Garland v. State of Georgia

Gardner, Presiding Judge,

dissenting. The power to punish for contempt is of very ancient origin. The courts have long exercised this power even as early as the annals of the courts. A trial judge’s opinion of any conduct and language addressed to the judge presiding in the case is final unless abused. It is within the power of the trial judge to determine whether the language used and the attorney’s conduct constitute, a contempt of the court and an impediment of the administration of the law in the particular case before him. In this the trial court has a broad discretion and his order cannot be reversed unless that discretion is abused. This long has been the law.

The facts constituting contempt cover a wide range. The most familiar forms of contempt are found in cases involving conduct which hinders, delays and obstructs the administration of justice. These are usually committed in the progress of some cause. Acts which bring the court into disrepute or disrespect or which offend its dignity or affront its majesty or challenge its authority constitute contempt. An attorney is an officer of the court and whatever he does which impedes or obstructs the administration of justice by using contemptuous words and acts is contemptuous and may be properly punished.

It is peculiarly the duty of any attorney (an officer of the court) to maintain the respect due courts, and any breach of this duty is a contempt. An attorney may be guilty of contempt of court by misconduct during a trial which tends to embarrass the administration of justice as by disobeying a proper and lawful order of the court or of addressing to the judge language improper in manner or tone. See West v. Field, 181 Ga. 152 (181 S. E. 661, 101 A. L. R. 465 et seq.).

In Fisher v. Pace, 336 U. S. 155, 161 (69 S. Ct. 425, 93 L. Ed. 569) that court said: “In a case of this type the transcript of the record cannot convey to us the complete picture of the courtroom scene. It does not depict such elements of misbehavior as expression, manner of speaking, bearing, and attitude of the peti-

*843tioner. Reliance must be placed upon the fairness and objectivity of the presiding judge. The occurrence must be viewed as a unit in order to appraise properly the misconduct, and the relationship of the petitioner as an officer of the court must not be lost sight of.” In Ex parte Terry, 128 U. S. 289, 313, (9 S. Ct. 77, 32 L. Ed. 405), the U. S. Supreme Court said: “We have seen that it is a settled doctrine in the jurisprudence both of England, and of this country, never supposed to be in conflict with the liberty of the citizen, that for direct contempts committed in the face of the court, at least one of superior jurisdiction, the offender may, in its discretion, be instantly apprehended and immediately imprisoned, without trial or issue, and without other proof than its actual knowledge of what occurred; and that, according to an unbroken chain of authorities, reaching back to the earliest times, such power, although arbitrary in its nature and liable to abuse, is absolutely essential to the protection of the courts in the discharge of their functions. Without it, judicial tribunals would be at the mercy of the disorderly and violent, who respect neither the laws enacted for the vindication of public and private rights, nor the oflKcers charged with the duty of administering them.”

A direct contempt consists of words or acts committed in the presence of the court or spoken so near to or during its intermissions which tend to embarrass, prevent or obstruct justice. In Cabot v. Yarborough, 27 Ga. 476 (which case concerned-a civil contempt, and not criminal direct contempt as is involved in the present case), the Supreme Court said: “Questions of contempt are for the court treated with the contempt; and its decision ought to be final, except, perhaps, in the case in which the decision shows an enormous abuse of the discretion.”

In the celebrated case of In re Fite, 11 Ga. App. 665 (2) (76 S. E. 397), the Court of Appeals held: “The power to punish summarily for contempt is incident to courts of record, and to try a case of contempt without the intervention of a jury violates no constitutional provisions. As to courts created by the Constitution, the right to define contempts cannot be abridged or taken away by legislative action.”

