U.S. Supreme Court
TOLEDO NEWSPAPER CO. v. U.S. , 247 U.S. 402 (1918)
247 U.S. 402
TOLEDO NEWSPAPER CO. et al.
v.
UNITED STATES.
No. 371.
Argued March 7 and 8, 1918.
Decided June 10, 1918.
[247 U.S. 402, 403] Mr. Lawrence Maxwell, of Cincinnati, Ohio, for plaintiff in error.
[247 U.S. 402, 407] Mr. William L. Day, of Cleveland, Ohio, and Mr. Assistant Attorney
General Fitts, for the United States.
[247 U.S. 402, 410]
Mr. Chief Justice WHITE delivered the opinion of the Court.
This case is before us on error to review the action of the court below affirming a judgment of
the trial court holding the defendants guilty of a summary contempt and imposing a fine upon
them both. There is also pending an application for certiorari made upon the assumption that
if jurisdiction on error was wanting the case involved questions of such importance as to
justify our interposition.
We are of opinion that a motion to dismiss the writ of error must prevail since it is settled that
a conviction for a criminal, although summary, contempt is for the purposes of our reviewing
power a matter of criminal law not within our jurisdiction on error. Cary Manufacturing Co.
v. Acme Flexible Clasp Co., 187 U.S. 427, 428 , 23 S. Sup. Ct. 211; O'Neal v. United States,
190 U.S. 36, 38 , 23 S. Sup. Ct. 776; Bessette v. W. B. Conkey [247 U.S. 402, 411] Co., 194
U.S. 324, 335 , 24 S. Sup. Ct. 665; Re Merchants' Stock Co., Petitioner, 223 U.S. 639 , 32
Sup. Ct. 339; Gompers v. United States, 233 U.S. 604, 606 , 34 S. Sup. Ct. 693, Ann. Cas.
1915D, 1044. But this does not relieve us from the duty of exerting jurisdiction, as we are of
opinion that the case calls for the exertion of the discretionary power with which we are
vested. The writ of certiorari is therefore granted and we proceed to examine and dispose of
the case to the extent rendered necessary by that conclusion.
The case is this: The Toledo Railways & Light Company in 1913 controlled and operated
practically all the street railways in Toledo. The franchises under which it did so, however, it
was generally considered, expired on the 27th of March, 1914. In anticipation of this fact
negotiations as to the terms upon which they should be renewed were broached between the
city and the company and pronounced differences were manifested. This gave rise to public
agitation and discussion over the question which had become acute in November, 1913. In
that month, evidently in order to enable the city to secure from the company such terms of
agreement as it might impose, an ordinance was passed without giving any new franchise or
in terms making any new contract with the company, providing that on and after the 27th of
March, 1914, the assumed day of the expiration of the franchises, three-cent fares should be
charged from day to day. Complaint alleging the injustice of this provision and the wrong
which the railroad asserted would be produced by giving it effect increased the agitation.
In January, 1914, creditors of the company filed in the District Court of the United States their
bill against the company to enjoin it from obeying the ordinance on the ground that to do so
would confiscate the property which they held in the company and would destroy the
franchises which the company enjoyed and which, it was asserted, only expired in the
following October. On March 24th [247 U.S. 402, 412] the creditors filed a supplemental bill
making the city a party to the suit and asking preliminary and permanent injunctions against
the city. On the same day the company also filed its bill against the city seeking to restrain the
enforcement of the ordinance both by preliminary and final injunctions.
At this juncture and before action had been taken by the court, the Toledo News-Bee, a daily
paper published in Toledo by the Toledo Newspaper Company, began publications adverse to
the rights asserted against the city by the creditors and the railway company and in no
uncertain terms avouched the right of the city to have enacted the ordinance which the suits
assailed and challenged the right of the court to grant the relief prayed. On March 30th the
court after hearing on the applications for preliminary injunctions denied them on the ground
that the assailed ordinance was not self-enforcing, that it required an application for judicial
power to put it into effect and that it would be time enough when the city invoked such relief
by such power to assert by way of defense the matters which were made the basis of the
prayer for affirmative relief in the pending controversies.
