I am unable to concur in the judgment. I wholly concur in what is said in the opinion to the effect that the respondent was guilty of a grave breach of duty as an attorney, and have no doubt that he could be proceeded against therefor under section 287 et seq. of the Code of Civil Procedure, wherein it is provided that an attorney and counselor may be removed or suspended for various causes, including a violation of his duties as attorney and counselor. But in view of the amendment of 1891 to section 1209 of the Code of Civil Procedure, discussed in the opinion, I am of the opinion that his acts cannot "be treated or punished as a contempt" of court.
The amendment, reading as follows, viz.: "But no speech or publication reflecting upon or concerning any court or any officer thereof shall be treated or punished as a contempt of such court unless made in the immediate presence of such court while in session and in such a manner as to actually interfere with its proceedings," while made a part of subdivision 13 of section 1209, cannot be restricted in its effect to such subdivision, for, in view of the subject-matter thereof, viz.: practicing law or holding one's self out as entitled to practice law, without a license, it would be meaningless and entirely without force if so restricted. It was clearly intended as a general rule, applicable to every possible charge of contempt, prohibiting courts from treating or punishing as contempts any mere speech or publication reflecting upon or concerning any court *Page 409 or officer thereof, unless made in the immediate presence of such court while in session and in such a manner as to actually interfere with its proceedings, and in effect providing that anything to the contrary theretofore appearing in the section notwithstanding, no such speech or publication should be treated or punished as a contempt of court. I cannot perceive in the language used any warrant for a different construction, and if the only "violation of duty by an attorney" (Code Civ. Proc. sec.1209, subd. 3) is the making of a speech or publication reflecting upon a court and its members, not in the presence of the court while in session and not in such manner as to actually interfere with its proceedings, the case, to my mind, falls within the purview of the amendment.
It may freely be admitted that this court and the other courts which are established by the constitution have the inherent authority, under the constitution and independent of statute, to prevent interference with the exercise of the powers confided to them, and the enforcement of their orders, judgments, and decrees, and that such authority cannot be taken away or unreasonably restricted by the legislature. It may also be conceded that a speech or publication may be made under such circumstances, although not made in the presence of the court while in session, that it would actually interfere with the proper exercise of its powers by the court in a proceeding pending before it. As to such a case, the power of the legislature to unreasonably limit the court by prohibiting any punishment of the guilty person may well be doubted. But the case at bar is admittedly not such a case. The letter written by respondent was not designed to affect the action of the court in any matter pending before it, and could not possibly have such effect, or interfere in any degree with the action of the court or the enforcement of any order it might make in any proceeding. It was a mere private communication to another party, and the sum and substance of its offending was that it contained false statements reflecting discreditably upon the members of this court. A court has no inherent power to punish such acts as contempts, for they do not actually interfere with the exercise of the powers confided to it by the constitution. In the absence of statute authorizing other method, the remedy of a judicial officer who is merely assailed by slanderous or libelous statement is the same as *Page 410 that of any other citizen. It is, however, within the province of the legislature to provide that acts, speeches, or publications not actually interfering with the exercise of its powers by a court shall constitute a contempt and be punishable as such, but with respect to such acts, the legislature likewise has the power to modify any provision so made in such manner as it sees fit. When such an act is made a contempt by statute, it is a contempt solely because the statute so provides, and any change in the statute removing such an act from the category of contempts, divests it of that character. To my mind, the amendment of section 1209 of the Code of Civil Procedure, in 1891, divested such acts as that of which respondent was guilty, of the character of a "contempt of court," and makes it impossible for us to treat or punish it as such a contempt.
Beatty, C.J., concurred.