DISSENTING OPINION.
[Filed August 5, 1927.] I was not a member of the court at the time this action was begun, nor at the time of the publication of the article which the Attorney-General, in his amended information, has alleged to be contemptuous. For this reason I preferred not to participate in the decision of this case, but, at the request of my colleagues, and on their suggestion that by reason of the fact that I was not a member of the court at those times and did not participate in the decisions of the court that were criticized by the respondent, I would be in position to consider the matter impartially, I have consented to sit in the case.
After a careful consideration of all the facts alleged in the information, and in the answers of the respondents, I am unable to agree with the finding and order made by the court and respectfully dissent therefrom.
Opportunity has not been afforded, however, in which to prepare, in as careful a manner as I should desire, a statement of the reasons why I do not concur in the opinion which has been adopted by a majority of the court. While this proceeding has been at issue for more than a year and was assigned for the preparation of an opinion more than seven months ago, the opinion was first presented to the court for consideration, and discussion day before yesterday. Previously I had examined the pleadings and briefs herein, which cover more than 300 legal size pages of typewritten matter and had made some notes regarding the same, but I did not attempt, in advance of the preparation of an opinion by my colleague and of the adoption or rejection thereof, to prepare a statement of my views in the form of an opinion. But owing to the fact that the court has very properly determined that final action in this matter should be had without further delay, I shall endeavor to point out, as clearly as possible in the limited time at *Page 655 my disposal, the reasons for my dissent.
The principal indirect or constructive contempt alleged was the publication of the annual report of the state superintendent of the Anti-Saloon League made on January 19, 1926, to the board of trustees of that organization. This report was printed in pamphlet form and distributed to members of the league and it also appeared in the American Issue, Indiana edition, a newspaper published by the Anti-Saloon League at Westerville, Ohio. The other alleged constructive contempt was the publication of a statement regarding one of the judges of this court in the American Issue, almost three years ago, during a political campaign. The report of the superintendent to the trustees covers about three pages of the newspaper and contains between 6,000 and 7,000 words. Only a small portion of it is devoted to a discussion of the liquor law and the decision of the courts in liquor cases. Some mis-statements are made as to just what certain decided cases have held — mis-statements that one who is not trained in the law is apt to make in discussing technical legal questions (the respondent Shumaker is a minister) — but it appears to me that all the criticism therein contained is directed toward the judgment or reasoning of the court and not against the integrity or honesty of the court or of its members.
I shall set out in paragraphs numbered I to VII those parts of this report, the publication of which the Attorney-General alleges has rendered the respondents in contempt of this court, together with my comments on each of the paragraphs. Considered calmly and deliberately, in the light of the constitutional guaranty of free speech and writing, and with a tolerance for the opinions and convictions of others which may differ from our own, I do not believe that these paragraphs which follow and on which this action is based, considered separately or collectively, as published in the respondent's *Page 656 report to the board of directors or in the American Issue, or with any reasonable intendments, can be held to be contemptuous.
The information does not appear to charge that the respondent's statements were false in fact, but it alleges that the effects which the statements produced were false and were intended to be false. I believe that the intendments, constructions, inferences and imprecations contained in the Attorney-General's amended information are unwarranted, and that it was only by adopting them that the court has arrived at the conclusion that respondents are guilty of contempt.
I. "A majority of that court (the Supreme Court of Indiana)is at least liberal in its sentiments."
The word "liberal" means independent in opinion, broadminded, free from bigotry, not narrow or contracted in mind but inclined to welcome new ideas and reforms. The use of this word as here applied to the judges who constitute a court cannot reasonably be held to mean that the judges do not believe in enforcing the liquor law as it exists and that they "permit that fact to enter into their decisions," as the Attorney-General has interpreted it. And its use, even in the most extreme colloquial acceptance of the term, as one who is not favorable to prohibition, certainly does not justify the conclusion of the Attorney-General or of the majority of the court that the respondents meant to impute a lack of integrity to the court or any of its judges or meant "that at least a majority of the judges of this court are controlled by the liquor interests." To say that a judge is liberal in his views on the prohibition question or is "wet" is not the equivalent of a charge that he is corrupt.
II. "One of the members, Mr. Willoughby, is said to bebitterly hostile to prohibition, and if he had it in his power,would wipe all prohibition laws from the statutes."
There is a well-defined distinction between criticism *Page 657 of the court and criticism of a judge as an individual. The allegation that a judge is against prohibition and "would wipe all prohibition laws from the statutes" is far from an allegation that, so long as the prohibition laws remain on the statutes, such judge as a member of the court would not enforce the law as it exists. "In our jurisprudence the extraordinary action of contempt of court does not lie to heal the wounded sensibilities of a judge, it may be invoked only when the offending act impedes or disturbs the administration of justice." Francis v. People (1926), 11 F.2d 860, 865; see, also, 6 R.C.L. 512, § 25;State, ex rel., v. Circuit Court, infra; Neel v. State (1849), 9 Ark. 259, 50 Am. Dec. 209. The prosecution says regarding the statement: "If he had it in his power he would wipe all prohibition laws from the statutes," that "the plain meaning of this language is, that, if the particular judge had it in his power, he would by his decision wipe out all prohibition laws." I do not agree with this conclusion. It is quite common for judges who personally believe that the prohibition laws are unwise and that they should be repealed to enforce them to the letter. It is their duty to enforce the law as they find it, not as they would have it.
The common-law rule that the mere writing contemptuously of a judge was a constructive contempt of court "was founded on the obsequious and flattering principle that the judge was a representative of the king, but the theory of government which vests royalty with an imaginary perfection, and which forbids question or discussion, is diametrically opposed to the principles of a free and popular government, in which the utmost latitude and liberty in the discussion of business affecting the public and the conduct of those who fill positions of public trust that is consistent with truth and decency, is *Page 658 not only allowable, but is essential to the public welfare." 6 R.C.L. 512, citing Storey v. People (1875), 79 Ill. 45, 22 Am. Rep. 158.
III. "We trust that the next election will give us a SupremeCourt that will be dry and not wet."
So long as there is a prohibition issue and judges are selected by the process of popular election, discussions of "dry" and "wet" will be made preceding their elections, regardless of whether such discussions are pertinent or proper. A learned and conscientious judge acting as a court or a member of a court will decide or assist to the best of his ability in deciding the cases strictly upon the questions of law or fact involved therein regardless of his personal or political views on the prohibition question, but a court in an indirect contempt proceeding should not undertake the useless and idle task of telling the electorate what they shall not consider in exercising their franchise.
