(concurring).
I concur in the order annulling and vacating the judgment of the lower court.
It is a well-settled, and I might add, a universally recognized, principle of law that courts of record have the inherent power to punish for contempts. Courts without this power could not preserve order in judicial proceedings, nor could they enforce their orders, judgments, and decrees, and would therefore be courts in name only. In fact, without it our judicial system could not exist and retain any of its' usefulness. This power has been so long conceded and so often exercised by the courts, both state and federal, of this country, that it would be a work of supererogation to cite the many cases in which it has been invoked and upheld. Attention, however, is invited to the following cases, in some of which will be found extensive reviews of the authorities and elaborate discussions of the subject in all- its phases: State v. Frew, 24 W. Va. 416, 49 Am. Rep. 257; Matter of Sturoc, 48 N. H. 428, 97 Am. Dec. 626, and note; State *220ex rel. v. Shepherd, 177 Mo. 205, 76 S. W. 79, 99 Am. St. Rep. 624; People v. Wilson et al., 64 Ill. 195, 16 Am. Rep. 528; Cooper v. People ex rel. Wyatt, 13 Colo. 337, 22 Pac. 790, 6 L. R. A. 430; State v. Bee Publishing Co., 60 Neb. 282, 83 N. W. 204, 50 L. R. A. 195, 83 Am. St. Rep. 531; People v. News-Times Pub. Co., 35 Colo. 253, 84 Pac. 912; Ex parte Robinson, 19 Wall. 505, 22 L. Ed. 205; 7 Am. & Eng. Ency. Law, 30; 9 Cyc. 26. Contempts are either direct, such as are committed in the presence of the court, or constructive, consisting of acts done not in the presence of the court but at a distance, which tend to obstruct, prevent, or embarrass the administration of justice, (9 Cyc. 5, 6, and 19, and cases cited in the notes.) Contempts consisting of publications are therefore constructive, and may be classified as follows: (1) Those which in no way reflect upon or tend to impeach the integrity of the court, and do not tend to intimidate witnesses or jurors, but which nevertheless are calculated to affect the result of an action or proceeding pending before the court; (2) those which purport to dictate to any one connected with the cause or proceeding as to what his action should be touching any matter under investigation, or which are designed or that tend to intimidate witnesses or jurors and are thereby calculated to prevent fair and impartial action; and (3) those concerning a pending cause, trial, or investigation which reflect upon and tend to discredit or degrade the court, counsel, parties, jurors, or witnesses. Neither of the publications in question contains any statement or matter that reflects upon or in any way tends to discredit the court or to bring it into disrepute, or that would tend to intimidate witnesses or jurors. Therefore, as stated by counsel for petitioners in their brief, “if the publications in the Herald-Eepublican amount to con-tempts of court, they belong to the class” first above enumerated. There is no statement, comment, or matter in either of the publications that shows, or tends to show, or that even indicates or suggests, any effort or design on the part of petitioners, or any of them, to influence the action of the court or that of any witness or juror in the trial of the *221-causes mentioned. The decisions cited by counsel for the district judge, defendant herein, with possibly three or four •exceptions, belong to one or the other of the two classes of contempts last above mentioned. In nearly every case cited •and relied on by counsel as an authority sustaining their theory of the case the alleged contempt consisted of defamatory publications which reflected upon and tended to discredit the court, or of publications that purported to dictate or suggest what the action of the court, or some party connected with the trial of the cause, should be, or that had! a tendency to intimidate witnesses, jurors, or other parties connected with the matter under consideration. The cases referred’ to, some of which I have cited as illustrating the power of •courts to punish for contempts of court, contain able and elaborate discussions of the freedom of the press and the scope of the jurisdiction of the court in contempt eases. Conceding, as I do, that they contain correct expositions of the law and were correctly decided, yet they nevertheless are not decisive of the proceeding at bar. Those cases are based on an entirely different state of facts from the case at bar.
