concurring:
As the questions presented by this case are not only of great importance but of much delicacy, it may be, perhaps, more satisfactory both to myself and to others that I should briefly state, at least, some of the reasons which lead me to the conclusions on which the Court founds its judgment.
Before entering upon the merits it- may be proper to notice the objections made by the respondents to the rule awarded against them. They assert that the rule was improvidently awarded because:
First — It was not entered upon a complaint or other information supported by affidavit; and second, It was not set forth either in the rule or in the communication upon which it, at least in part, purports to be based, that respondents were, at the time of the publication of the article complained of, editors, proprietors and publishers of the Intelligencer, or in any manner connected therewith.
"While the rule does not, in terms, state that respondents were the proprietors and publishers of thn Intelligencer on the day the article complained of appeared in that paper, it does set forth the article in full and calls upon them to appear and show cause, “ why they and each of them shall not be attached for their contempt of this Court in publishing said article.” This plainly and explicitly notified them of the very cause and nature of the offence and by the strongest implication informed them that they were the persons charged with its commission.
The procoedure in cases of this character is various in different jurisdictions and the discretion of the presidiug judge is so broad even in inferior courts that it will seldom be revised by the appellate court—Androscoggin R. R. Co. v. Androscoggin, 49 Me. 392; Bates’ Case, 55 N. H. 326.
In Dandridge’s Case, 2 Va. Cas. 408, decided in 1824, the general court, after a very full and able review of the law on the subject, both upon reason and authority, decided that, “an attachment for contempt has no other object than to bring the party into court. When the contempt is in open court, the party being present, there is no need of any process to bring him in, nor any need of interrogatories to ascertain what has occurred in open court.
*470“ Wheu the contempt is not in open court, the usual course is t'o issue a rule to show cause why an attachment should not issue, though the attachment sometimes issues without the rule. 'If the party appear'to the rule to show cause, and instead of moving to discharge it, submit to answer interrogatories, there is no necessity for the attachment.” The court also held that if, before the rule issued the party appeared in court and a rule was made upon him to show cause and he was recognized to appear on the next day, “the rule for an attachment, as well as the attachment itself, may be dispensed with.”
The contempt in that case was committed in the presence of the judge, on the court-house steps, just as he was going upon the bench to open court; but the court not being then actually in session, it was held to be not a direct but a constructive contempt. The proceedings in the case against the defendant were instituted by the court without either rule or attachment. The defendant being in court, the judge made a statement of the facts constituting the contempt which was read in open court and the evidence of sundry witnesses as to the facts was also taken in open court and sworn to in the presence of the defendant. The evidence having been thus taken, on the motion of the attorney for the commonwealth and of the defendant the cause was continued until the next day and the defendant directed to show cause on that day “why he should not be committed.or fined for his said contempt.” These were all the ■ proceedings had in that case either to inform the defendant of the charge or to bring him befoie the court and the general court held them to be sufficient. •
In Moore’s Case, 63 N. C. 397, the court entered an order stating, that “the court being informed of a certain libelous publication directly tending to impair the respect due to the authority of the court,” &c. Upon this order proceedings by rule for a contempt were taken against the persons who had signed said publication. It does not appear how* the court became informed of said publication. The defendant appeared and protested in his answer that the rule “ought not to have been made in his absence; without notice, and without affidavit or other legal proof of the facts upon which *471said rule is based.” In regard to this protest, Pearson, C. J., in delivering the opinion of the court, says: “The objection that the rule was made without affidavit or other legal proof of the facts upon which it is based, is equally untenable. It is admitted that when the proof is furnished by the senses of thejudges, it may be acted on. Here there is such proof. We know 'by our senses that a newspaper containing the paper referred to, purporting to be signed by Moore and others had been extensively circulated and was then in the court-room; and the want of a disavowal on his part, that he had signed the paper, or consented to its publication, furnished prima fade proof, not sufficient for final action, but all sufficient as a ground for the rule. On liis appearance he was at liberty to deny the fact without an oath and the denial, like the plea of ‘not guilty,’ would simply have put the fact in issue, and he'would have been entitled to have the rule discharged, unless the fact was proved by direct testimony. Instead of that, he admits the fact-. So this is no legitimate ground of complaint. In short, all the preliminary'objections were waived, and the reference to them can answer no useful purpose.” 63 N. C. 404.
Many other authorities might be produced to show that' thejudges may, not only in cases of contempt in the face of the court but in cases of constructive contempt, upon their own motion and without affidavit or other sworn statement, award rules against the offenders. In direct contempts it is almost uniformly the practice for the judge to act on his own information. He acts upon the evidence of his own senses. 'And in the ease of constructive contempts, if he has the same kind of evidence, he is equally at liberty to act upon it. In some cases the character of the offence may be more complicated and less susceptible of furnishing such proofs of its existence.as will authorize the court to act upon it. In such cases a sworn statement is necessary and should always be required as the foundation of the rule. But a publication in a newspaper is not of that class, and especially is such the case when the publication charged as the contempt is an editorial article in a newspaper published in the very city or town in which the court is at the time being held. Such a publication furnishes not only the evidence of its character *472but the paper in which it is published furnishes the names of the publishers. Such was the nature of the offence charged in this case, and the rule might with entire propriety, and no doubt would, have been awarded by the Court on its information had not its action been anticipated by the counsel in the case to which the objectionable publication had reference.