This paragraph III may be said to refer to the members or member of the court who sought re-election at the election following the paragraph's publication. No. VII, infra, also was published when the judge mentioned therein was a candidate for re-election. Attention is called in this connection to the case of State, ex rel., v. Circuit Court (1897), 97 Wis. 1, 72 N.W. 193, 65 Am. St. 90, 38 L.R.A. 554, where (as stated in 6 R.C.L. 510), it was held that "when a judge becomes a candidate for re-election public policy requires a full discussion of his past acts, subject only to the law of libel and not to the law of contempt." In that case an attorney had charged and a newspaper had printed the charges, several columns in length, that a judge had been partial and unfair in respect to his official conduct in the trial of causes and had been influenced by corrupt motives. The Supreme Court of Wisconsin said: *Page 659
"In the present case it is of the utmost importance to bear in mind that Judge Bailey was a candidate before the people for re-election. Had he been a candidate for any other office, it would not be contended by anyone that the publications in question would afford ground for any other legal action than an action for libel in the regular course of the law; but the claim is that because he was a judge, and was holding court at that time, such unfavorable criticism of his past actions may be summarily punished by the judge himself as for contempt. Truly, it must be a grievous and weighty necessity which will justify so arbitrary a proceeding, whereby a candidate for office becomes the accuser, judge, and jury, and may within a few hours summarily punish his critic by imprisonment. The result of such a doctrine is that all unfavorable criticism of a sitting judge's past official action can be at once stopped by the judge himself, or, if not stopped, can be punished by immediate imprisonment. If there can be any more effectual way to gag the press, and subvert freedom of speech, we do not know where to find it. Under such a rule the merits of a sitting judge may be rehearsed, but as to his demerits there must be profound silence. In our judgment, no such divinity as this `doth hedge about' a judge; certainly not when he is a candidate for public office."
IV. "We well remember how the late Colonel Eli F. Ritter,pioneer attorney for the temperance forces in Indiana, used tosay to us that when the liquor interests could no longer controlthe legislative or executive branches of the government, theywould then turn their attention to our courts and seek to controlthem. I think this true today in a bigger sense than everbefore, and that the law abiding people of our states will have to strive for the nomination and election of judges of such high judicial equipment and such a sense of honor and loyalty to the Constitution and the laws enacted thereunder, that will give judicial decisions carrying out in full and effective manner *Page 660 both the letter and the spirit of our Constitution and laws enacted thereunder."
The allegation of this paragraph is that the "liquor interests" (whatever they may be in this day of bootleggers, hi-jackers, moonshiners and home brewers) seek to control courts, not that this court is controlled by anyone. The prevailing opinion places in quotation marks as the statement of the respondent Shumaker the following: "that the liquor interests have gained control of this court." I am unable to find any such statement in any of the exhibits filed with the information. I submit also that the conclusion of the court that "the report in question . . . practically states that the liquor interests control our courts" is as unwarranted as its designation of Shumaker as "one whose livelihood is sustained apparently by donations from the people obtained either by fair or false means," is unfair and without the record.
This discussion can be considered to refer exclusively to this court and to be in contempt of it only by a wide stretch of the imagination. It follows immediately a paragraph entitled "Laxity of Courts," in which is discussed the number of cases and percentage of convictions in the criminal court of MarionCounty; it refers generally to "our courts," and is followed by a paragraph reading as follows:
"To those who would urge that we are attacking the courts, and encouraging disrespect for the same, I would say that our courts are the servants, not the masters, of the general public, and that nothing but the highest respect should be held for our American judiciary, even though it may at times err. But, it should be remembered that the Republican party itself was born as a protest against a decision of the United States Supreme Court — the Dred Scott decision — and that Abraham Lincoln was one of many *Page 661 liberty loving citizens who expressed strong criticism of that decision."
This latter paragraph certainly makes clear the respondents' position — that of a protest against what they believe to beerroneous decisions of the courts. What was said about the Dred Scott decision has often been stated as a fact, and honest criticism by one who believes a decision is erroneous and gives his reason therefor must always be permitted, if free institutions are to survive in this republic.
Abraham Lincoln, in his debates with Douglas and in his first inaugural address, scornfully refused to treat the decision of the Supreme Court of the United States in the Dred Scott case as permanently binding upon the people. "Somebody has got to reverse that decision," he shouted to Douglas, and it was Lincoln who there laid down the doctrine so strenuously objected to in the majority opinion herein, that the people are the masters of the courts. Certainly this court would not impute to the immortal Lincoln any intention or desire that courts should be "subservient" to any power other than "the Constitution of the United States, the Constitution of this state and the established law of the land" or that "any political party or any body or association of people, having the power to elect or defeat judges, should control or dictate decisions."
V. "Only about six state Supreme Courts have held that a defective search warrant should operate to let a guilty person go free. Our own state Supreme Court is one of those six states.
"This court in the Callender case from Elkhart, and more particularly in the Flum case from Beech Grove in Marion County, and these reinforced by a number of later decisions, has heldthat no matter how guilty a person may be of violating theprohibition law, even though he *Page 662 might have as many as three stills in his house and be engagedin manufacturing a white mule that is poisonous and deadly in itseffects — should there be any mistake in the search warrant —such a person must be turned free. We think that such rulings,coupled with the splitting of judicial hairs in many cases comingbefore our Supreme Court whereby substantial justice has beendefeated repeatedly and has been to a great degree responsiblefor the great increase in the appeals of criminal cases to ourstate's highest judiciary."
The cases referred to are Callender v. State (1922),193 Ind. 91, 138 N.E. 817, decided more than five years ago andFlum v. State (1923), 193 Ind. 585, 141 N.E. 353, decidedalmost four years ago.
The Callender case established the rule in Indiana (followed in the Flum case and later decisions) that evidence obtained under a search warrant illegally issued was inadmissible. The respondent's designations "mistake in the search warrant" and "defective search warrant," were inaccurate, but not so grossly inaccurate as to indicate, on the part of the layman who was reporting the decision, a malicious motive. It must be admitted that the court in the Callender case adopted for Indiana a rule of law that is in effect in only a small minority of the states of the Union and contrary to the rule of at least thirty-four of the states. See note 1, dissenting opinion, Wallace v. State (1927), 199 Ind. 317, 157 N.E. 657. The rule which was adopted in Indiana has often been freely criticized by courts and legal writers as well as by laymen, but never before to my knowledge has such criticism resulted in contempt proceedings.
The Attorney-General says the decision of the Callender case was incorrectly stated by the respondent who stated that its effect was to turn Callender free, and that what was decided was that "the defendant should be *Page 663 tried again in accordance with the law and the Constitution." The mandate of the court was:
"The judgment is reversed, with instructions to the trial court to sustain appellant's motion for a new trial and for further proceedings not inconsistent with this opinion."
Anyone who can read and understand must know that any "furtherproceedings not inconsistent with this opinion" would result in "turning the defendant free."
It may be noted in passing that while the court in the Callender case, p. 96, in declaring the search warrant to be insufficient, says that the appellant "sets forth evidence from the record to show that the alleged search warrant was signed by the chief of police and that no affidavit had been filed before an officer authorized to issue a search warrant," the record and the appellant's brief both show that the following testimony was given by the captain of police who made the arrest:
Mr. Jay (attorney for Callender): "I will ask a preliminary question, if the court please.
"Q. Did you have a search warrant when you went down there? A. Yes.
"Q. From whom did you get it? A. Chief Manning.
. . .
"Q. By whom was your search warrant signed? A. The chief of police, Mr. Manning.