Plaintiffs under oath have disclaimed in their answers to the affidavits charging contempt any intention to reflect upon the court, or to in any way obstruct, impede, or interfere with said causes then pending by the publication of the articles in question. And no evidence was introduced, nor was any offered, tending to show culpability on the part of the plaintiffs in this regard. Counsel for the lower court in their brief say:
“In the present case it was neither a libel nor slandbr ■on the judge personally, on the court, the district attorney, the jury, or any of the court’s officers to write the articles in ■question, or even to make extensive criticisms of the defendants in those cases.”
■Counsel contend, however, that the tendency of the articles was to impede and interfere with the trial of the causes -concerning which the articles were written and published by rendering persons who might read the articles unfit to act as jurors in said' causes.. This is the important, in fact, *222it is the controlling, question presented by these proceedings^ If the articles tended to have this effect, the publication of them, under the circumstances, as admitted by the plaintiffs-, was an unlawful interference with the trial of the-cause to which the article referred. And this would be so,, regardless of whether the articles were published and given to the public with good or bad intent. (9 Cyc. 21; State v. Howell, 80 Conn. 668, 69 Atl. 1057, 125 Am. St. Rep. 141, 13 Ann. Cas. 501.) Where an act is adjudged to be a contempt of court, a disavowal by the contemner of any intent to commit a contempt does not necessarily purge him of the offense, but such disavowal may be considered by the-court in rendering judgment as an extenuating circumstance. (9 Cyc. 25-26, and oases cited in note 37.)
As stated, the decisive question here presented is, Did the publication of the articles in question by the Herald-Republican tend to interfere with and impede the trial of the-causes to which they referred by disqualifying persons who might read them from serving as jurors in said causes ? The-district attorney alleges in his affidavit that on the day (March 27, 1910) the confessions of Riley and Thorne were obtained by the police officers they were given to representatives of the daily newspapers of Salt Lake City, and on the following day “each of said daily newspapers, including the Salt Lake Herald-Republican, in Salt Lake City, Htah, published the said confessions in full.” On June 13, 1910,. the case of State v. Riley was called for trial, and one juror was secured from the panel of jurors then in attendance for the trial of said cause. On the following morning the first of the publications complained of appeared in the Herald-Republican. The question regarding the effect the article had on the jurors who were called into the jury box in that case was carefully considered by this court in an opinion affirming the conviction of Riley for the murder of Fassell. (State v. Riley, 41 Utah, 225, 126 Pac. 294.) The question was raised in that case by a motion for a change of venue based on the publication of the article. This court, *223■after setting forth the substance of the article, disposed of the question as follows:
“The important question therefore is: Ought the court to have ■been satisfied from the showing made that the defendant could not ■obtain a fair and impartial trial in Salt Lake County? The court in commenting and passing on the motion, said: T do not think there is any ground for a change of venue. The examination of the jurors did not disclose such feeling as would warrant a change of venue. . . . Some of them were disqualified by reason of having read the paper; but none of them indicated any hostility to the defendant. . . . There is no indication of public feeling in the examination of the jurors, and the article in this morning’s paper would not tend to arouse public feeling in the sense that it would be unsafe for the defendant to go to trial.’ The views of the court thus expressed respecting the effect, if any, that the newspaper article had on the proceedings and the general state of public opinion in Salt Lake County towards the defendant, are fully supported by the record. Of all the jurors examined only •seven, so far as shown by the record, read the article in question, and one of the seven was accepted and sworn to try the ease. Another of the jurors who had read the article was passed for cause by the prosecution and defense, and was challenged peremptorily by the state. In fact, after the second day of the trial, neither the prosecution nor the defense seemed to regard the article mentioned as an element or factor in the case. Some of the jurors were not even interrogated in reference to the article. And we think the examination of the jurors generally shows conclusively that the public sentiment in Salt Lake County towards the defendant was not such as would tend to prevent him from having a fair and impartial trial. The court at the time of the motion for a change of venue stated that if, upon further examination of the jurors, it should appear that the defendant was prejudiced by the publication of the newspaper article mentioned, leave would be granted the defendant to renew his motion for a change of venue. This the defendant did not do. He went to trial without further objection, and submitted the case to the jury without having exhausted his peremptory challenges. In fact, we think it clearly appears from the record that no greater difficlty was experienced in obtaining a jury than is usually met with in this class of cases. We are therefore of the opinion that the court did not err in denying the motion for a change of venue.”