The introduction by the defendants of the communication of Mi’. Russell in reference to what occurred between him and the President of this Court, in view of the precedents and the law in proceedings of this character, was gratuitous and irrelevant and could not possibly subserve any useful purpose. It was plainly the right, if not the positive duty, of the President of the Court, or any member with the assent of the others, to institute proceedings for contempt, and a fortiori, the President had the clear right to confer with the counsel who was about to call the attention of the Court to the facts requiring such proceedings. While said communication was thus unnecessarily and improperly brought before the Court, I do not wish to be understood as impugning the motives of counsel in permitting it to be done, as they doubtless regarded it material:
In The State v. Morrill, 16 Ark. 384, the rule was issued on the unsworn statement of a member of the bar and in all respects the proceedings in that case were followed in the one at bar. But if there could be any question about the legality and sufficiency of the rule in this case, the respondents by submitting to answer and admitting the fads necessary'to support the attachment, thereby waived all preliminary objections. It would certainly have been utterly useless if not absurd for the Court, after the respondents had fully answered and admitted all the facts to make out the offence, to award a rule, as it could have done at once, requiring them to admit the facts a second time. Under the circumstances I am clearly of opinion, that the objections to the rule and mode of proceedure are plainly untenable.
After the party is before the Court thoproceedinggs are to be regarded and entitled as of a criminal character—State v. Harper’s Ferry Bridge Co., 16 W. Va. 865; Ruhl v. Ruhl, supra 279. And where the offence is of agrave nature, if evidence beyond the examination or answer of the defendant *473is gone into, I apprehend only such evidence should, in general, bo received as would be admissible on the trial of an indictment for the samegrade of offence. Indeed, there seems to be no reason why the general course of the trial before the court should not conform in substantial respects to the trial of an indictment before a jury, and be governed by the same rules; but the mode of proceedure must be left, to a considerable extent, to the discretion of the court, though this discretion is not by any means unlimited—Bates’s Case, 55 N. H. 355; State v. Matthews, 37 Id. 454.
Upon the merits of this case it may be stated as a proposition of law unquestioned and unquestionable, that by the common-law of England as well as by the uniform decisions of the courts of this country, courts have the inherent power to punish for contempts in a summary manner, and that this power is an essential element and part' of the court itself which cannot be taken away without impairing the usefulness of the- court, because it is a power necessary to the exercise of all others. This much has never been disputed. But there has been in the past and still is much difference of opinion as to the character of contempts to which this doctrine applies, and as to the right of the Legislature to limit this power in courts created by written Constitutions. I do not propose to consider these questions as they have been fully discussed in the opinion announced by the President of this Court.
Apart from any statutory enactment, I regard it as the settled law of Virginia and this State, fully established by the able opinions and the decision of the general court of Virginia in Dandridge’s Case, 2 Va. Cas. 408, that the courts of these States possess the power to punish, in a summary manner, both direct and constructive contempts. The right to do so in cases of the first class no one denies. In respect to the other class, constructive contempts, I think, the right is fully established by the case just cited. That was a case of constructive contempt, so held to be by the court. The court, after quoting from Blackstone’s Com., to show that contempts “are either direct, which openly insult or resist the powers of courts, or the ]icrsons of the judges loho preside,” 'and that among the latter are those which .consist “in speaking or writing con-*474tcmptuously of the court or judges acting in their judicial capacity,” says: “Nor in this particular, and for this end, is it of the least importance whether the contumely is used in open court, at the moment when the occasion occurs or the moment afterwards when the crier has proclaimed the adjournment, as the judge descends the steps of the bench, or those of the court-house door. The only real question in either case is, whether it is his official conduct for lohich he is challenged. or insulted.”—Id. 419. And in summing up the kind of contempts that may be summarily punished by fine and imprisonment Judge White, on page 4B5, says : “That these contempts to courts, so punishable, may be committed either in the face of the court, or in the absence of the party (that is, the court) so insulted. That those contempts which may' be committed in the absence of the party', for reasons which I need not now detail, may, among other things, be committed by speaking or writing contemptuously' of the court, or judges acting in their judicial capacity, or by saying or writing anything which is calculated to prejudice the public mind respecting any suit then pending in court.” “But authorities are introduced,” says the judge, “which prove that a court may' fine and imprison for a contempt committed in its face, and cases to'prove that this has often been done; and' what then? Does this show that a court cannot commit for like offences perpetrated out of court? Do not Hawkins and Blackstoue both declare, first, that a court may' commit for contempts in its presence, and having disposed of that point, proceed to state, that it may also fiue and imprison for con-tempts committed in its absence, and state what those latter contempts are, and show how in such case the court must proceed?” Among these latter contempts are embraced, “saying or writing anything which is calculated to prejudice the public mind respecting any suit depending in court.” The decision of the court was in accordance with the views thus expressed and grounds here taken.
This decision was made in 1824, by' a unanimous court composed of some of the most eminent and conservative judges that ever adorned the bench of Virginia. I think, therefore, it may be safely stated, that this decision declares the law of Virginia as it existed in 1824, and as no subse-*475queut decision Inis overruled or even questioned tlie law as thus declared, it necessarily follows that this must he held and taken to he the law of Yirginia and of this State at the present time except so far as it has been modified or changed by statute. What is the character and extent of the legislation on the subject?