In September following under a new prayer the court reconsidered its action and awarded the
preliminary injunction prayed on the ground that as the city had in the meanwhile treated the
ordinance as enforceable without resort to judicial process and was acting against the
company and the creditors and their alleged rights on that assumption, the duty was cast upon
the court of protecting such rights pending the decision of the causes. In the meanwhile,
however, the agitation over the questions which the suits involved had unremittingly
continued and was beyond doubt fanned by continuous publications on the subject in the
stated newspaper into a more exaggerated-not to use a stronger word-and [247 U.S. 402, 413]
vociferous expression which embraced the whole field; that is, not only the relative rights of
the city and the corporation, but also at least by indirection the duty and power of the court
and its right to afford any relief in the matters before it.
Immediately preceding the action of the court taken on September 12th granting the
preliminary injunction and while that subject was before it for consideration, an attachment
for contempt was issued against one Quinlivan for words spoken by him at a meeting of a
labor union concerning the court and the matter which it was then engaged in considering.
And a few days following, on September 15th, a similar process was issued against the
managing editor of the Toledo News-Bee for publications written by him in the paper
concerning the action of the court in the Quinlivan case.
On September 29th following the court directed the district attorney to present an information
for contempt against the newspaper company and its editor for the publications which had
been made concerning the controversy and on October 28th, giving effect to this order, an
information was filed charging the newspaper company and the editor with contempt. The
charges were stated in three counts. The first embraced matters published during the pendency
of the suit from the time, March 24th, when the action was taken to make the city a party and
the respective preliminary injunctions were prayed, up to and including the time when the
ultimate action of the court on the subject in September was taken. The two other counts
related, the one to publications made at the time of and concerning the attachment for
contempt against Quinlivan, and the other to publications concerning the attachment against
the managing editor. The defendants demurred on the ground that the information stated no
act within the power of the court to [247 U.S. 402, 414] punish for contempt and on the
overruling of the demurrer they answered, not disputing the publications charged, but
challenging the innuendoes by which in the information they were interpreted and reiterating
the denial of all power in the court to punish.
Coming to dispose of the information the court found both of the defendants guilty under all t
e counts and imposed upon both a punishment by way of fine. The court sustained its
authority to so act by an elaborate opinion, which after stating the evidentiary facts-the
publications and their environment-drew from them ultimate conclusions of fact and held that
from such conclusions it clearly resulted that the publications complained of constituted a
contempt within the power of the court to punish because by their terms they manifestly
tended to interfere with and obstruct the court in the discharge of its duty in a matter pending
before it. Condensing for the sake of brevity and looking at the substance of things, these
conclusions of the court embraced four grounds: ( a) Because, leaving aside the attempted
ridicule, not to say vituperation, concerning the court which was expressly or impliedly
contained in the publications, their manifest purpose was to create the impression on the mind
of the court that it could not decide in the matter before it in any but the one way without
giving rise to such a state of suspicion as to the integrity or fairness of its purpose and motives
as might engender a shrinking from so doing. (b) Because the publications directly tended to
incite to such a condition of the public mind as would leave no room for doubt that if the
court acting according to its convictions awarded relief, it would be subject to such odium and
hatred as to restrain it from doing so. (c) Because the publications also obviously were
intended to produce the impression that any order which might be rendered by the court in the
discharge of its duty if not in accord with the con- [247 U.S. 402, 415] ceptions which the
publications were sustaining, would be disregarded and cause a shrinking from performing
duty to avoid the turmoil an violence which the publications, it may be only by covert
insinuation, but none the less assuredly invited. And (d) because the publications were of a
character, not merely because of their intemperance but because of their general tendency, to
produce in the popular mind a condition which would give rise to a purpose in practice to
refuse to respect any order which the court might render if it conflicted with the supposed
rights of the city espoused by the publications. 220 Fed. 458.