. . .
"Q. What premises were directed to be searched? A. Edward Callender's.
"Q. Any description in the warrant? A. I don't remember; there most always is.
. . .
"The court: Just a minute, captain, you understand when Mr. Jay says the chief's name was signed at the bottom of the warrant, do you mean *Page 664 to say that the chief gives the search warrant, or have you in mind the affidavit on which the search warrant was based? A. I had the affidavit in mind.
. . .
"Q. What, if anything, captain do you know whether or not the search warrant was issued from the city court. A. I think it was.
"The court: Do you understand that an affidavit is a search warrant? A. No, sir.
. . .
"Q. Was the warrant that was placed in your hands for searching the premises of Mr. Callender, signed by the chief of police or by the judge of the city court of the city of Elkhart? A. It would be signed by the judge of the city court."
The charge of splitting judicial hairs is a very common one. There has been a great deal of discussion for many years about decisions by courts of cases not upon their merits but upon technical or hair-splitting questions. A reference to the reports of many different courts will convince any impartial investigator that such cases exist. I am of the opinion that the ablest lawyers of our state, as well as the people at large, believe that technical and hair-splitting decisions should be avoided whenever legally possible and that brushing aside those purely technical questions often results in substantial justice being accomplished which would otherwise be defeated. Not only is this my belief, but it is the law, as is shown by the following statutes:
"Judgment not reversed for technical errors in the pleadings or proceedings. — The court must, in every stage of the action, disregard any error or defect in the pleadings or proceedings which does not affect the substantial rights of the adverse party; and no judgment can be reversed or affected by reason of such error or defect." § 426 Burns 1926.
"Defect in form, etc., no ground for reversal. — No *Page 665 judgment shall be stayed or reversed, in whole or in part, by the Supreme Court, for any defect in form, variance or imperfection contained in the record, pleadings, process, entries, returns, or other proceedings therein, which by law, might be amended by the court below, but such defects shall be deemed to be amended in the Supreme Court; nor shall any judgment be stayed or reversed, in whole or in part, where it shall appear to the court that the merits of the cause have been fairly tried and determined in the court below." § 725 Burns 1926.
"When not to be quashed. — No indictment or affidavit shall be deemed invalid, nor shall the same be set aside or quashed, nor shall the trial, judgment or other proceeding be stayed, arrested or in any manner affected for any of the following defects: . . .
"Tenth. — For any other defect or imperfection which does not tend to the prejudice of the substantial rights of the defendant upon the merits." § 2225 Burns 1926.
"Technical errors disregarded. — In consideration of the questions which are presented upon an appeal, the court shall not regard technical errors or defects, or exceptions to any decision or action of the trial court which did not, in the opinion of the court to which the appeal is taken, prejudice the substantial rights of the defendant." § 2394 Burns 1926.
The criticism by the respondent of hair-splitting decisions is not nearly so severe or caustic as has been heard even at bar association meetings.
VI. "In the case of the United States v. Borkowski, 268 Fed. 408, it is held that where officers smelled raisins cooking and saw a light in the cellar of a house and persons there moving around and their experience told them that the odor of boiling raisins meant that a crime was being committed, they had a right to enter and seize the utensils employed, and that as an officer may arrest when he actually sees the commission of a misdemeanor, he may do the same if the sense of smell informs him that the crime is being committed. In the case of Adonia *Page 666 v. State, appealed from Vigo county, our court takes the opposite view. In this case, the officers distinctly smelled mash cooking in a small house. They entered, found a still and arrested the owner. The court reversed the case, holding that the officers had no right to enter the house without a search warrant."
The case referred to is Dumas v. State (1925),197 Ind. 123, 150 N.E. 24. The Attorney-General, in the present case, after giving his view of what is "a true report" of the Dumas case, says that the respondents herein:
"Falsely represent the decision as resting on the same kind of facts as those in the case of United States v. Borkowski (1920), 268 Fed. 408 . . . and they falsely state that this court in the said case of Dumas v. State took the opposite view to that taken in the federal case and falsely state that the said case of Dumas v. State holds opposite to the decisions of the Supreme Court of the United States on the question of the lawfulness of the search of a private dwelling without a search warrant."
An examination of the text of the Borkowski case and the record in the Dumas case clearly shows that the facts were similar and that the Indiana Supreme Court did take a different view of the application of legal principles to those facts, from the view taken by the United States Supreme Court.
The following is quoted from United States v. Borkowski (1920), 268 Fed. 408, at page 412:
"A warrant had been issued for the search of a nearby house. While engaged in the search, the officers smelled raisins in the process of cooking somewhere. They saw a light in the cellar of a house, perhaps two or three doors away. Persons could be seen there moving around. The officers went to such a house and, entering the cellar, found a still in operation. They discovered the defendants in the commission of an act of a criminal character, a felony, and, having declared their purpose to search *Page 667 the premises, proceeded to do so. . . . The fact is admitted that raisins were cooking on a stove in that cellar, that a still was in fact in operation, that raisin whisky and mash were found, and that the articles used in making the whisky and in the process of distillation were seized.
"The rule, state and federal, is that officers may arrest those who break the peace or commit crimes in their presence. . . . If an officer may arrest when he actually sees the commission of a misdemeanor or a felony, why may he not do the same, if the sense of smell informs him that a crime is being committed? Sight is but one of the senses, and an officer may be so trained that the sense of smell is as unerring as the sense of sight. These officers have said that there is that in the odor of boiling raisins which through their experience told them that a crime in violation of the revenue law was in progress. That they were so skilled that they could thus detect through the sense of smell is not controverted. I see no reason why the power to arrest may not exist, if the act of commission appeals to the sense of smell as well as to that of sight.
"The conclusion reached is that the officers properly arrested the defendants, and properly seized the utensils that were employed in the commission of the crime."
The record in the Dumas case included the following testimony, which supported the conviction of the defendant therein, which conviction was reversed by this court:
"Arthur Clark . . . direct examination . . . by Mr. Noble J. Johnson."
. . .
"Q. What is your business or profession? A. Deputy Sheriff. . . .
"Q. Was anyone with you? A. . . . Will Hays, the Federal Prohibition Enforcement Agent . . . Sheriff Armstrong, Federal officers Crowe and Horner. . . . A. . . . I seen tracks leading to *Page 668 the South . . . we took a walk down this road of wagon tracks.
"Q. When you walked down that way a distance, did you come to a road or lane? A. Yes, sir, it's a lane.
"Q. Now when you got there did you smell any odor? A. Yes, sir.
"Q. What was that odor? A. It was mash, I guess — or cooking — I don't know which it was. It's an odor you smell around places where they are making mule. . . .
"Q. Just what did you do? A. We walked up toward the house.
"Q. What direction did you walk with reference to the odor? A. We just followed right down south.
"Q. Would that be the direction the odor was coming from? A. Yes.
"Q. Now as you approached the house you speak of, was that the defendant's house — Dumas', where he was? A. He was standing there, yes, sir.