On April 16, 1831, the General Assembly of Virginia passed an act which was amended by chapter 24 section 1, Acts 1847-8, and was subsequently incorporated in the Codes of that and of this State. The provisions of said statute are substantially the same in each of the acts referred to and as they are now in our Code, chapter 147. Section 27 of said chapter provides that, “the courts and judges thereof may issue attachments for contempts, and punish them’summarily, only in the cases following:” (Here it mentions four classes of contempts all of which are either direct or in relation to the officers and process of courts). Sections 28 and 80 are as follows :
“ 28. Ho court shall without a jury, for any such contempt as is mentioned in the first class embraced in the preceding section, impose a fine exceeding fifty dollars or imprison for more than ten days. But in any such case the court may impanel a jury (without an indictment or formal pleading) to ascertain the fine and imprisonment proper to be inflicted, and may give judgment according to the verdict.”
“ 30. If any person by threats or force, attempt to intimidate or impede a judge, justice, juror, witness, or an officer of a court, in the discharge of his duty, or to obstruct or impede the administration of justice in any court, he shall be prosecuted as for a misdemeanor, and punished by fine and imprisonment, or either, at the discretion of a jury.”
To hold that this statute applies to the Supreme Court of Appeals of this State would be, in effect, to deprive that court of the right 1o punish summarily any constructive contempts of any kind whatever. It has no jurisdiction or machinery to try misdemeanors and the statute declares that such con-tempts shall be prosecuted in no other manner. As we have seen, by the common law of the State this Court had the power to punish such contempts. This, was declared to be one of the inherent and necessary powers of the court. This *476statute then, if it be construed to apply to this Court, would be an abosluto denial of its power to punish such contempts and not a regulation or limitation of the right or of the mode and manner of the punishment. This being one of the inherent powers of the court conferred by the Constitution which created the court, the Legislature, while it might regulate, has not the power to destroy it, and, therefore, to so construe the statute would bring it in conflict with the Constitution and make it void. The State v. Morrill, 16 Ark. 384; In re Woolley, 11 Bush 95. But such an interpretation is not to be entertained unless it is unavoidable and the legislative intent is so plain as to be capable of no other construction. It does not seem to me that such was the legislative intent. The statute provides that in one of the named classes of contempts and, perhaps, the most important one, the court shall not impose a fine exceeding fifty dollars or imprison more than ten days. But in such case the court may impanel a jury and they by their verdict may find and the court impose indefinite fine and imprisonment. The court here cannot refer to a court which has not the right or the means of impaneling a jury. One court cannot punish a contempt as such committed against another court. And the eonsequeuce is that if this statute embraces the Appellate Court, then that Court being without the adjunct of a jury can in no ease impose a fine exceeding fifty dollars or imprison more than ten days while the inferior courts of the loAvest grade by the aid of their juries may impose fines and imprisonment without legislative limit. Such, it seems to me, was not the intent of the Legislature- — -certainly the intent to that effect is not manifested so plainly as to admit of no other reasonable and fair interpretation.
In the class of constructive contempts mentioned in section 30, the punishment of which in airy maimer is, as we have shown, absolutely denied to the Appellate Court, the inferior courts still have under the statute an efficient means of punishing' They have the right at any time to call before them both grand and petit juries and under the statute they may with but little delay — almost as summarily as before the statute — punish such contempts. The statute as to such courts may well be regarded as a regulation and, perhaps, a *477necessary and proper limitation—Deskins’s Case, 4 Leigh 685; Ex parte Robinson, 19 Wall. 505. But this is very different in regard to the Appellate Court. It is deprived ot all power to punish such contempts in any manner as contempts or otherwise. In this respect it has no more control or power than a private citizen who may be libeled or assaulted — it must assume the role of a private prosecutor before a court over which it has no control. My conclusion is, therefore, that said statute has no application to this Court and leaves its jurisdiction and power to summarily punish constructive as well as direct contempts according to the principles of the common-law as declared and defined in Dandridge’s Case, supra.
Having thus shown that this Court has the power to punish for contempts, it must not be overlooked that this power can be justified by necessity alone, and should rarely bo exercised, and never, except when the necessity is plain and unmistakable. It is not given for the private advantage of the judges who sit in the Court, but to preserve to them that respect and regard, of which courts cannot be deprived and maintain their usefulness. It is given that the law may be administered fairly and impartially, uninterrupted by any influence which might affect the rights of the parties or bias the minds of the judges — that the Court may command that respect and sanctity so essential to make the law itself respected — and that the streams of justice may be kept pure and uncorrupted. Tf the Court is scandalized and its motives or integrity impeached, in regard to official acts or conduct, the consequences cannot be otherwise than baneful. The administration of the law is embarrassed and impeded, the passions often unconsciously roused, the rights of the parties endangered, and a calm and dispassionate discussion and investigation of causes prevented.
The public have a profound interest in the good name aud fame of their courts of justice, and especially of the courts of last resort. Everything that affects the well-being of organized society, the rights of property, and the life and liberty of the citizen is submitted to their final decision. The confidence of the public in the judiciary should not be wantonly impaired. It is all-important to the due and efficient *478administration of justice that the courts of last resort should possess in a full measure the entire confidence of the people whose laws they administer. All good citizens will admit that he who wilfully and wantonly assails the courts by groundless accusations, and thereby weakens the public confidence in them, commits a great wrong not alone against the courts, but against the people of the State.