The affirmance by the court below of the action of the trial court thus stated, is the matter now
before us for review. That court, not asserting the right or attempting to exert the power to
review the merely evidentiary facts found by the trial court, but accepting them, in express
terms sanctioned the inferences of ultimate fact drawn from them by the trial court. The court
said:
'The publications had reference to pending judicial action, and there is a finding of fact
('as alleged in the information') that they tended and were intended to provoke public
resistance to an injunctional order, if one should be made, and there is a finding that
they constituted an attempt to intimidate-at least unduly to influence-the District Judge
with reference to his decision in the matter pending before him. That each of these
findings is supported by competent evidence and for that reason binding upon this
court is too clear for dispute; but we may rightly go further and say that it is difficult
to see how any other findings could have been made.'
This view, however, was restricted to the matters embraced by the first count since it was
decided that it was irrelevant to consider whether the same view would obtain as to the
subject-matters of the second and third counts because it was held that in any event the
finding of guilt under the first [247 U.S. 402, 416] count was adequate to justify the penalty
imposed, thus rendering a consideration of the other two counts unnecessary. 237 Fed. 986,
150 C. C. A. 636.
Under the case and the action of the courts below concerning it, nothing further would seem
to be required to establish the correctness of that action since no other course under the
statement is possible compatibly with the sacred obligation of courts to preserve heir right to
discharge their duties free from unlawful and unworthy influences and in doing so, if needs
be, to clear from the pathway leading to the performance of this great duty all unwarranted
attempts to pervert, obstruct or distort judgment. Nevertheless in view of the gravity of the
subject we proceed to consider and dispose of the elaborate arguments pressed to the contrary.
They are all embraced by the three following propositions: First, that there was a total want of
power in the court to treat the matters charged in the information as a contempt and punish it
accordingly as a result of the provisions of section 268 of the Judicial Code (embodying the
text of the Act of March 2, 1831, c. 99, 4 Stat. 487); second, that irrespective of the
prohibitions of that act there was a want of power to abridge the freedom of the press by
punishing as for a summary contempt comments made by a newspaper upon matters of public
concern; and third, that whatever be the view of the two former propositions as there was an
entire absence of proof sustaining the ultimate inferences of fact upon which the court based
its conclusion, such conclusion was wholly erroneous as a matter of law. We dispose of these
propositions under separate headings.
1. Section 268 of the Judicial Code and its forerunner, the Act of 1831
It is essential to recall the situation existing at the time of the adoption of the Act of 1831 in
order to elucidate its provisions. In Marshall v. Gordon, 243 U.S. 521 , 37 Sup. Ct. 448, L. R.
A. 1917F, 279, the power of Congress to summarily punish for contempt [247 U.S. 402, 417]
came under consideration and it was there pointed out that the enlarged legislative power on
that subject which prevailed in England prior to the separation, whether based upon the
commingling of legislative and judicial authority or upon any other cause, was necessarily in
this country greatly restricted and changed by the effect of the adoption of the Constitution
and the operation of the division of powers and the guaranties and limitations which that
instrument embodied. Considering this condition in the light of the colonial legislation on the
subject and the previous state constitutions, it was pointed out that it had come to be
established, either by express constitutional or legislative provisions or by inevitable
implications resting upon the very existence of government, that while the limitations as to
mode of accusation of crime and methods of trial had fundamentally changed the situation
which had previously existed, such change had not deprived the legislative power of the right,
irrespective of its authority by legislation to provide for the trial and punishment of criminal
acts, in addition to summarily deal by way of contempt proceedings with wrongful acts
obstructing the legislative power in the performance of its duty. This authority, it was held,
was but an incident of the powers conferred and indeed that its exertion in ultimate analysis
was a means of securing the effective operation of the constitutional limitations as to mode of
accusation and methods of trial. It was pointed out that the authority thus recognized
automatically inhered in the government created by the Constitution, was sanctioned by a
long line of judicial decisions and by state and federal practice, although the legislative
power, doubtless as a mere consequence of a reminiscence of what had gone before and
momentarily forgetful of the limitations resulting from the Constitution, had sometimes
exerted authority in excess of that which it was decided was really possessed. [247 U.S. 402,
418] While the Marshall Case concerned the exercise of legislative power to deal with
contempt, the fundamental principles which its solution involved are here applicable to the
extent that they may not be inapposite because of the distinction between legislative and
judicial power. Indeed the identity of the constitutional principles applicable to the two cases
subject to the differences referred to was pointed out (243 U. S. on pages 542 and 543, 37
Sup. Ct. on page 454, L. R. A. 1917F, 279), where it was said:
'So also when the difference between the judicial and legislative powers are
considered and the divergent elements which in the nature of things enter into the
determination of what is self-preservation in the two cases, the same result is
established by the statutory provisions dealing with the judicial authority to summarily
punish for contempt, that is, without resorting to the modes of trial required by
constitutional limitations or otherwise for substantive offenses under the criminal law.