The opinion also discloses that Riley in his affidavit filed in support of his motion for a change of venue, alleged that at the time the crime was committed for which he was on trial, and for several days thereafter “the public journals of Salt City published full and detailed accounts of the *224tragedy alleged and of the parties concerned therein, alleged to have been the parties who perpetrated the alleged crime, . . . and) made such strong statements of the evidence and all matters . . . connected therewith that public opinion formed very strongly against this defendant, and considerable excitement was created in the public mind at that time on account of the ti’ansaction as alleged in the newspapers, which excitement and public opinion ran so high that the county officials having this defendant in custody were compelled to remove him from the county jail to the Utah State Prison to prevent him being a: victim of mob violence . . . [Reference is here made to the newspaper article mentioned, a copy of which is attached to the affidavit and made a part thereof.] That he has reason to’ believed, and1 does believe, that the said Herald-Republican has a large circulation and is extensively read throughout Salt Lake County, and that the article herein referred to and made a part hereof has and will mold public opinion as to render a fair and impartial trial impossible in Salt Lake County. Affiant further believes that, by reason of the sentiment heretofore created and revived and extended by the article hereto attached, justice cannot be had in Salt Lake County. . . .” No counter affidavits were filed. The district attorney then contended, and the court ruled, that the publication of the article even when considered in connection with other “detailed accounts of the tragedy,” theretofore published in “the public journals of Salt Lake City,”' did not prevent, or tend to prevent, Riley from having a fair trial by an impartial jury. This ruling was made on the same day, J une 14, 1910, and immediately following the-making of the order directing the district attorney to commence proceedings against the Herald-Republican for contempt of court. On June 23, 1910, the day on which Riley was convicted of the murder of Hassell, the district attorney made and filed the affidavit on which these proceedings are based. It is alleged in the affidavit “that said publication . . . did greatly prejudice and bias the minds of many persons throughout said county against the defendant (Riley) *225so on trial, and did greatly prejudice and bias the minds of many persons who were prospective trial jurors in said cause against said defendant, so that it became and was very difficult to secure qualified trial jurors for the trial of said case; . . . that many of said fifty prospective jurors [referring to fifty jurors brought into court on a special ve-nire issued June 13, 1910] read said Thorne confession so published in said paper before their attendance upon court at ten o’clock a. m. on said day, and the reading of said publication caused such a prejudice against said Hays (Riley) in the minds of many of said fifty jurors that by reason thereof they were not qualified to act as jurors in said case.'’ After the filing of this affidavit by the district attorney, Riley moved the court for a new trial. The court denied the motion and sentenced Riley to be executed.
It seems that the district attorney and the trial court proceeded upon the theory that so far as Riley was concerned, who was on trial for his life, the publication of the article neither prejudiced nor tended to prejudice the cause, but for the purpose of proceeding against the Herald-Republican for contempt of court the publication of the article was calculated to prejudice, and in fact did “greatly prejudice,” the cause. And in the judgment of the court it is recited that “the court finds and adjudges that the said Herald-Republican Publishing Company, a corporation, is guilty of contempt as charged in the affidavit.” These two positions are antagonistic to, and at variance with, each other. lithe article had the prejudicial effect on the community in Salt Lake County and on “the minds of many persons who were prospective jurors,” etc., claimed for it in Riley’s affidavit, and in the affidavit filed by the district attorney, and as found by the trial court in its judgment against the Herald-Republican, he, Riley, was entitled to a change of venue, and, not having obtained a change of the place of trial, he should have been granted a new trial. But, as we have pointed out, the record in that case affirmatively shows that the publication did not have the pernicious effect claimed *226for it in. the two affidavits mentioned and as found by the trial court in rendering judgment against the Herald-Republican. In fact, the record! in that case tends to show that the article had no prejudicial effect whatever in the trial of the case. As stated by this court in the opinion affirming the judgment in that case:
“After the second day of the trial, neither the prosecution nor the defense seemed to regard the article mentioned as an element or factor in the case. Some of the jurors were not even interrogated in reference to the article.”