It must be and is cheerfully conceded that public journals have the right to criticisé freely the acts of all public officers —executive, legislative and judicial. It is a constitutional privilege that even the Legislature cannot abridge. But such criticism should always be just and with a view to promote the public good. 'Where the conduct of a public officer is wilfully corrupt, no measure of condemnation can be too severe, but when the misconduct, apparent or real, may be simply an honest error of judgment the condemnation ought to bo withheld or mingled with charity. As said by Holt in his work on Libel, chap. 9, “It is undoubtedly within the natural compass of the liberty of the press, to discuss in a decent and temperate manner, the decisions and judgments of a court of justice; to suggest even error; and provided it be done in the language and with the views of fair criticism, to censure what is apparently waong; but with this limita-tation, that no false or dishonest motives be assigned to any party..” These views are in my judgment sound and these rights should be cheerfully accorded' to the press in this free and enlightened country.
I know full well that respect to courts or judges cannot be compelled; “respect is the voluntary tribute of the people to worth, virtue and intelligence, and while these are found on the judgment seat, so long and no longer will courts retain the public confidence.” But the people have placed the judge in a position in which he unavoidably comes in conflict with the jealousies and resentments of those upon whose interest he has to act; his character, virtue and intelligence, however pure and unselfish, are not always a protection against the prejudices and passions of such as conceive themselves injured by his legitimate and proper official acts, and when assailed by such, if he may not punish them as a court, “he will be reduced to the alternative of either sub*479mitting tamely to contumely and insult, or to resenting it by force or resorting to the doubtful remedy of an action at law.” “In such a state of things” as said by Judge Dade, in Dandridge’s Case, “it would rest in the discretion of every party in court, to force the judge, either to shrink from his duty, or to incur the degradation of his authority, which must unavoidably result from the adoption of either of the above alternatives. To suppose that the personal character of the judge would be a sufficient guarrantee against this, is. to imagine a state of society which would render the office of the judge wholly unnecssary.”
The people, for the benefit of society and the promotion of law, order and justice, have placed the judge in a situation in which by reason of his office and duties as such, he is exposed to assaults and unjust suspicions which he would not have to incur as a private citizen. These assaults ’ and suspicions do not attach to him as a citizen. It is against these that the power of the court should defend him, and not from those which attach to him as a private person merely. In this country there are and ought to be no privileges but such as exist for the public good. Uo privilege can be claimed or admitted for a judge except such as pertain to. his official acts. Attacks upon these it is neither his duty nor his right as a private citizen to defend himself against. These are the acts of the people which they have imposed upon him, and it is their duty alone to defend or to give the judge the power as an officer to do so for them. Experience has shown that this is absolutely necessary and that its exercise cannot be withheld without destroying the efficiency and usefulness of courts. The judge as a private citizen is not entitled to redress his grievances except as other citizens; but his public acts are not of that character and cannot and ought not to be so defended.
’While it cannot be successfully, as' I think, denied, that this protective power, this right of self-defence exists as a necessity and must be exercised by some officer, it must be conceded that it is undefined and to a large extent arbitrary and would, therefore, seem to be, abstractly considered, liable to abuse, if not dangerous, in the hands of the court which is itself the subject of the offence. But in reply, we *480may, with just pride, refer to the history of the jurisprudence of Virginia and this State to prove this power is not likely to be abused and that it could not be entrusted into safer hands than the Supreme Courts of these States. The reports of Virginia, covering more than a century, show but one case of this character and this is the first that has occurred in this Court or any circuit court of this State, so far as I know. This creditable fact in our history does honor not only to the courts, but to the press and people of these States.
I concur in the syllabus and judgment of the Court. In respect to the character and evident purpose of the editorial article complained of, I concur with the opinion announced by the President of the Court.
Green, Judge:The members of this Court are well agreed as to the law applicable in this ease and also as to the propriety of permitting this proceeding to abate as to A. W. Campbell, one of the proprietors of the Wheeling Intelligencer, it appearing that he has been absent from the State for some ten months and was necessarily ignorant of the matters, on which the rule for contempt in this case was issued, and had practically no supervision of the Wheeling Intelligencer, when the editorial complained of was inserted. We are also agreed as to the punishment, which should be inflicted on'John Frew. But I differ from the other judges as to the character of the punishment, which should be inflicted on C. B. Hart, the chief editor of said paper, and the author of the obnoxious editorial, which appeared in the paper of June 18,1884. This editorial was as follows: “The State campaign seems to be shaping itself. It leaks out that the Supreme Court of Appeals is to brought to the rescue in a decision affirming the unconstitutionality of the exemption act and declaring the assessment order to be lawful and right. This is in effect what was promised by the Supreme Court judges to the Democratic caucus before the order was issued.
“It might be thought strange that anybody could know what the decision of the Supreme Court is to be on any question. But it seemed equally strange that three out of four *481judges of the Supreme Court told the Democratic caucus more than a year ago to go ahead and rely ou the backing ot the Court. The present understanding is that the decision is to be rendered before the meeting of the Democratic State convention in order to simplify the situation. It is also understood that this move is not intended to advance the interest of Hon. E. Boyd Faulkner.