Act of March 2, 1831, 4 Stat. 487.'
The pertinent provision of section 268 of the Judicial Code is as follows:
'The said courts [United States courts] shall have power ... to punish, by fine or
imprisonment, at the discretion of the court, contempts of their authority: Provided,
that such power to punish for contempts shall not be construed to extend to any cases
except the misbehavior of any person in their presence, or so near thereto as to
obstruct the administration of justice. ...'
Clarified by the matters expounded and the ruling made in the Marshall Case, there can be no
doubt that the provision conferred no power not already granted and imposed no limitations
not already existing. In other words, it served but to plainly mark the boundaries of the
existing authority resulting from and controlled by the grants which the Constitution made
and the limitations which it imposed. And this is not at all modified [247 U.S. 402, 419] by
conceding that the provision was intended to prevent the danger by reminiscence of what had
gone before of attempts to exercise a power not possessed which, as pointed out in the
Marshall Case, had been sometimes done in the exercise of legislative power. The provision
therefore, conformably to the whole history of the country, not minimizing the constitutional
limitations nor restricting or qualifying the powers granted, by necessary implication
recognized and sanctioned the existence of the right of self-preservation, that is, the power to
restrain acts tending to obstruct and prevent the untrammeled and unprejudiced exercise of the
judicial power given by summarily treating such acts as a contempt and punishing
accordingly. The test therefore is the character of the act done and its direct tendency to
prevent and obstruct the discharge of judicial duty-a conclusion which necessarily sustains the
view of the statute taken by the courts below and brings us to the second question, which is:
2. The asserted inapplicability of the statute under the assumption that the publications
complained of related to a matter of public concern and were safeguarded from being made
the basis of contempt proceedings by the assuredly secured freedom of the press.
We might well pass the proposition by because to state it is to answer it, since it involves in
its very statement the contention that the freedom of the press is the freedom to do wrong with
impunity and implies the right to frustrate and defeat the discharge of those governmental
duties upon the performance of which the freedom of all, including that of the press, depends.
The safeguarding and fructification of free and constitutional institutions is the very basis and
mainstay upon which the freedom of the press rests and that freedom therefore does not and
cannot be held to include the right virtually to destroy such institutions. It suffices to say that
however com- [247 U.S. 402, 420] plete is the right of the press to state public things and
discuss them, that right as every other right enjoyed in human society is subject to the
restraints which separate right from wrongdoing.
The contention so earnestly pressed that the express provision found in a statute enacted in
Pennsylvania in 1809 following the impeachment proceedings against Judge Peck dealing
with the extent of the power to base a contempt proceeding upon a newspaper publication
should be by implication read into the Act of 1831 and by filtration implied in section 268,
Judicial Code, we think is answered by its mere statement since if it be conceded for
argument's sake only that the provision in the Pennsylvania statute relied upon had the
significance now attributed to it and that the Pennsylvania statute was the model of the Act of
1831, the omission from that act of the provision referred to as it existed in the Pennsylvania
law is the strongest possible evidence of the purpose not to enact such provision. And thus we
come to the third and final subject, which is:
3. The contention that there was no evidence whatever to justify attributing to the publications
the consequence of obstruction and therefore no legal basis for the conclusion of guilt and
resulting right to impose penalties.