And the trial court, by denying Riley a change of venue and overruling his motion for a new trial, in effect held that his rights were not prejudiced by the publication of the article. These rulings were sustained by this court in the opinion referred to, which correctly reflects the record! as made by the lower court. It is therefore judicially determined both by the trial court and this court that the publication of the article did not prevent Riley from having a fair and impartial trial by an impartial jury.
The Herald-Republican in its answer “disclaims any intention whatever to reflect upon the court, or in any way show any disrespect therefor, or to in any way interfere, obstruct, or impede the proceedings of said cause (State v. Riley) then on trial in said court, by the publication of said article,” and it further alleges that the article was- published as an item of news. As hereinbefore observed, there is nothing in the article itself which indicates, or that justifies an inference, that it was published with intent to interfere with the trial or to in any way influence the action of anyone connected with the trial of the cause. The article consists of a dispassionate recital, in a general way, of the facts and circumstances of the killing of Fassell, and the arrest of Riley and Thome, together with Thorne’s confession which had theretofore been published in the Salt Lake daily newspapers, including the Herald-Republican. We therefore have a case in which a party is cited into court, adjudged guilty of contempt of court for the publication of an article *227merely as an item of news, without any intention, so far as shown by the record, of interfering with the proceedings of the court, and which in no way reflected upon or showed any disrespect for the court, and! did not, as shown by the record of the case to which it referred, interfere with or prejudice said case.
I have found no case, either state or federal, in which it is held that the publication of an article in a newspaper concerning a pending action, which is given to the public merely as an item of news, and which in no way reflects upon the court or its officers, and does not purport or assume to dictate or suggest what the action of anyone connected with the cause to which it refers should be, and which contains no statement or matter that would tend to intimidate any witness, juror, or other person connected with the action, and which both the trial and appellate court held did not prejudice the trial of the cause, and which the record of the cause to which the article referred affirmatively showed did not interfere with or impede the trial of the action, is contempt of court. True, the trial judge, at the time he overruled Riley’s motion for a; change of venue, remarked that “the examination of the jurors did not disclose such feeling as would warrant a change of venue. . . . Some of them were disqualified by reason of having read the paper.” The court evidently referred to former issues of the paper, because the record of the case then on trial, as incorporated’ in the opinion of this court, shows that at the time these remarks were made none of the jurors had been interrogated regarding the article in question. Counsel for the state, in their discussion of the case in their brief, say: “It is apparent that, when a court once finds in any case that published statements do not tend to embarrass the administration of the law or to prevent a fair trial on the merits of a case then pending, of course, the contempt charge must fall at once to the ground, because the whole foundation is taken from under the charge.” As suggested, the trial court by denying Riley’s motion for a change of venue in effect held that the article did not tend to prevent the defendant from having a fair *228trial, and later on, in overruling bis motion for a new trial, in effect beld tbat tbe article as a matter of fact bad1 not prevented bim from having a fair trial by an impartial jury. And tbe opinion of tbis court in tbat case clearly shows tbat tbe publication of tbe article did not interfere with or impede tbe trial of tbe case.
What I have said regarding tbe first article published and its effect upon tbe case to which it referred applies with equal or greater force to tbe second publication. Tbe district attorney, in tbe second affidavit filed' by bim, recited tbat in tbe case of State v. Thorne six jurors were secured on tbe first day of tbe trial. Thus tbe rapidity with which jurors were secured to try tbe case, in view of tbe fact tbat Thorne’s confession bad been published at least once in all of tbe Salt Lake daily newspapers and twice in tbe Herald-Republican, tends to show, if it tends to show anything in regard to tbe point under consideration, tbat tbe article did not tend to interfere with or impede tbe trial of tbe cause.
I am clearly of tbe opinion tbat tbe admitted! facts, and these are tbe only facts alleged tbat can be considered, do not show or tend to show that tbe plaintiffs, or either of them, were guilty of contempt of court, and tbat tbe court in adjudging them guilty of contempt acted without- jurisdiction, and tbat tbe judgment should be annulled and tbe plaintiffs discharged.