“ Of course it was not intended that the purpose of the Court should he made public, and publicity may induce the Court to change its mind just to show that somebody has been taking liberties with the text and misrepresenting the Court. We shall see what we shall see.”
The Democratic caucus referred to in this editorial appears in the answer of C. B. Hart, the chief editor of this newspaper, to have been a conference of leading Democratic members of the Legislature including the chairman of both the Senate and House finance committees, called together by the Governor during the session of the Legislature of 1883, to consider whether the statute-law should not he made to conform to the decision of this Court in the Chesapeake & Ohio Railway v. The Auditor, &c., 19 W. Va. 408, as interpreted by the Governor. ' It also appears from this answer, that the expected decision of this Court referred to in this editorial was to be rendered in the mandamus case of Joseph S. Miller, Auditor, v. T. H. Buchanan, assessor of Brooke county, then pending in this Court and decided on the day the rule in this case was returnable, June 28, 1884, reported supra, and which is referred to for a full understanding of that case.
Hart in his answer justified the publication of June 18, 1884, complained of, so far as the two first paragraphs in it are concerned, because ot a publication which he says appeared in the Greenbrier Independent some time prior to August 31, 1883. This publication in the Greenbrier Independent I never saw and never heard of till these jiroeeedings for contempt were .instituted; and I know now nothing whatever about it except what is stated in the Wheeling Daily Intelligeneer of August 31, 1883, which was filed with his answer by Hart. Hor did I ever see or hear of the editorial in that number of the Wheeling Intelligencer till the filing of this answer of ITart, which editorial is a comment on this *482publication in the Greenbrier Independent. This number of the Wheeling Intelligencer does not purport to give the whole of the publication in the Greenbrier Independent, as I understand it; and what it does give it does not purport to give in the words of the publication in the Greenbrier Independent, as T understand it, though>perhaps in this I may be mistaken. Uor does he file with his answer a copy of this Greenbrier Independent or of this publication in it. And as the editorial in the Wheeling Intelligencer of August 81, 1883, based on what he says was said in the Greenbrier Independent is very uncharitable and partisan, I cannot but deem this editor a very unreliable person to extract fairly the substance of a publication of a political opponent. I can therefore have no assurance that this statement in the Daily Wheeling Intelligencer of August 31, 1883, fairly represents the meaning of the language in the publication of the Greenbrier Independent. It may be, if this publication of the Greenbrier Independent was before us, it might when charitably and fairly interpreted consist with a state of facts of the following general character : That after the letter of Governor Jackson was written to the Auditor and after he had written his circular to his assessors known as the supplemental assessment order, both of which were written without consultation with, or knowledge on the part of the judges that anything of this sort was contemplated, the Auditor or some other person may have asked members of this Court what they thought of it in some casual conversation, and the judge or judges may have said the}' thought it all right, for in so saying under such circumstances, he or they would have done nothing objectionable. And if any such thing ever occurred, no doubt such judge or judges who might have so expressed himself or themselves, would in a very brief time have no recollection of such casual conversation or of what was said in it. The whole conversation would pass from his or their mind as a thousand other casual conversations, in which he or they took no special interest, have passed from his or their mind. There would be nothing to impress on the mind of such judge or judges such a conversation, for it is supposed to have occurred when this circular known as the supplemental assessment order was-first issued by the Auditor, and of course there had been no indication that' *483this instruction of the Auditor would not be cheerfully obeyed by the assessors. There never had been an instance in this State or in Virginia, so far as I ever heard of, in which any assessor had refused to obey any instruction of the Auditor, and T presume neither the Auditor nor the judge or judges, who may have been thus casually conversed with, nor any one else ever expected any litigation to arise from a refusal of any of his assessors to obey his instructions.
It is possible of course that the Greenbrier Independent may have endeavored to make more out of such casual observation of one or more of the judges than he ought to have done, and represented it in his publication as.a deliberate opinion of these judges. If so, he did-very wrong; or it may be possible he used the language contained in the Wheeling Daily Intelligencer of August 31, 1883. And as this may have been the case, I will give to the defendant, Hart, the full benefit of considering that the editorial in the Wheeling Intelligencer of August 31, 1883, has given fully and accurately what had been previously published in the Greenbrier Independent-, and I will receive and treat as true what ITart states in his answer, that he had good reason to believe and did believe it to be true. This I will do, although- he does say in his uncharitable commentary on this publication, as he calls it, of the Greenbrier Independent, when he first published it: “ Perhaps there is no truth whatever in the report of this disgraceful proceeding.” ITe claims now however in his answer that he believed it, when he published the editorial in his paper of June 18, 1884, and that he had good right to believé at least that the publication as it appeared in the Greenbrier Independent was true.