"Q. Tell the court whether or not this odor became stronger as you came nearer to Dumas' home? A. Yes, after you got close to the house it got rather strong.
"Q. Now when you got to the house who, if anyone, did you see there? A. Mr. Dumas was standing in the door.
"Q. That is this defendant? A. Yes, sir.
"Q. Was the door open or closed. A. It was open.
"Q. Was there anything said to Mr. Dumas, or by Mr. Dumas, at that time? A. He said something about wanting to know if we had a warrant, I believe. I told him I was deputy sheriff; and you could look right through the door and see the still in there.
"Q. You could look and see it from where you were standing? A. Yes, sir.
"Q. And did you enter the place? A. I did.
"Q. And tell the court what, if anything, you found? A. I stepped inside and the first thing I *Page 669 did, — a shotgun was standing in the corner; I broke it and threw the shells out.
"Q. Was this shotgun loaded? A. Yes, sir.
"Q. What did you find in the way of a still, or anything connected with it? A. Why, they had a still in there — a good-sized still and several barrels of mash and everything that goes with an outfit of that kind — an oil stove. — Defendant moves to strike out `And everything that goes with an outfit of that kind,' motion sustained.
"Q. Just tell what it was. A. A still, mash and stove.
"Q. Do you recall about the mash? A. I can't recall just the number of barrels.
"Q. Was it in barrels? A. Yes, sir.
"Q. And did you find any white mule whisky? Can you tell the court about it? A. I couldn't tell you the number of gallons.
"Q. This still — was it in operation? A. It was.
"Q. Tell the court, if you can, whether or not mule whisky was coming out of it? A. It was.
"Q. And I believe you say there was a burner there — oil burner? A. Several of them.
"Q. How many, if you recall? A. There were eighteen or twenty — something like that.
"Q. Were they burning? A. Yes, sir.
Cross examination . . . by Judge J.T. Walker.
. .
"Q. You didn't on this occasion have any search warrant on which appeared the name of the defendant Dumas? A. Not as I know of.
"Q. And you didn't have any search warrant which described the premises where he lived, did you? A. I did not.
"Q. You didn't see any or hear any? A. No.
"Q. And how did you enter — east, west, north or south? A. It's the north.
"Q. And which side of the house was the door on that you went to? A. The north side.
"Q. And how far were you from the house — how far north of the house were you when you first *Page 670 smelled liquor, or these odors? A. It must have been 100 yards — between 100 and 200; it may have been further than that. I couldn't say exactly.
. . .
Re-direct examination. . . .
"Q. Now, Mr. Clark, when you got to the door of this house you could look right in and see the still, is that correct? A. It is."
The comment contained in the respondent's report which is made the basis of this proceeding merely stated briefly (perhaps too briefly) what the decisions of the courts had been in these two cases. No criticism was made of the decision in the Dumas case, although from what I have just quoted from the record in that case and from United States v. Borkowski, supra, and in view of the authorities I will presently cite, it can readily be seen that the decision in the Dumas case is subject to severe criticism by those who believe that the generally-accepted rule of law theretofore prevailing should have been followed.
It appeared from the evidence in the Dumas case that the sense of smell led the officers to the defendant's door under the positive conviction that a felony was being committed, and that when they arrived at the door both the sense of smell and the sense of sight revealed to them the violation of the law. If the officers actually saw the law being violated, or from their senses of smelling or seeing, or of the two senses combined, knew that a felony was being committed in their presence, no search warrant was necessary for them to enter and make the arrest, and seize the still and the liquor. Under such circumstances they not only had the right under the law but it was their duty under the law to arrest Dumas and confiscate his still. A peace officer who is authorized by the statute to "arrest and detain any person found violating any law of this state until a legal warrant can *Page 671 be obtained," § 2176 Burns 1926, may arrest without a warrant when he has reasonable and probable cause for believing a felony is being or has been committed by the person arrested. Doering v. State (1874), 49 Ind. 56, 19 Am. Rep. 669; Harness v.State (1902), 159 Ind. 286, 64 N.E. 875; Thomas v. State (1925), 196 Ind. 234, 146 N.E. 850; Murphy v. State (1926),197 Ind. 360, 151 N.E. 97. And a seizure is authorized, regardless of whether the officer is acting under a warrant where a violation of the liquor law occurs in his presence. 33 C.J. 680; State v. Mullen (1922), 63 Mont. 50, 207 P. 634; SaltLake City v. Might (1922), 60 Utah 108, 205 P. 900; State v. Watson (1923), 133 Miss. 800, 98 So. 241; Kennedy v.State (1925), 139 Miss. 579, 104 So. 449; State v. Pauley (1922), 49 N.D. 488, 192 N.W. 91.
This court has repeatedly held that intoxicating liquor may be identified as such by the smell of the same. Dillon v. State (1919), 188 Ind. 603, 125 N.E. 37; Zoller v. State (1920),189 Ind. 114, 126 N.E. 1; Shelton v. State (1921),191 Ind. 228, 132 N.E. 594; Stankiewoecz v. State (1924),194 Ind. 246, 142 N.E. 615; Dilly v. State (1927), 199 Ind. 158,154 N.E. 865. And, by similar reasoning, the odor of cooking mash identifies the operation of the well-known still used in the unlawful manufacture of intoxicating liquor, as was held in the Borkowski case.
Judge Myers, speaking for this court, in the Dumas case, page 127, said: "There is some conflict in the testimony of the officers as to whether or not the still could be seen from the open outside door."
This court in a case at law does not weigh conflicting oral testimony, and since there was evidence to support the judgment on the theory of a lawful arrest made after the officers learned by their senses of sight and smell that a felony was being committed in their presence, it would appear to me that the Dumas case was erroneously decided, *Page 672 and mere comment thereon, which did not even directly criticise the decision, should not be held to be contemptuous.
VII. "A few months ago Judge Willoughby wrote an obiteropinion in the Batts case where he practically held that anautomobile cannot be searched without a search warrant. He alsomade the statement in his opinion that the vessels which had beenthrown out of the car in the Batts case smelled as if there mighthave been whisky in them, when as a matter of fact theuncontradicted evidence showed that these vessels containedtwenty-three gallons of white mule."
This quotation is not contained in the superintendent's report but was printed almost three years ago in the Indiana edition, the American Issue (October 18, 1924). The case referred to isBatts v. State (1924), 194 Ind. 609, 144 N.E. 23. The first sentence of the quotation is not a complete statement of the law, because an automobile may also be searched under other circumstances, for example when its operator has been previously placed under lawful arrest, but this omission in the statement does not seem to me to constitute contempt. The criticism of the court is contained in the second sentence. That portion of the court's opinion in the Batts case which is referred to in the second sentence of the above quotation is as follows:
"There was some evidence that Mr. Batts, after his car wasshot up, threw something out. Some witnesses for the statetestified that they went to the place and found some wooden kegsand jugs that smelled like they had whisky in them."
