CHARLES K. McCLATCHY, Petitioner, v. SUPERIOR COURT OF THE COUNTY OF SACRAMENTO, A. P. CATLIN, Judge, Respondent, 119 Cal. 413

VAN FLEET, J. Certiorari to review an order of the respondent adjudging petitioner guilty of contempt. While the cause of Talmadge v. Talmadge was on trial in the-superior court of Sacramento county, an

article appeared in the Sacramento Bee, a newspaper published in the city of Sacramento, purporting to be an account of certain testimony given by one of the witnesses; and when, at the opening of court nezt day, its attention was called to the

article by one of the attorneys in the cause, the judge stated from the bench that he had no hesitation in saying that the statement referred to was a grossly false statement, a gross fabrication, and that there was not the-slightest ground in the testimony of the witness upon which such a statement could be based.

In the afternoon of that day the Bee published in its editorial columns the following article: “The Bee will not keep in its employ a reporter who garbles or who misstates, but when a newsgatherer does his duty and tells the truth it will not stand silently by while an aggregation of attorneys try to make him out a liar, and while a prejudiced and vindictive czar upon the bench aids and abets them in such a purpose. The Bee reasserts that in all material details the statement of Talmadge, as given in the Bee of yesterday, was the statement that he made upon the stand at Monday afternoon session.

The Bee will go further than that. It will declare jhat both the attorney before the bar and the judge on the bench knew that the statement made in the Bee was an essentially correct epitome of the testimony given by Mr. Talmadge, at the very moment when they unhesitatingly, shamelessly, and brazenly declared it to be a gross fabrication.

There is no paper anywhere that has a higher regard for fair and impartial courts than has the Bee, but there is no paper anywhere that has a supremer contempt than has the Bee for a judge who will approve the unmitigated falsehood of an attorney, as Judge Gatlin to-day approved the brazen misstatement of Judge J. B. Devine.” Similar language was repeated in the columns of the newspaper on the two succeeding days. The petitioner herein is the editor and one of the proprietors of the Bee, and on June 2, 1896, upon an affidavit of Mr. C. T.

Jones setting forth these publications, and that the same was an interference with the proceedings of the court in the trial of the cause, and constituted a contempt of said court, a citation was issued directing him to show cause why he should not be punished for said contempt. In obedience to the citation, the petitioner appeared in court and filed an answer acknowledging that the

article was published by his authority and justifying its publication upon the ground, among others, that it was in fact a correct report of the proceedings at the trial, and that it was published in order to defend himself from the charge made by the judge of the court, and in his answer repeated the charges made in the

article published. Upon the hearing of the charge, the court found the facts in accordance with the affidavit of Mr. Jones, and that the publications were an unlawful interference with the proceedings of the court in the trial of the cause, and adjudged the petitioner guilty of the contempt alleged, and that he pay a fine of five hundred dollars. The petitioner seeks by this proceeding a judgment annulling this order of the superior court. There is but one point which need he considered.

It is contended, and we think correctly, that the order under review is void for the reason, clearly disclosed by the record, that the petitioner was denied his constitutional right to be heard in his defense.

The charge against him was in making certain publications in his newspaper relating to the evidence in the case on trial, alleged in the affidavit upon which he was cited to be “false, scandalous, and defamatory,” and which “were intended to degrade the said court and excite public prejudice and odium against it and were unlawful interferences with the proceedings of said court.” The gravamen of this charge was the alleged false character of the publications and the wrongful intent of petitioner in making them to bring the court into contempt, and thus interfere with the orderly administration of justice in the cause on trial.

That this was the understanding and theory of the prosecution is shown by the course of proceeding in the court below.

To prove the false character of the matter published by petitioner, the prosecution introduced the court reporter, who testified that the matter published, purporting to be a statement of the evidence as given in the action on trial at the time, did not accord with his notes of such evidence; and to show that petitioner acted with malicious intent it was proved by the reporter that before the second publication appeared he had furnished to petitioner what purported to be a correct transcript of his notes of that portion of said evidence to which the publication referred. .