Admitting that he believed it to be true in- the form in which it was re-published in his paper of August 31, 1883, did it justify, as he claims, the first two paragraphs of his editorial of Juné 18, 1884; or does it in any degree palliate his offence in the publication of this outrageous libel on three members of this Court- ? ITe does not state, who are the three members intended; and we have no idea to which of the members of our Court he intended to refer. In this editorial of June 1, 1884, he states in substance as a fact, that three of the four judges of the ¡Supreme Court attended a *484Democratic caucus more than a year ago, a caucus insinuated to have been a secret one, and that these three judges told this, caucus to go ahead and have the supplemental assessment order issued by the Auditor, and that they might rely upon the Supreme Court of Appeals, if a controversy should arise about it, to decide that the exemption act was unconstitutional, and that the supplementary assessment order, which the caucus was to get the Auditor to issue to his assessors, was lawful and right. This is the plain meaning intended to be conveyed in the first two paragraphs of this editorial complained of. And the answer of the defendant Iiart admits that he had no ground for this base and scandalous libel except this publication in the Greenbrier Independent nearly a year before. Yet in his editorial commentary on this publication of the Greenbrier Independent he distinctly admits, that he does not understand from it, that three judges of our Court over attended this Democratic caucus. Indeed with the article before him, even as it is represented by the Wheeling Intelligencer, no one could possibly imagine that the three judges attended such caucus. But though by his own confession in his former editorial he knew this was not stated in the Greenbrier Independent, yet he published it as a fact and makes no reference to the publication of the Greenbrier Independent as the source of his information. Had he stated that these were conclusions, which he had drawn from this publication, even though he failed to republish it, his editorial of June 18, 1884, which would have been outrageously scandalous, if it had been confined to the first two paragraphs, might have been passed over as unworthy of notice. It would then have been understood that this scandalous matter was alleged not as a fact but stated simply as a deduction of a violent and partisan editor from a publication in another paper not given.
As a justification of the publication of the residue of this editorial of June 18, 1884, Hart says in his answer, that, when, he made this publication, he knew that Joseph S. Miller, the Auditor, and the plaintiff in the mandamus case, had been a candidate for Governor at the hands of a Democratic State convention called to meet in Wheeling on the 23d day of July, 1884; and that on the 7th day of June, *4851884, lie -wrote and published a letter declining ' to be such candidate, and soon after he instituted this mandamus suit against the assessor of Brooke, and an effort was made by his counsel to obtain an early decision of this mandamus case.. The object of his desiring this early decision was, this answer says, understood among the friends of Miller to be that, if the decision should be favorable to him, he, Miller, might still go before the convention as a candidate for nomination for Governor’ with hopes of success. To prove this T. J. Parsons’s affidavit is filed. This affidavit purports t® state a conversation ata public hotel between two persons, who preferred Miller for Governor, and who supposed that, if he succeeded in the mandamus suit, he would still be a candidate for that office before the convention, and that this, one of them supposed, was the reason why he wanted an early decision of the case. The answer also states, that this Court publicly announced, when it awarded the writ of m.andamus, that it would expect the case to be argued on the return day of the writ, which was only six days after its issue. And that the clerk of our Court at the instance of the Court wrote a letter to the defendant, Buchanan, informing him that he must be then prepared to go on with .the ease on the return day of the writ. But he says he did not then know, that the provision of law required the assessor to complete his book by July 1, and while this might have been the reason for the trying of'tlie case speedily, this was not stated by the Court in the public announcement nor by the clei’k in his letter to the assessor.
Is this either a justification or an excuse for a publication, which says: “It leaks out, that the Supreme Court of Appeals is to be brought to the rescue. * * * The present understanding is that the decision (one in favor of the Auditor) is to be rendered before the meeting of the Demo-ocratic State convention in order to simplify the situation. * * * * Qf eourse it wag 110t intended that the purpose of the Court should be made public, and publicity may induce the Court to change its mind just to show that somebody has been taking liberties with the text and misrepresenting the Court. We shall see what we shall see.” I will state the reasons, which operated on the Court in fixing as early a day *486for the disposal of this mandamus case, as it reasonably could. In the first place the law directs the assessors to return their books by July 1 in each year, and it was obviously desirable that a mandamus case asking that an assessor should be required to place certain property on his books should be decided before July 1. As it was, the case was decided on June 28; and the peremptory writ of mandamus was served on the last day of June. Thus the Court gave the utmost limit of time, which it could with any propriety have done. .But the answer says that Hart was not aware, when he published this scandalous editorial, that the assessors’ books were directed by law to be returned by July 1. But I presume he was aware that this Court at this term rarely ever sits much longer than July 4. And if he knew anything, he knew it was our duty to dispose of a case before us, in which the State had large interest, at some time during this term. This exceedingly suspicious defendant, Iiart, is informed and believes that the announcement by this Court, when it awarded the mandamus nisi, that the parties must be prepared to go on with the argument on the return day of the writ six days from that time, was unusual; and this extraordinary announcement, as he thinks it, raised a suspicion.in his mind, that there was a secret and clandestine understanding between the Court and the plaintiff in this proceeding. He was confirmed in this suspicion by the tact, that the clerk of this Court informed the defendant, the assessor of Brooke, that the Court had made this public announcement. I directed the clerk to write this letter. Mv sole object was to let the defendant know, that which had been publicly announced, because, as he lived in another county, I thought it possible he might not hear of this public announcement, he not being in Court and no one being there to represent him. I had this information given to him solely to indicate to him the importance of employing his counsel at once, in order that the}7 might investigate the law of the case thoroughly and be prepared at the earliest period convenient to submit their views. I certainly had no thouglrt^that this act of our clerk or this public announcement of our purpose to dispose of the case, as promptly as it could be done, would give rise to a suspicion in the 'mind of any person, that our Court had *487entered into some clandestine and corrupt agreement with tlie plaintiff in the proceedings. But when the defendant; Hart, learned that some friends of the'plaintiff in this mandamus suit thought, that if the ease was decided in favor of the Auditor, the plaintiff, before the meeting of a Democratic State convention on July 23, 1884, he might have a chance to get the nomination for Governor, he was convinced that there was an understanding with the Court, that a decision in favor of the Auditor, the plaintiff, was to be rendered before the meeting of this Democratic convention, and having 'no other reasons than these he felt himself justified in publishing this language: “ It leaks out that the Supreme Court of Appeals is to be brought to the rescue. * * * The •present'understanding is that the decision (in favor of the Auditor) is to be rendered before the meeting of the Democratic State convention in order to simplify the situation. It is also understood that this move is not intended to advance the interests of Hon. E. Boyd Faulkner.”