An inspection of the record in the Batts case, or of the briefs of counsel, which contain practically a complete resume of the evidence, is necessary to determine the truth or falsity of respondent's statement that "as a matter of fact theuncontradicted evidence showed that these *Page 673 vessels contained twenty-three gallons of white mule." The verbatim testimony of all the witnesses who testified regarding the contents of the vessels is as follows:
Ralph Donahue, deputy sheriff, testified: "I saw Mr. Batts with a keg in his hands throw it into the bushes; they (Mr. and Mrs. Batts) were both out (of the automobile) at the time."
"Q. Did you at any time examine the contents of the keg that you say you saw Batts throwing from the car? A. Yes, that was examined.
"Q. What did it contain? A. It contained what is commonly called white mule whisky.
"Q. Were there any other containers or vessels of any kind there at that particular spot? A. Yes.
"Q. What were they? A. Some two or three stone jugs and as I recall there was five wooden kegs.
"Q. How many gallons of what you say was white mule whisky was there? A. As I remember there was 23 gallon."
Carl Prigg, farmer, testified: "They had pulled out at the side of the road and were throwing something out in the bushes, in the ditch."
"Q. You mean the defendants George Batts and Stella Batts? A. Yes, sir.
"Q. Were both throwing something out? A. Yes, sir.
"Q. How many trips did they make from the car to the ditch? A. It looked to me like several.
. . .
"Q. Did you find out what the things were that were thrown out of the car by Batts and Batts after you reached the place? A. Yes.
"Q. What were the things you seen thrown out? A. Some four or five wooden kegs and two stone jugs.
"Q. Did you open or assist in opening, or see them after they had been opened, at that time?
A. I saw one jug empty on the road. *Page 674
"Q. What did it contain? A. Well, it smelled like white mule whisky."
Leslie Sears, Sheriff of Putnam County: "I just told them they were under arrest and told them to get in the car; we loaded up my car and went up to where these kegs had been thrown.
"Q. You say you went back and got these kegs? Was that the spot you seen the defendants stopped the first time? A. Yes, sir.
"Q. When you got back there what did you find? A. Found six wooden kegs and two gallon stone jars.
"Q. Did you examine those kegs and jugs at the time? A. Yes, sir.
"Q. What did they contain? A. White mule whisky.
. . .
"Q. I will ask you if you ever seen this keg before? A. That is a keg we picked up there on the Ocean to Ocean highway from the Batts' car.
"Q. What does this keg contain, if you know the contents of it? A. White mule whisky is all I can tell you.
"Q. Have you tested the contents of that keg? A. I seen it tested.
"Q. What was it tested by? A. Government hydrometer.
. . .
"Q. What is the test by government hydrometer of the contents of this keg? A. Forty-nine per cent. alcohol."
John Harmon, night policeman, testified: "The next time I saw them (defendants) they were getting in the car at the bend above the bridge.
"Q. What were they doing at that time, if anything? A. They were just getting in the car when I saw them.
"Q. What did you do and Mr. Sears? A. He rode around to where this car was stopped; I got out and Mr. Sears went on. *Page 675
"Q. Did you find anything there? A. Yes, sir.
"Q. What did you find where the car was stopped? A. I found I believe it was six small kegs and two jugs.
"Q. Where were these six small kegs and two jugs? A. Just at the right of the road.
"Q. Did you open them at that time, any of them? A. I opened a jug and a keg.
"Q. What did those jugs and keg contain? A. What is called white whisky.
"Q. Is that white mule whisky? A. Yes, sir."
Mr. and Mrs. Batts contended that they did not throw the jugs out of their machine and disclaimed any knowledge of them, so that the respondents statement that "the uncontradicted evidence showed that these vessels contained twenty-three gallons of white mule" is a much more accurate statement of the record than was contained in the opinion of the court. However, the controversy over the quantity of whisky was not an important factor in the Batts case because the court's decision was that any evidence was inadmissible for the reason that it was procured by a search and seizure without a search warrant.
It seems to me, although the evidence on which Mrs. Batts' conviction was based may not have been obtained by proper means, that the question of a search and seizure without a warrant was not properly involved. The officers saw the whisky being unloaded from the Batts' automobile at the side of the road and on that testimony and not on the result of any search of the Batts' persons or automobile, was the judgment of both the trial courts based, assessing a fine and imprisonment against Mrs. Batts for transporting liquor.
Not guilty of contempt because criticism was of decided ordisposed of cases.
The criticism or comment of respondents, which is objected to, concerned the decision of cases which had *Page 676 been disposed of several years before the criticism waspublished.
The rule, which has always heretofore prevailed in Indiana, is that actionable contempt does not occur where the publication or criticism relates wholly to cases previously decided and no longer pending in any form before the court. "Comments, however stringent, which have relation to proceedings which are past and ended, are not in contempt of the authority of the court to which reference is made." Cheadle v. State (1886), 110 Ind. 301, 310, 11 N.E. 426, 431. In Zuver v. State (1918), 188 Ind. 60, 121 N.E. 828, it was said:
"Appellant asserts under oath that the proceeding referred to in the published article was not pending before the court at the time said publication was made, but that it had been fully and finally decided and determined before that time. If this statement is true, the publication of the article would not constitute a contempt of court even though it may have been inaccurate or false and may have been prompted by improper or malicious motives."
The case of Patterson v. Colorado (1907), 205 U.S. 454, 27 Sup. Ct. 556, 51 L. Ed. 879, 10 Ann. Cas. 689, quoted from at length in the prevailing opinion, unqualifiedly states that "when a case is finished, courts are subject to the same criticism as other people." "It is generally held that after the final disposition of the case the press and the public have the right to freely discuss, criticize, and censure the decisions of the courts," 13 C.J. 37, citing cases in the United States Supreme Court and in Colorado, Illinois, Indiana, Iowa, Louisiana, Minnesota, Montana, Nebraska, New York, Ohio, Oregon, South Dakota, Texas, Washington, Wisconsin, England and Canada.
Under the English common law, criticism of a judicial officer even though made after the termination of the *Page 677 cause was contempt. This rule in cases where the court was "scandalized" has been applied, although not in recent years, in Arkansas, Georgia, Michigan, Missouri, Vermont and Virginia. Cases in this small and obsolete group, viz., State, ex inf., v. Shepherd (1903), 177 Mo. 205, 76 S.W. 79, 99 Am. St. 624;In re Fite (1912), 11 Ga. App. 665, 76 S.E. 397, are cited and followed by the court in the present case. Even in the courts of England committals for such contempts became obsolete almost thirty years ago, except in small colonies consisting principally of colored populations. McLeod v. St. Aubyn (1899), L.R. (A.C.) 549.
The majority opinion in changing the long-settled rule of our court and adopting this old discarded rule does so upon the authority of these few cases, in each of which the published article was defamatory, impugned the motives of the court, and charged it with corruption — cases which I do not believe are parallel to the one at bar.