This was substantially the case of the people, the publications being admitted. The substantive defense was that the publications were in fact true, and not made with any wrongful intent; that the personal references therein to the judge were merely in response to the aspersion of the latter cast upon petitioner in characterizing the statements in his newspaper as false and fabricated, when in fact they were not, and that such personal references were not made for the purpose of interfering with the administration of justice.

That this was a complete defense, if sustained by evidence, there can, we think, be no doubt. The publication of the truth as to legal proceedings is not a contempt of court (In re Shortridge, 99 Cal. 526); and the criticism of the action of the judge, if made only in proper response to an unjust charge against petitioner’s veracity, and without intent to improperly influence the proceedings of the court, would not be contemptuous. It is said that the language of the judge was not directed at petitioner, but to the reporter on his paper; but we do not think the language will justly bear this limitation.

A judge on the bench no more than any other can cast aspersions upon the character of a person not a party or participant in a case on trial, without a right in the latter to defend himself. Petitioner might not have been able to establish this defense, but he was not permitted to make the effort. When the case of the people rested this occurred: “Mr. Reddy.—We want to call witnesses to show that the publication in the ‘Bee’ was in point of fact true. “The Judge.—I will not hear testimony further than what has already appeared on that subject, as stated by the reporter.

I will not allow this matter to degenerate into a controversy as to the correctness of the reporter’s notes. “Mr. Reddy.—Then we will not be allowed to introduce any evidence at all-—is that the proposition—if these notes are to be taken as correct? “The. Judge.—I shall act only on the official notes, as given 3 you by the reporter. I will hear no other testimony. “Mr.

Reddy.—We wish to show that the notes are not correct, in so far as they differ from the report in the ‘Bee/ and that the testimony as reported in the ‘Bee’ was actually given on that occasion. “The Judge.—I will not hear any outside testimony other than the notes of the official reporter..... “Mr. Reddy.—Your honor will allow no testimony except the reporter’s notes? “The Judge.—No. “Mr.

Reddy.—Then your honor will not permit us to put in evidence the subject matter—the allegations of the answer? “The Judge.—I have made my ruling that I will hear no testimony in regard to the evidence that was taken there except what is contained in the notes of the official reporter, and they have been fully given, and I will add to that the cross-examination of Mr.

Duden [the reporter] with respect to those questions that the court asked him in regard to the time when he delivered the transcribed notes to the ‘Bee/ ” Thereupon the defendant offered and requested to be allowed to introduce evidence in support of the various subdivisions of' his answer, involving as a whole the same general issues as suggested above, but was denied such right, except to the extent that he was told he would be allowed to show that the publications were “without malice.” This privilege was declined as of no avail unless petitioner was allowed to put in his entire defense.

That the result of this action of the court in thus requiring petitioner, in effect, to submit his defense upon the evidence for the people, was, in substance and effect, to deprive petitioner of the right to be heard in his defense, is, we think, obvious. It is contended by respondent that, even if the action of the court was wrong, it was error merely, which cannot be reviewed on certiorari; that the court having jurisdiction of the person and subject matter, the mere method in which it exercised such' jurisdiction cannot be inquired into in this proceeding, which looks only to the question of jurisdiction.

If the premise were correct, the conclusion would undoubtedly follow. But with the view that the action involved no more than mere error we cannot coincide. It was error, certainly, but it was more than that. It was a transgression of a fundamental right guaranteed to every citizen charged with an offense, ór whose property is sought to be taken, of being heard before he is condemned to suffer injury.

Any departure from those recognized and established requirements of law, however close the apparent adherence to mere form in method of procedure, which has the-effect to deprive one of a constitutional right, is as much an excess of jurisdiction as where there exists an inceptive lack of power. “The substance and not the shadow determines the validity of the exercise of the power.” (Postal Tel. etc. Co. v. Adams, 155 U. S. 689, 698.) „ While the writ of certiorari is not a writ of error, "it is nevertheless,” as suggested in Schwarz v.

Superior Court, 111 Cal. 112, “a means by which the power of the court in the premises-can be inquired into; and for this purpose the review extends not only to the whole of the record of the court below, but even to the evidence itself, when necessary to determine the jurisdictional fact.” If, then, by looking at the evidence we can see that the court exceeded its power, we have a right to examine the evidence for that purpose. The evidence and proceedings in this case disclose clearly to our minds such an excess.