The reasons assigned by Hart in his answer stated above as a justification for this portion of his publication, strike me as not only ridiculous but as indicating a mind so blinded by prejudice and partisan bias as to render him a dangerous member of society. I cannot but regard the latter part of of this editorial quoted above as base and scandalous. There’ was nothing whatever in the proceedings in the mandamus suit peculiar or unusual. It was a case which, as every one knows, it was our duty it possible to decide during the present term, and that as it was a case of general public interest involving in the principles to be settled by its decision a large pecuniary interest, it was right and proper for the Court to give all the time it possibly could to its consideration, and with this end in view it was obviously proper to notify parties interested to prepare promptly to submit their views to the Court. This was done by the Court, and this it seems called forth this scandalous publication. I regard it as the result of an uncharitable and suspicious temper guided by reckless partisan bias.
At the close of the answer of Hart there is this remarkable passage: “The date of the publication may have been untimely, and if it had been considered, that said publication *488of said article could be construed by any one as an attempt to intimidate or influence the Court in the case of Miller v. Buchanan, no such article would have been published during the pendency of the case.” Now how is it possible to believe this statement, when the obnoxious editorial closes thus: “Of course it was not intended that the purpose of the Court should be made public, and publicity may induce the Court to change its mind just to show that somebody has been taking liberties with the text and misrepresenting the Court. We shall see what we shall see.” Ts there any misunderstanding of this language ? Does it admit of any two constructions? “Publicity may induce the Court to change its mind to show that it has been misrepresented.” Might not. the defendant, Hart, just as well have expressed this sentiment thus: “I expect this editorial exposing the corrupt arrangements, which have been made by this Court, will prevent it from carrying out this corrupt bargain, so as to escape my lashings and induce the public to believe that they have been misrepresented.”
But it is said in this answer of the defendant, Iiart, that lie had no personal interest in the decision of this mandamus case, and that as a politician he preferred that the case should be decided in favor of the Auditor, as it was decided after the filing of this answer. This I suppose is true. If the case was to be decided at all during this term, as the editor of a Republican paper, I presume, he did prefer its being decided as it was decided by this Court. But I can have as little doubt, that as the editor of a Republican paper and as a mere partisan having no regard to any interest but the supposed interest of his party, he earnestly desired that the case should not be decided at all during this term of the Court, or till after the 23d day of duly, 1884, -when the Democratic convention for the nomination of State officers ivas to held. This is a fair inference from the affidavit of his friend Parsons, filed with his auswer. The very editorial, which is the subject of complaint, says: “The present understanding is that the decision is to be rendered before the meeting of the Democratic State convention in order to simplify the situation.” Now from the spirit exhibited in his editorials and answers I hardly suppose he desired to aid the Demo*489cratic party by “simplifying the situation,” even had he thought that the public interest would be promoted, and this “simplifying of the situation,” he seems to have thought, would be the result of a decision of ths’mandamus case during this term of our Court. lie had an interest as a mere partisan to delay the decision of this case, and on the face of this editorial it does seem to me, that he expected to effect this by intimidating this Court, a most unworthy effort induced by a most unworthy motive.
In my judgment this defendant, Hart, ought to be imprisoned as well as fined. His contempt of this Court consists of a libelous publication made in the city when the Court was sitting, charging that a majority of its members had entered into a corrupt arrangement to decide promptly a case pending before it in favor of the plaintiff, which charge was made with no other motive than a belief, that if he could prevent the Court by intimidating it from deciding the case during the present term, the political party, to which he belonged, would thereby have its interests promoted. If for such a contempt the guilty party should not be imprisoned, I can not conceive an offence in the nature of a contempt of this Court, for which any party should be imprisoned. The answer of this defendant Hart is itself highly offensive and greatly aggravates the libel, which he published, and the effect has been to cause this Court to impose on him a heavier fine than it would otherwise have done. This is generally all that can be done; for the answer would *of course generally be regarded as written and filed by the direction of the client, and his counsel would generally not know whether the allegations in it were true or false, or whether or not his client believed- them to be true. And ordinarily it would be the duty of counsel to file such answer as his client directed, even though it were insulting to the Court in its character. But if the counsel knew not only that the statements of the answer were false but also knew, when the answer was filed, that his client knew them to be false, then, I think, the counsel would violate their duty to the Court in filing such an answer. 'There is nothing on the face of Hart’s answer which would justify me in saying that it is of this character. But this Court knows certain facts, *490which are so notorious in their nature, that the inference is strong, that they .were known to Ilart, when he published this editorial of June 18, 1884, and also to his counsel, when they filed his answer, unless they had been forgotten by them, which made the filing of such answer, upon the principles I have stated, a breach of their duties to this Court.