Among these cases holding that a publication which "scandalized" the court need not relate to a pending cause, to which this court (disregarding the Indiana cases I have cited) has turned for authority is the case of State v. Shepherd (1903), 177 Mo. 205, 76 S.W. 79, 99 Am. St. 624. (As already stated I do not think the publication here can be held to have "scandalized" the court.) The Shepherd case is doubtful authority and its decision was the reason for the writing twenty-three years ago of the text book "The Law of Constructive Contempt," by John L. Thomas, an ex-judge of the Missouri Supreme Court, wherein he clearly pointed out the errors of that famous case. After reviewing the more recent cases, a modern text (6 R.C.L. 513) says of the judges holding to the position announced inShepherd v. State, supra, that they "must impliedly if not expressly regard themselves as entitled by reason of their high offices to a privilege that does not attach to *Page 678 citizens generally — a most dangerous supposition; and they confuse their private rights (all of which remain to them) with the greater aims of society in allowing and upholding the right to punish for contempt. Besides, when a judge uses his office and the extraordinary power it gives him to vindicate a wrong, there is danger of running into greater excesses and abuses of power than those which he may desire thus to punish. Therefore, while it may be true, as one of the courts said, that `where vituperation begins, the liberty of the press ends,' it may also be true that where the liberty of the press and freedom of public comment ends, there tyranny begins."
In State, ex rel., v. Circuit Court, supra, the court in discussing the cases that hold that adverse newspaper comments upon acts of a court in actions already past and ended may be held contemptuous said:
"The reasoning upon which such decisions rest is that such publications tend to diminish the respect due to the court in the trial of future causes, and thus impair its usefulness. This doctrine is certainly extreme. Carried to its ultimate conclusion, it would call for the punishment of any adverse criticism on the official conduct of a sitting judge, and absolutely prevent all public or private discussion of court proceedings. All such discussions, if unfavorable to the ability or honesty of a judge, must tend in some small degree, at least, to undermine public confidence in the court in the future. On the other hand, many well-considered cases may be found in which it is distinctly held that such publications do not constitute contempt, and cannot be punished as such. . . . Some of the cases, . . . distinctly hold that under our form of government such publications do not constitute contempt, and that to punish them as such would be a serious invasion of the great constitutional guaranties of freedom of speech and of the press. . . . Important as it is that courts should perform their grave public *Page 679 duties unimpeded and unprejudiced by illegitimate influences, there are other rights guaranteed to all citizens by our Constitution and form of government, either expressly or impliedly, which are fully as important, and which must be guarded with an equally jealous care. These rights are the right of free speech and of free publication of the citizen's sentiments on all subjects."
The majority opinion also seems to make the point, although it does not do so clearly, that because there were, at the time of the publication of respondent's criticism, other cases pending in this court in which were involved legal questions similar to the questions decided in the criticised cases, the court could therefore proceed as though the criticism was of pending cases. No case has been cited in support of such a theory, and on principle I do not believe it to be sound.
In respondent's verified answer he denied that he had any knowledge that any cases were pending in which the legal questions under consideration in his report were involved, andthat he believed since the court was committed to the viewannounced in the decision under discussion, the question was nolonger an open one in any of the courts of Indiana. This seems to be a reasonable answer in view of the fact that the cases had been decided several years prior thereto.
If the fact that there are liquor cases involving the legality of searches pending before the court is reason for the suppression of adverse comment on decisions rendered, the result of the court's decision herein may be to prevent all criticism in the future — for as long as prohibition laws exist, I predict there will be prosecutions under them involving similar legal questions.
The charge here is one of indirect criminal contempt.
"No one ought to be found guilty upon a doubtful charge of indirect contempt, and especially so in *Page 680 a case in any manner involving the freedom of the press." Cheadle v. State, supra.
"It is clearly not sufficient for the prosecuting attorney or other informant merely to characterize the published article as in contempt of court. . . . The informant is required to exhibit a class of facts that will, of themselves, from an ordinary meaning, establish the contempt." Rucker v. State (1908), 170 Ind. 635, 85 N.E. 356.
I do not believe that such a class of facts has been exhibited here. Many conclusions were alleged, but they have all been denied. While certain statements in respondent's report of the decisions in question are, as I have pointed out, inaccurate, when viewed by one trained in the law, yet considering the review of these cases hereinbefore made I am convinced that the majority of the court are in error in stating that:
"The author of the report . . . by apparent studied efforts to delude readers of the report into a false impression of the court's attitude in such cases, garbled, falsified and misrepresented the facts thereof and the law therein declared."
I do not believe that the language used is libelous, contemptuous, false, and malicious per se, or that it imputes lack of integrity to the court or any of the judges, or was such as would intimidate or tend to intimidate the court. It is only where the article is contemptuous per se that one cannot purge himself by a verified response. But if the respondent was guiltyof contempt I believe he has purged himself by his severalresponses and answers filed under oath with the court.
In an indirect contempt case the sworn denial of any fact charged must be taken as true, and if the denial is false the remedy is by a prosecution for perjury.
"When a defendant undertakes to purge himself by a verified answer filed in a proceeding for indirect contempt of a criminal nature, the facts stated *Page 681 therein must, in such proceeding, be treated as verity. If the facts so stated under oath are sufficient to show that no contempt was committed, the defendant must be discharged." Zuver v. State (1918), 188 Ind. 60, 121 N.E. 828.
"If the defendant appear and make a sworn statement that the matters in the affidavit are not true and allege a state of facts consistent with his innocence, and avows that there was no intention to interfere . . . with the processes of the court, he should be discharged." Burke v. State (1874), 47 Ind. 528. (Syllabus.)
The separate response and answer of each of the respondents to the amended information cover nine typewritten pages and the second and additional paragraph of response and answer of the respondent Edward S. Shumaker covers fourteen typewritten pages. If written words are capable of purging a respondent of contempt, these respondents have purged themselves, for they have completely and categorically covered every allegation of the Attorney-General's information, have shown that such of said allegations as are true do not constitute contempt of court and have denied, explained, or confessed and avoided every charge that has been made against them. Lack of time prevents the preparation of a complete condensed resume of these responses and answers.
This is a most unusual proceeding. The information filed by the Attorney-General does not appear to have been filed either with the consent or knowledge of the court, as would ordinarily be the case where the court sought to protect its dignity or honor by a contempt proceeding. Neither does the information appear to have been filed at the request or instance of any person accused in any of the cases of violating the liquor laws pending in this court. The Attorney-General, however, inferentially champions the cause of such appellants and contends that respondents by criticism of decided cases *Page 682 have attempted to prejudice the court against their pending causes, but he has not confessed error in any of such cases and he has proceeded to brief them all and insist upon convictions for all such appellants. So long as he maintains they are guilty and should be convicted he should not be heard in their behalf to object to criticism of decided cases.
No two cases are ever exactly alike and rarely have exactly the same questions involved. The fact that pending cases may have questions of law involved similar to those decided cases which have been the subject of comment should not serve to change established legal principles, and thus render criticism of a disposed-of case contempt in a pending case.
"There is a growing reluctance in the courts to resort to an exercise of the power to punish for contempt except where absolutely necessary to the fair and orderly administration of justice, and an inclination, evidenced in some jurisdictions by their statutes, to do away with the old severities, which arose out of an exaggerated regard for the dignity of form rather than for the essence of justice." 6 R.C.L. 488.