In the early case of Bradley v. State, 111 Ga. 168, 170 (36 *844S. E. 630) the Supreme Court said: “The power to punish for contempts is inherent in every court of justice. It is absolutely necessary that a court should possess this power in order that it may carry on the administration of justice and preserve order and decorum in the court. As far as we can ascertain, this power has existed since courts were first established. Judge Wilmot, in 1795, in a treatise upon the subject, said he had been unable to find where it was first exercised, but in his opinion it was as old as the courts themselves. All the courts, their decisions, and all the text writers lay down the same doctrine, ■—that this power is necessary to all courts and is inherent in them. It is so well established that we deem it unnecessary to cite authorities upon the subject. This power being inherent and necessary, can the legislature by defining what are con-tempts limit the courts to treating as contempts such acts only as are embraced in the legislative definition? In the formation of our government, Federal and State, the three departments of government were in each constitution ordained to be separate, distinct and independent of each other. No one of them had any right or power to infringe upon the power or jurisdiction of the other, without an express constitutional provision granting this right or power. The legislature cannot take away, restrict, or modify any of the powers conferred by the Constitution upon the executive. Nor can the executive infringe upon the powers of the legislature. Nor can either the legislative or executive abridge the powers conferred by the Constitution upon the courts, unless express authority is given. Each of these departments represents the sovereignty of the people. Indeed, the executive, the legislature and the judiciary are but the servants and agents of the people. To each department the people have given certain powers, and have declared that neither of the other departments shall interfere therewith. The people have intrusted these servants or agents with the duty of carrying out their will, and for that purpose, in one of these departments, they have by their organic law established certain courts. Among these are the superior courts. When these courts were established by the Constitution, they were established with all the rights and powers possessed by all courts of record prior *845to that time. Among these powers was that of defining [italics ours] and punishing contempts of court, whether such contempts were direct, that is, committed in the presence of the court, or constructive, interfering indirectly with the administration of justice. This power was incident to the court itself and belonged, not to the judges as individuals but to the court. The courts established by the Constitution were established by the people and represented the majesty of the people. Whoever disobeyed an order of such a court, or was in contempt of its proceedings, or did anything which tended to impede or corrupt the administration of justice committed a contempt against the majesty of the people. Without power and ability to preserve order and decorum, to preserve the purity of jury trial and to enforce their own orders, and the like, courts could not carry out the wishes of the people. The courts established by the Constitution were therefore vested with all these necessary powers,—■ powers which were at common law possessed by all courts of record. Whatever a court of record could, under the common law, punish as a contempt, these courts had power to deal with as a contempt. This power came to them as much as did the common law. Indeed it is a part of the common law. 1 Bailey on Jur. § 297. When the constitutional convention established our courts, it vested in them all the power necessary to carry out the purposes for which they were designed. Such a court, established with such powers, is not in the exercise of these powers subject to legislative control. The superior court is a constitutional court, established with these powers, and the legislature has no right, without express constitutional authority, to abridge, restrict, or modify either its jurisdiction or its powers, [citations] . . . Paragraph 20 of section 1 of article 1 of the Constitution of our State (Civil Code, § 5717) [§ 2-120, Code of 1933] in the bill of rights, says: ‘The power of the courts to punish for contempts shall be limited by legislative acts.’ We think that neither a literal nor a liberal construction of this paragraph can make it mean what counsel for the plaintiffs in error insisted it did mean. The word ‘power’, used in this connection and as applied to courts, means ‘the right, ability, or faculty of doing something’ (Bouvier’s Law Diet., 2d *846ed., title ‘power’); it is ‘the ability to act, regarded as latent or inherent; the faculty of doing or performing something; capacity for action or performance’ (Webster). The word ‘punish’ is defined by Webster to mean ‘to impose a penalty upon; to afflict with pain, loss or suffering for a crime or fault; . . . to inflict a penalty for [an offense] upon the offender;’ and by Anderson, ‘to impose a penalty for the commission of a crime’. Giving to these two words their ordinary and usual meaning, the paragraph would read as follows: The right or authority of the courts to impose penalties or inflict punishment for con-tempts shall be restricted by legislative acts. If the framers of the Constitution had desired that the legislature should classify and define contempts of court, they would certainly have put in this paragraph or in some other words expressly giving the legislature the power to do so. Had they said that the legislature should have power to define what are contempts there could be no possible doubt upon the subject . . . Such a court may still ‘go beyond the provisions of the statute in order to preserve and enforce its constitutional powers by treating as contempts acts which clearly invade them’. Rapalje, Con-tempts, § 11.”

