are not unmindful of the extent to which the full exercise of the freedom of the press may on occasion tend to embarrass a trial judge in the discharge of one of the most difficult, exacting and important public duties. * * * The two writings here involved must be adjudged in the light both of their text and their context. When viewed in both aspects we do not discover in them the ingredients of constructive contempt.”
Chief Justice Smith, of the Mississippi Supreme Court, wrote a concurring opinion from which we quote at length because of the pointedness of expression, as well as the unavailability of the report to the bench and bar of Texas.
“Since the adoption of our constitutional guaranties of freedom of speech and of the press, American newspapers in response to public demand therefor have assumed the duty of giving the people full information of the conduct of public officials, including the judges of all courts. Such information is necessary in a Democracy in order to insure the observance of its processes. ‘Star Chamber proceedings or secrecy in the administration of justice is provocative of injustice any tyranny. The people have a right to know how its judicial, as well as executive officers, perform their duty, and publicity of the acts and doings of court officials serves as a material factor in keeping the stream of justice unpolluted.’ Patternson’s ‘Free Speech and a Free Press," p. 151. The discharge of this duty was here particularly incumbent upon the appellant, because of the threat made by the judge to jurors who had voted for an acquittal in a criminal case to cite them for contempt of court.”
The Sullens case was decided in 1941. The first of the publications under discussion took place while the court was- still in session and related to the conduct of the court in handling the grand jury and the trial of cases generally. Many of the indictments returned were pending when the other publications were made and it cannot be said that the publications related to matters that had already been closed. The facts of the case, particularly the editorials, are very similar in all material respects to the case before us.
*626I discovered, too, an overemphasis, if not a fanciful distinction, made between a case now pending and one which has been concluded. This appears, however, to be in keeping with many decisions. In my view the dignity of the court may be as much injured by a subsequent discussion of its action as if made during the court procedure. Such holdings constitute a recognition of our departure from the common law decisions as they came to us in the early day. If the public is entitled to know only after the case is concluded, particularly one from which there is no appeal as in the instant case, we are then like the man who locked the stable after the stock had been stolen from it. After the majority opinion in this case, it will be exceedingly dangerous for a newspaper to publish the court proceedings and, it appears to me, for the citizenry to discuss same until the whole matter is concluded. The public would thereby be precluded from informing themselves as to the capacity of the various officers to occupy the positions to which they have been elected. We would not have the best information obtainable in the re-election of our judges, clerks and bailiffs.
I have searched in vain to find a case, in this or any other jurisdiction, where a party has been held in contempt of court for publishing the truth; for attempting to induce the court to decide a case according to law; or for a judgment nisi which has been held valid in a case of constructive contempt. I have examined all of the cases cited by all parties, and most of those upon which such cases rely as well as many others. There is no parallel to this case to be found.
Finally, the opinion is in error in the conclusion that the finding of Craig guilty of contempt necessarily includes both of the others. Mulvaney was a news reporter and had no part or responsibility in the editorials or the manner of the publications after his story of each daily occurrence was reported to his superiors. If his part in the transaction should be contemptuous Craig would be responsible, as the publisher, but Mulvaney is not responsible for the things that McCracken and Craig did.
I acknowledge the high quality of the briefs by both sides of this controversy. They have been of unusual assistance in the very difficult questions treated.
_ I cannot believe that this opinion can stand as the law of this State, and respectfully record my dissent.