These, facts are: That this Court begins its session in Charleston on the second Wednesday in January, the very day on which the Legislature under the Constitution begins its session. The Legislature sits forty-five days, unless the session is prolonged by a two thirds vote of all the members of each house. The session when not prolonged -terminates in February.- This Court holds every year a special term in Wheeling, which begins in March and on a day to be fixed by the Court. ' Of course when the session of the Legislature is not prolonged, it has adjourned, and its members have left Wheeling before the members of this Court reach there to hold this special term. In 1883 the session of the Legislature was not prolonged; and it adjourned on February 23, 1883, while our Court commenced its session on March 7, 1883, nearly two weeks afterwards. Three members of this Court therefore could not possibly have attended as charged a- Democratic caucus of this Legislature, unless two of them at leasf happened to be in Wheeling during a vacation of this Court, an event which has never happened since I have been on the bench during a period of eight years. Occasionally-one of the ijj.em.bers of this Court visits Wheeling, when this Court is not in session, but it is most unlikely that three* members of this Court would meet here, except when the Court was in session. And as the Legislature of 1883 adjourned February 23, 1883, and this Court did not meet here till March 7, it would seem almost impossible, that three members of this Court attended as charged a Democratic caucus of the members of the Legislature. These facts, it is presumed, were' known to Hart, the editor of the Wheeling Intelligencer, and to his counsel, one of whom resided in Wheeling and one in Parkersburg, and both of whom have a large practice in this Court and knew at what times this Court met. If counsel, when they filed the answer of Hart in this case, knew that when their client made the publica-*491tí on of June 18, 1884, he knew it was not true as charged, that three members of this Court attended this Democratic caucus, then they violated their obligation to this Court and should be held responsible therefor. . If when a rule was issued against them, it should appear, that when they filed' this answer they had forgotten, when the Legislature adjourned, and did not then recollect, that the session had not been prolonged, or when this Court met in Wheeling, or could assign any other good reason why they were not, when they filed this answer, aware that when their client on June 18, 1884, published that three, members of this Court attended this caucus, that this was false, then they would not have violated their duty to this Court, and ought not to be held responsible for filing this answer for their client. Otherwise in my judgment they should be held responsible therefor as for a contempt of this Court. -The other members of the Court differ with me in this respect and think no further investigation should be made in this matter.
On the 7th day of July, 1884, the opinion of the Court was announced; and thereupon the following attachment in accordance therewith at once issued :
“State oe West Virginia,
“In the Supreme Court oe Appeals,
“Juue Term, 1884,
“ 27ic State of West Virginia to the Sheriff of Ohio county, greeting :
“Whereas it has been made to appear, that John Frew and C. B. Hart have printed and published an article, which has been adjudged by the said Court, now in session at Wheeling, in the aforesaid county and State, to have been printed and published in cpntempt of said Court while so. in session, as aforesaid. We therefore command you that you attach the said John Frew and C. B. Hart, so as to have their bodies forthwith before our said Supreme Court of Appeals here now in session at Wheeling in the county aforesaid, to answer the said Court of the said contempt, by them lately committed against it, as it is said, and further to do and receive what our said Court shall in that behalf consider. Hereof fail not and have you then and there this writ. *492Witness tlie judges ot said Court, and tire seal thereof this 7th day of July, 1884.
“ 0. S. Lons,
“ Clerk Supreme Court of Appeals.”
In obedience thereto the defendants at once appeared at the bar of this Court, and Johnson, President, pronounced the following sentence:
THE SENTENCE.
“You, John Frew and C. B. Hart, are before this Court under an attachment for contempt, in consequence of an article relating to a cause in this Court, and published in a newspaper of which you and A. W. Campbell are the publishers and proprietors, and you, C. B. Hart, are the editor-in-chief.
“In the opinion delivered by this Court, when passing upon the return to the rule to show cause why an attachment should not issue against you, we have said all that we desire to say in regard to the character of the publication and the injury, which such publications tend to cause to the administration of justice. It was there held that your answers showed no reason why an attachment should not issue. It now only remains to impose on you a penalty for the offence. It is in the power of this Court to punish in 'this summary way such constructive contempts as that of which you have been found guilty, both by fine and imprisonment. We have no desire to inflict a severe penalty. Our object will be accomplished, if we show to you, that the law will not tolerate publications, the direct tendency of which is to degrade, impede, influence and obstruct courts in the administration of justice. . •
“We are not unmindful of the fact that you, John Frew, did not know that such editorial article was to be published until after its publication, and will therefore inflict upon you a nominal fine. But with you, C. B. Hart, the case is different, because in your answer while admitting that you were the chief editor of the paper and inserted said editorial therein, you attempt to justify yourself in a manner which aggravates your offence, and we shall impose upon you as moderate a fine as the circumstances will allow, as we can *493not believe that you will in the future commit a similar offence.
“You,’John Frew, are adjudged to pay a fine of twenty-five dollars, and you, C. B. Hart, are adjudged to pay a fine of three hundred dollars into the treasury of this State. You are also adjudged to pay the costs of this proceeding. The fines will be paid to the clerk of this Court, Avho is directed immediately to pay the same into the treasury of this State, and procure the receipt of the proper officer therefor, which lie shall file with the papers in this case. The sheriff will hold the respondents in his custody, until the fine and costs are paid to the clerk.”