It is to be observed that our power in disposing of this objection is not to test divergent
contentions as to the weight of the evidence but simply to consider the legal question whether
the evidentiary facts found had any reasonable tendency to sustain the general conclusions of
fact based upon them by the courts below. Considering the subject in this aspect again we are
constrained to say that the contention on the face of the record is too plainly devoid of merit
to require any detailed review. Indeed we are of opinion that the court below was right in
saying concerning the ultimate conclusions of fact upon which its action was based that it was
'difficult [247 U.S. 402, 421] to see how any other findings could have been made.' True, it is
urged that although the matters which were made the basis of the findings were published at
the place where the proceedings were pending and under the circumstances which we have
stated in a daily paper having a large circulation, as it was not shown that they had been seen
by the presiding judge or had been circulated in the courtroom, they did not could form no
basis for an inference of guilt. But the situation is controlled by the reasonable tendencies of
the acts done and not by extreme and substantially impossible assumptions on the subject.
Again it is said there is no proof that the mind of the judge was influenced or his purpose to
do his duty obstructed or restrained by the publications and therefore there was no proof
tending to show the wrong complained of. But here again not the influence upon the mind of
the particular judge is the criterion but the reasonable tendency of the acts done to influence
or bring about the baleful result is the test. In other words, having regard to the powers
conferred, to the protection of society, to the honest and fair administration of justice and to
the evil to come from its obstruction, the wrong depends upon the tendency of the acts to
accomplish this result without reference to the consideration of how far they may have been
without influence in a particular case. The wrongdoer may not be heard to try the power of the
judge to resist acts of obstruction and wrongdoing by him committed as a prelude to trial and
punishment for his wrongful acts.
This disposes of the case for although the court below we think mistakenly considered that it
was not under the duty to determine how far the facts sustained the charges under counts 2
and 3 because the conviction might be referred wholly to the first count (Gompers v. Bucks
Stove & Range Co., 221 U.S. 418, 440 , 31 S. Sup. Ct. 492, 34 L. R. A. [N. S.] 874), we are
of opinion after examining the facts as to both of [247 U.S. 402, 422] those counts that they also
sustain the conviction within the principles which we have just previously stated.
AFFIRMED.
Mr. Justice DAY and Mr. Justice CLARKE took no part in the decision of this cause.
Mr. Justice HOLMES, dissenting.
One of the usual controversies between a street railroad and the city that it served had been
going on for years and had culminated in an ordinance establishing three cent fares that was to
go into effect on March 28, 1914. In January of that year the people who were operating the
road began a suit for an injun tion on the ground that the ordinance was confiscatory. The
plaintiffs in error, a newspaper and its editor, had long been on the popular side and had
furnished news and comment to sustain it; and when, on March 2, a motion was made for a
temporary injunction in the suit, they published a cartoon representing the road as a moribund
man in bed with his friends at the bedside and one of them saying 'Guess we'd better call in
Doc Killits.' Thereafter pending the controversy they published news, comment and cartoons
as before. The injunction was issued on September 12. The Judge (Killits) who was referred
to took no steps until September 29, when he directed an information to be filed covering
publications from March 24 through September 17. This was done on October 28. In
December the case was tried summarily without a jury by the judge who thought his authority
contemned, and in the following year he imposed a considerable fine. The question is whether
he acted within his powers under the statutes of the United States.
The statute in force at the time of the alleged contempts confined the power of courts in cases
of this sort to where [247 U.S. 402, 423] there had been 'misbehavior of any person in their
presence or so near thereto as to obstruct the administration of justice.' Section 268, Jud.
Code, Act of March 3, 1911, c. 231, 36 Stat. 1163. Before the trial took place an act was
passed giving a trial by jury upon demand of the accused in all but the above-mentioned
instances. October 15, 1914, c. 323, 22, 24, 38 Stat. 738, 739 (Comp. St. 1916, 1245b,
1245d). In England, I believe, the usual course is to proceed in the regular way by indictment.