The language used by the attorney in the case of White v. State of Ga., 71 Ga. App. 512 et seq. (31 S. E. 2d 78) was: “I think your Honor has such antagonism toward me personally that I just can’t, your Honor, seem to try a case before you without you jumping on me unnecessarily. That is not necessary, but that is the way I feel about it”. The late Chief Judge of this court, Judge Broyles, wrote the opinion and deemed such language to be contemptuous of the trial judge in that case.

Since the Bright trial in the Superior Court of Fulton County lasted nearly two weeks, no doubt it is true that the judge, the jurors and counsel probably were exhausted, but the decorum accorded justice by the proper administration of our laws should never waver, never wane and become lax, and the firm but just administration of our laws must ever be without the slightest laxity, and must be administered with a just, yet often a stern hand. Never must we forget that the rights and liberty *847of our people, and oftentimes their lives, are involved in the proper administration of justice. Our judges, our counsel and our jurists, who are all officers of the court, must always be alert to see that all is done within their power to the end that the innocent do not suffer or the guilty go unpunished. Thus we have the inherent power in every constitutional trial court to preserve the dignity and decorum required and necessary to uphold all officers of the court in a fair, impartial and solemn administration of justice to the poor and the affluent alike within the precepts of our law, insuring to all a fair deal. Therefore our forefathers, in the framing of the national as well as Georgia’s Constitution, empowered trial courts with the power to preserve judicial decorum, including punishment for contempt of the court. A trial judge has the power to define what language is contemptuous to the court. These courts are vested with a wide and broad discretion in such matters. See Bradley v. State, 111 Ga. 168, supra, and In re Fite, 11 Ga. App. 665, supra, as well as many other decisions. Such appellate court rulings and opinions are all to this same effect, that is, that it is within the discretion of the trial courts to determine what is contempt. The presiding judge himself, namely, the judge before whom such language, acts, mannerisms, etc. occur, must decide what language or acts, if any, were subject matter of punishment for contempt. Where it is not a clear case of abuse of the discretion of such trial court or presiding judge, the appellate courts are bound by the determination of the trial court or judge thereof as to whether or not the language addressed to the judge or the manner displayed or the acts employed by the attorney (or other person) before or in the presence of the court, constituted a direct or criminal contempt. In the case sub judice, the language, the acts of, and the manner used by counsel, Reuben A. Garland, to his Honor, Japtha C. Tanksley, the judge presiding in Fulton Superior Court, a constitutional trial court under the law and Constitution of Georgia were determined and adjudged by the judge presiding to be a contempt on the part of attorney Garland. This determination of the trial judge is final, in the absence of flagrant abuse of discretion, and no such abuse appears. See Bradley v. State, *848supra, In re Fite, supra, and others to this same effect, i. e., that it is within the discretion of the trial courts to determine whether or not a contempt has been committed.

We have here the record containing the language addressed by attorney Garland to Judge Tanksley, and subject matter relating to the attorney’s demeanor, manner and conduct. His Honor, Judge Tanksley, did rightfully, and consistent with the law and justice, determine attorney Garland to be in contempt of the court. No jury question is involved. It is my opinion that Judge Jeptha C. Tanksley properly held attorney Reuben A. Garland to be in contempt of court by the language addressed to the court and the tone and manner thereof, as well as by the acts and conduct of the said attorney in the court’s presence, and being one of the Judges of the Superior Court of Fulton County, a constitutional court, did not abuse his discretion in the premises.