Contempt of court is a specific criminal offense (Ex parte Hollis, 59 Cal. 408; Ex parte Gould, 99 Cal. 360; 37 Am. St. Rep. 57); and a party charged therewith, although the proceeding is more or less

summary in character, has the same inalienable right to be heard in his defense, especially in instances like the present, of mere constructive contempt, as he would against a charge of murder or any other crime. On this subject it is said in Rapalje on Contempts,

section 111: “Contempt of court is of two kinds— that which is committed in open court, and that which is committed out of the view and hearing of the court. For the punishment of the first, by commitment and fine, no proceeding need be taken contradictorily with the offender, but for the punishment of the latter, by the same means, the offender must be allowed to offer evidence and argument in his defense, otherwise any judgment which the court may pronounce will be absolutely void.” In State v. Orleans Civil Judges, 32 La.

Ann. 1256, 1262, considering a case of constructive contempt, it is said: “The charge of contempt should not in any case be followed by sentence and imprisonment unless after a rule to show cause has been granted, and the party defendant therein heard and permitted to offer evidence and argument.” And it is held that anything less than that would constitute a want of “due process of law,” or a proceeding not in accord with the “law of the land,” rendering the judgment void. And the court there quote with approval this justly celebrated definition of the phrase 'law of the land” formulated by Mr.

Webster in the Dartmouth College case: “By law of the land is most clearly intended the general law, which hears before it condemns, which proceeds from inquiry and renders judgment only after trial. The meaning is, that every citizen shall hold life, liberty, property, and immunities under the protection of general rules which govern society.” And in the very recent case of Hovey v. Elliott, 167 U.

S. 409, decided by the supreme court of the United States, where, in a civil action, the court had stricken out the answer of a party because of his contempt of an order requiring him to pay money into court, and rendered judgment against him pro confesso, it was held that the act was beyond the power of the court, for the reason that it deprived the party of the right to be heard in his defense; and that the judgment so entered against him was void, even as against collateral attack. Among other things it is there said: “Can it be doubted that due process of law signifies a right to be heard in one’s defense?

If the legislative department of the government were to enact a statute conferring the right to condemn the citizen without any opportunity whatever of being heard, could it be pretended that such an enactment would not be violative of the constitution? If this be true, as it undoubtedly is, how can it be said that the judicial department, the source and fountain of justice itself, has yet the authority to render lawful that which if done under the express legislative sanction would be violative of the constitution?

If such power obtains, then the judicial department of the government, sitting to uphold and enforce the constitution, is the only one possessing a power to disregard it.

If such authority exists, then, in consequence of their establishment to compel obedience to law and enforce justice, courts possess the right to inflict the very wrongs which they were created to prevent.” And, as showing that it is not sufficient that the court shall go through the mere form of citing a party to appear upon the pretense of giving him a hearing while in fact denying him the right in its substance, it is there said: “Until notice is given, the court has no jurisdiction in any case to proceed to judgment, whatever its authority may be by the law of its organization over the subject matter.

But notice is only for the purpose of affording the party an opportunity of being heard upon the p.laim or the charges made; it is a summons to him to appear and speak, if he has anything to say, why the judgment sought should not be rendered. The denial to a party of the benefit of a notice would be in effect to deny that he is entitled to notice at all, and the sham and deceptive proceeding had better be omitted altogether.

It would be like saying to the party, appear and you shall he heard; and, when he has appeared, saying, your appearance shall not be recognized, and you shall not be heard.” And, quoting from Galpin v. Page, 18 Wall. 350, it is said: “It is a rule as old as the law, and never more to be respected than now, that no one shall be personally bound until he has had his day in court, by which is meant until he has been duly cited to appear and has been afforded an opportunity to be heard.

Judgment without such citation and opportunity wants all the attributes of a judicial determination; it is judicial usurpation and oppression, and can never be upheld where justice is justly administered.” These considerations make it manifest that petitioner at his trial in the court below was denied that “due process of law” requisite to a valid conviction; and for that reason the order convicting him of contempt must be annulled. It is so ordered. Garoutte, J., concurred.