Supreme Courts are neither honored nor helped by being held up as above criticism. Constructive criticism of judicial decisions, whether it be professional or lay, is to be desired rather than to be stifled. The time when men, whether kings or judges, could be considered incapable of doing wrong is buried in the historic past. I do not believe it can be said in the present case that punishment is absolutely necessary to the fair and orderly administration of justice, but on the contrary, I believe that such administration requires the respondents' discharge.
It is unfortunate that in a proceeding of this kind the judges whose decisions are criticised sit in judgment of the person who has made the criticism. The practice *Page 683 in this respect is different in many countries. In some states, and even in England where the practice originated, there has been much criticism of it. Lord Erskine, at the close of his great career, gave it as his opinion that there ought to be a jury trial when a person is charged with libeling a court or judge, and Lord Campbell, one of the Chief Justices of England in a note to the case of Rex v. Almonds, Wilm. Op. 243, third volume of his "Lives of the Lord Chief Justices" 190, says:
"In consequence of the resignation of Sir Fletcher Norton, who as attorney-general had made the motion, it (the Almond case for contempt) was dropped, after cause shown, while the court was considering its judgment; and although there can be no doubt as to the power to proceed by attachment in such a case — if a prosecution for a libel on judges be necessary, the preferable course is to proceed by information or indictment, so as to avoid placing them in the invidious situation of deciding where they may be supposed to be parties."
In Storey v. People, supra, the court, quoting fromStuart v. People (1842), 4 Ill. 395, 406, said:
"If a judge be libeled by the public press, he and his assailant should be placed on equal grounds and their common arbiter should be a jury of the country."
The case last cited contains some interesting comments on constructive contempts and, with reference to the old common-law rule of the British courts, says:
"Such portions only of the common law as are applicable to our institutions, and suited to the genius of our people, can be regarded as in force. It has been modified by the prevalence of free principles, and the general improvements of society, and whilst we admire it as a system, having no blind devotion for its errors and defects, we cannot but hope, that in the progress of time, it will receive many *Page 684 more improvements, and be relieved from most of its blemishes. Constitutional provisions are much safer guaranties for civil liberty and personal rights, than those of the common law, however much they may be said to protect them."
It may have been a reluctance on the part of the judges of this court to determine alone whether these respondents were guilty of contempt in criticizing their own opinions that prompted them to appoint the amici curiae referred to in this opinion. Theamici curiae were not agreed upon the disposition to be made of the case, a minority report by the Hon. C.C. Shirley recommending to the court that each of the defendants be discharged.
The court has made reference to excerpts from public addresses of Roscoe Pound, Justice David J. Brewer, and Felix Frankfurter, the latter two being contained in the book, "The State of the Nation," written by that great American statesman and author, my friend for many years, former Senator Albert J. Beveridge, now dead, but never dead for me. While I believe the court is right in its statement that "these men . . . certainly did not intend to be understood as saying that courts have no protection against pernicious and libelous attacks which tend to endanger the rights of parties in pending cases or that will prevent a calm and dispassionate discussion and investigation of such causes, . . . or in short tend to impede or defeat the due administration of justice," I also believe that the present case is not one in which pernicious and libelous attacks have been made which tend to endanger the rights of parties in pending cases, prevent discussion and defeat due administration of justice, but is one in which the kind of criticism was made of the court's decisions that was referred to by Brewer, Frankfurter and Pound. *Page 685
Prefacing the Brewer quotation, Senator Beveridge said:
"Criticism of any mundane thing is all right — perfectly natural, in fact wholesome — and courts are not exempt from that normal functioning of the alert and healthy human intellect. That is the way Abraham Lincoln looked at it.
"One of the ablest and most learned — yes and most `conservative' — justices that ever sat upon our National Supreme Bench, David Josiah Brewer, thus described the true and helpful state of mind toward the Supreme Court itself." (Here follows the portion quoted in the prevailing opinion.)
Following this, Senator Beveridge says:
". . . The gentle reference to bad taste in some critics and criticism was applied to those who were assailing the Supreme Court at the time Justice Brewer delivered his oration. Rather liberal minded, was it not, for a `judicial autocrat?'"
Following the Frankfurter quotation, Mr. Beveridge said:
"So the complaint about the judiciary and criticism of the Constitution which we hear today are not wicked; and merely to pour vituperation upon the critics only feeds the fires of discontent. The sole question for just minds to consider is: What is the best thing to do about it if anything at all should be done about it?"
The portion of the quotation from the remarks of Roscoe Pound which the court referred to but did not quote is as follows:
"While an administrative officer can run up and down the land defending his conduct and can be interviewed in the newspapers with reference to his administrative actions, a judge is supposed, in the language of Mr. Dooley, to comport himself with `gintlemanly resthraint.'" *Page 686
The majority opinion refers to the fact that Justice Brewer was an Associate Justice of the Supreme Court of the United States at the time a case from which it quotes at length, Patterson v.Colorado, supra, was decided, but an examination of the report of that case shows that Justice Brewer filed a dissenting opinion in which he said:
"The plaintiff in error made a distinct claim that he was denied that which he asserted to be a right guaranteed by the Federal Constitution. His claim cannot be regarded as a frivolous one. . . ."
The court there did not consider that the decision which was criticized was a final determination of the case, but as I have already pointed out, stated that where a case is finished it is open to criticism without liability for contempt. In Patterson v. Colorado, supra, the court said, in discussing the articles which constituted the contempt and the answer filed, "That they are far from showing that innocent conduct has been laid hold of as an arbitrary pretense for an arbitrary punishment," thus clearly distinguishing that case from the one at bar where the answer of the respondent, divesting the verbose and speculative information of its inaccurate conclusions, shows his conduct not to have been contemptuous.
Statements in both news and editorial columns, more critical of the decisions and work of this court than the American Issue articles, have recently appeared in the public press, yet this court, upon having the suggestion made to it, did not view with approval the institution of contempt proceedings against the persons who made the statements or the papers which printed the following articles and editorials:
"Refund tax decision of the Indiana Supreme Court was attacked from two quarters Thursday *Page 687 . . . Philip Zoercher pleaded `This decision is the only one in the history of Indiana courts that permits relief before injury has been shown. It is unjust and unfair and based on a mere technicality.' . . . Chairman John J. Brown elaborated on his charge that it was `the veriest sort of a bad guess.' . . . He says: `Regardless as to who is right regarding whether or not proper notice was given, revenues of the State of Indiana which provide the means of government are too sacred to the welfare of the people to permit technical notions of lawyers or judges to interfere with the processes of government. . . . The time is here and now for the employment of at least some degree of good old fashioned common horse sense in handling matters of this character, regardless of the appeals of unscrupulous lawyers who are prompted only by a desire to filch and loot the public treasury for their personal gain, at the expense of the tax payers.'" From the Indianapolis Times, July 22, 1927.