I mention this fact and the later statute only for their bearing upon the meaning of the
exception in our law. When it is considered how contrary it is to our practice and ways of
thinking for the same person to be accuser and sole judge in a matter which if he be sensitive,
may involve strong personal feeling, I should expect the power to be limited by the necessities
of the case 'to insure order and decorum in their presence' as it is stated in Ex parte Robinson,
19 Wall. 505. See Prynne, Plea for the Lords, 309, cited in McIlwain, The High Court of
Parliament and its Supremacy, 191. And when the words of the statute are read it seems to me
that the limit is too plain to be construed away. To my mind they point only to the present
protection of the Court from actual interference, and not to postponed retribution for lack of
respect for its dignity-not to moving to vindicate its independence after enduring the
newspaper's attacks for nearly six months as the Court did in this case. Without invoking the
rule of strict construction I think that 'so near as to obstruct' means so near as actually to
obstruct-and not merely near enough to threaten a possible obstruction. 'So near as to' refers to
an accomplished fact, and the word 'misbehavior' strengthens the construction I adopt.
Misbehavior means something more than adverse comment or disrespect.
But suppose that an imminent possibility of obstruction is sufficient. Still I think that only
immediate and necessary action is contemplated, and that no case for sum- [247 U.S. 402, 424]
mary proceedings is made out if after the event publications are called to the attention of the
judge that might have led to an obstruction although they did not. So far as appears that is the
present case. But I will go a step farther. The order for the information recites that from time
to time sundry numbers of the paper have come to the attention of the judge as a daily reader
of it, and I will assume, from that and the opinion, that he read them as they came out, and I
will assume further that he was entitled to rely upon his private knowledge without a
statement in open court. But a judge of the United States is expected to be a man of ordinary
firmness of character, and I find it impossible to believe that such a judge could have found in
anything that was printed even a tendency to prevent his performing his sw rn duty. I am not
considering whether there was a technical contempt at common law but whether what was
done falls within the words of an act intended and admitted to limit the power of the courts.
The chief thing done was to print statements of a widespread public intent to board the cars
and refuse to pay more than three cents even if the judge condemned the ordinance,
statements favoring the course, if you like, and mention of the city officials who intended to
back it up. This popular movement was met on the part of the railroad by directing its
conductors not to accept three cent fares but to carry passengers free who refused to pay
more; so that all danger of violence on that score was avoided, even if it was a danger that in
any way concerned the Court. The newspaper further gave one or two premature but
ultimately correct intimations of what the judge was going to do, made one mistaken
statement of a ruling which it criticized indirectly, uttered a few expressions that implied that
the judge did not have the last word and that no doubt contained innuendoes not flattering to
his personality. Later there was an account [247 U.S. 402, 425] of a local socialist meeting at
which a member, one Quinlivan, spoke in such a way that the judge attached him for
contempt and thereupon, on the same day that the decree was entered in the principal case, the
paper reported as the grounds of the attachment that Quinlivan had pronounced Judge Killits
to have shown from the first that he was favorable to the railroad, had criticized somewhat
ignorantly a ruling said to put the burden of proof on the city, and had said that Killits and his
press were unfair to the people, winding up 'impeach Killits.' I confess that I cannot find in all
this or in the evidence in the case anything that would have affected a mind of reasonable
fortitude, and still less can I find there anything that obstructed the administration of justice in
any sense that I possibly can give to those words.
In the elaborate opinion that was delivered by Judge Killits to justify the judgment it is said:
'In this matter the record shows that the Court endured the News- Bee's attacks upon
suitors before it and upon the Court itself, and carried all the embarrassment inevitable
from these publications, for nearly six months before moving to vindicate its
independence.'
It appears to me that this statement is enough to show that there was no emergency, that there
was nothing that warranted a finding that the administration of justice was obstructed, or a
resort to this summary proceeding, but that on the contrary when the matter was over, the
Judge thought that the 'consistently unfriendly attitude against the Court,' and the fact that the
publications tended 'to arouse distrust and dislike of the Court' were sufficient to justify this
information and a heavy fine. They may have been, but not, I think, in this form of trial. I
would go as far as any man in favor of the sharpest and most summary enforcement of order
in court and obedience to decrees, but when there is no need for immediate action contempts
are like any other breach of law and should be dealt with as the law [247 U.S. 402, 426] deals
with other illegal acts. Action like the present in my opinion is wholly unwarranted by even
color of law.
Mr. Justice BRANDEIS concurs in this opinion.