"One more of the ancient bulwarks slipped away apparently when the Supreme Court decided that the members of the Legislature will draw $10 a day instead of six as salaries for the session just closed. . . . Two members of the Supreme Court say that the action was against the constitution and that these members who voted an increase of salaries are no more entitled to the money than they would be had they taken a jimmy and a gun and walked away with it from the treasurer's office.
"`What is the Constitution between friends?' was the cynical comment of a very shrewd politician of this state.
"The Supreme Court gives the answer." Editorial Indianapolis Times, April ____, 1927.
"The decision of the court — its decision was by the narrowest margin — is certainly surprising, to use a respectful adjective. . . . Even great jurists and publicists sometimes take queer shoots in their reasoning. Not often has there been a stranger aberration than that shown in this case. . . . There *Page 688 certainly ought to be a rehearing, if for no other reason than to give the Supreme Court a chance to redeem itself from a very silly blunder." Editorial in Indianapolis News, April 20, 1927.
"The Supreme Court should, we think, be glad of the chance which Mr. Gilliom has given it, to correct its very serious blunder. . . . We trust that the court will give this case a rehearing — if a rehearing shall, as it should be, granted — the serious and careful consideration which its grave importance demands." Editorial, Indianapolis News, April ____, 1927.
"These are perilous days for the Constitution and it is somewhat refreshing to find, occasionally, a voice raised in its defense.
"In no other way could that declaration of Attorney General Arthur L. Gilliom to the Supreme Court in his opposition to the self-raising salary law of the last Legislature be construed.
"It must have taken considerable courage to tell the Supreme Court that: `What appellant (and this means the legislators who raised their own salaries from $6 to $10 a day) obviously sought to do was by that means to remind the court that the seventy-fifth session increased the salaries of the judges of the Supreme Court, who are now to decide this case, from $7,500 to $10,000 per year. No such increases to the Governor, to the Attorney General, or to the judges of the Supreme Court afford any legal or proper reason for sustaining the increase which the members of the Legislature provided unto themselves. The Constitution cannot be thus bartered away.' "`It is not a question of policy or reciprocation here. It is a question of power under the Constitution.'
"The inferences and implications are very plain. They are, in fact, so plain and evident that the judges cannot help but notice them. . . ." Editorial, Indianapolis Times, May 19, 1927.
"Apparently the Supreme Court of this state finds it as difficult as the ordinary citizen to decide just what is law and what is not. *Page 689
"From the day of Blackstone we have been led to believe that law is so exact in its logic and its fundamental principles that no one can be misled.
"The judges of the Supreme Court, coming back from their vacations for a brief session, dealing with three subjects which they believed were somewhat important, have gone back to their havens of rest and given forth no edicts or decisions.
"One of these matters deals with the right of the Legislature to raise the pay of its own members. Attorney General Gilliom, fighting against any such precedent, called attention of the judges to what he believed to have been a sad misconception of the law when they decided that the law makers, who had voted also to increase the salaries of judges, had a perfect right to dip into the treasury. That question is still held up.
"Another of these important questions had been before the court more than eighteen months. It deals with the dignity and power of the court itself.
"In the case Rev. E.E. Shumaker stands charged with contempt of court, the contempt being that he had scattered false statements concerning a decision of the court on liquor matters.
"The Attorney General said that the head of the Anti-Saloon League was making it impossible for the court to fearlessly discharge its duty in liquor cases and cited the fact that appeals were pending in some twenty liquor cases.
"In this matter the judges called six of the most prominent lawyers of the State, first carefully inquiring into their political affiliations and selecting them with an even balance between parties, to tell them whether there was contempt or not.
"It is perhaps beside the question to suggest that the judges introduced a rather strange note into jurisprudence when they announced that they picked their advisers on a political basis. It may have been expected that they would choose them for reputations for legal knowledge and courageous character. But they picked them. And these lawyers gave a *Page 690 report which said that Shumaker was contemptuous.
"It might be suggested that the judges then ought not to have had any trouble in reaching a decision. But for months there has been delay. What does that suggest? Has the law ceased to be exact? Or are the judges proving that Gilliom was right when he said that courts are tyrannized?
"The other question involves D.C. Stephenson, once the most powerful political figure and perhaps the State's greatest dub in horse trades. He wants to get out on the excuse that some clerk failed to put the seal in the right spot in a document or did not put it there at all.
"That may be a very involved legal question. It may require research and study of all the decisions of the past. It may be very necessary to discover whether human liberty is at stake because of such clerical omissions as he cited.
"Meanwhile the people of the State must be left to ponder on what is law.
"Can every Legislature raise its own pay? What will the next one do? Is it safe to criticise the decisions of the Supreme Court or not? Can the acts of a clerk upset decisions of juries? Who knows?" Editorial, Indianapolis Times, July 23, 1927.
If the court is generous enough to overlook such statements or believes that truth will in the end be vindicated regardless of such improper and unjust attacks and yet imposes a sentence on the respondents here for the publication of the comparatively mild criticisms hereinbefore considered, it seems to me that the court is "straining at a gnat and swallowing a camel."
The decision of the court that the respondent Martin, as a trustee of the Anti-Saloon League, is guilty of contempt, is accomplished in the following language:
"He (Shumaker) admits editing the report under the supervision of the Headquarters committee, but that its publication in pamphlet form and reprinted in the American Issue was pursuant to the order of *Page 691 the Board of Trustees. It will be noticed that respondent Martin does not deny that he, as one of the Trustees of the League, participated in ordering the publication of the report, as stated by Shumaker in his response."
It is certainly a novel procedure for the answer of one respondent or defendant to constitute the information or indictment upon which another respondent or defendant is tried. The amended information, filed by the Attorney-General, and supposedly containing the charges upon which respondents are being tried, does not charge the trustees with any contempt at all, but on the contrary alleges:
"That in truth and in fact the said report as published in said paragraph form was not so ordered published by the trustees of the Anti-Saloon League, but that the said trustees at a meeting where the said report was considered by them before its publication voted that the derogatory matters contained therein concerning this court, . . . should be deleted therefrom before the same should be published; that contrary to the said vote by said trustees and without regard thereto the above named defendants caused the same to be printed and distributed without first deleting therefrom the said matters."
In the separate response and answer of each of the respondents it is alleged:
"That said respondents, Ethan A. Miles and Jesse E. Martin did not in any manner collaborate in the preparation of said report and had nothing to do with the preparation or publication thereof, except that said respondent Jesse E. Martin is and was a trustee of the Anti-Saloon League."
It therefore appears to me that the finding against Martin is wholly unwarranted. It may be noted in this connection that the only point upon which all of the amici curiae appointed by the court were agreed was *Page 692 that the respondents Miles and Martin were not guilty of contempt. In the brief of the majority of those "friends of the court," it was said:
"While it would, perhaps, have been better pleading if the respondents, Miles and Martin, had filed separate answers, still, in our opinion, these two respondents, by denying they had anything to do with the preparation or publication of the article, have sufficiently purged themselves of the charge and are entitled to their discharge."
I believe that each of the respondents — Shumaker, Miles and Martin — is entitled to his discharge.