THE PACIFIC REPORTER VOLUME 182 (66 Colo. 327) GUNTER et al., State Board of Immigration, v. NEWELL. (No. 9364.) (Supreme Court of Colorado. June 2, 1919. fund. The demurrer was overruled and a trial was had upon the issues tendered. The writ was made peremptory and defendants ordered to draw a voucher for the sum claimed and they bring the case here to review that judgment. STATES 49- COMPENSATION - DE FACTO From the evidence it appears that Newell DOCTRINE-APPOINTMENT TO OTHER OFFICE. had made both oral and written application Where the State Board of Immigration em- to the Board for appointment as Commisployed petitioner for three months at a fixed sioner of Immigration. At one of its meetsalary, with the title of deputy commissioner, ings, when the resignation of the then Comfor which service he was fully paid, he is not missioner was accepted and one of its own entitled, under the inapplicable rule relating to the payment of de facto officials, to receive members was appointed acting commissioner from the state compensation for service as com- and secretary, Newell, upon motion duly missioner of immigration, less the amount al-passed was employed for a period of ninety ready paid him. days, or three months, at a salary of $200.00 per month, with title of deputy commissioner, Error to District Court, City and County to exercise such commissions and perform of Denver; John I. Mullins, Judge. Mandamus by Olney Newell against Julius C. Gunter and others, constituting the State Board of Immigration of the State of Colorado. Demurrer to the alternative writ was overruled, the writ made peremptory, and the defendants bring error. Judgment reversed, and cause remanded, with instructions. Leslie E. Hubbard, Atty. Gen., and Ralph E. C. Kerwin, of Denver, for plaintiffs in er ror. T. J. O'Donnell and Norton Montgomery, both of Denver, for defendant in error. such duties as the newly appointed acting commissioner should require of him. No steps were taken, either at this or at any subsequent meeting to elect a permanent Commissioner, and the application of Newell for the place was tabled indefinitely. It is claimed by Newell that his appointment to a position in the office of Immigration Commissioner at a fixed salary for a definite period was with the understanding that he later was to be made Commissioner of the Board and to be paid the difference between the agreed sum of $200.00 per month and the fixed salary of the Commissioner, $300.00 per month, for the time he was so BAILEY, J. Defendant in error, Olney employed, that the law provided for no such Newell, plaintiff below, brought action to official as a deputy commissioner, that the compel by mandamus Gunter, Wallace, Sterns board had no legal right to name one of and Markham, constituting the State Board their number as acting commissioner, and of Immigration, defendants below, plaintiffs in substance that these acts were merely a in error here, to draw a voucher to him subterfuge for the purpose of keeping a well for the sum of $1,200.00, claimed as a bal-understood agreement to make Newell Comance due from the State for six months al- missioner, with the further understanding leged services as Commissioner of Immigration, less $600.00, already paid. The defendants interposed a demurrer and answer to the alternative writ. The demurrer was upon the ground that the complaint stated no cause of action in that it did not show that there was any appropriation which could be drawn upon to satisfy the claim, and because in fact there was no such that upon his appointment he should then be For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes 60(1)—PROCEEDINGS TO PUN ISH-BURDEN of Proof. because the appointee was a member of the 2. CONTEMPT a successor was legally chosen. It conclusively appears from the testimony of Newell himself, regardless of whatever promises may have been made as to his future appointment, that he never was in fact so appointed. Nor is there any showing that he ever did the work assigned by law to the Commissioner, or that the Board ever recognized him as anything more than a temporary employé. In fact the only evidence of any contractual relation between the Board and Newell is found in the minute book of the meeting at which he was hired for three months at a fixed salary, with the title of deputy commissioner. This is the only contract of employment or appointment of Newell of which the law can take cognizance. For this service as the record shows he has been fully paid according to the terms of his employment. There is absolutely nothing shown upon which the defendant in error can base a claim to have been anything more than an employé of the board for a fixed time at a stated salary, and the rule relating to the payment of de facto officials has no application whatever to the facts of this case. Newell never was either the de jure or de facto Commissioner of Immigration, and is not entitled to any compensation from the State which he has not already received. The judgment of the trial court is reversed and the cause remanded, with instructions to dismiss the writ. Where it was contended that attorneys who prepared a petition for a change of judge on the ground of bias and prejudice and the parties who verified the same were guilty of contempt, the presumptions are in their favor, and not only must the preponderance of the evidence show a malicious intent on their part, but such intent must be found by the court to have existed before they can be punished for contempt. 3. CONTEMPT 8-WHAT CONSTITUTES-ArPLICATION FOR CHANGE OF JUDGE. Neither attorneys who filed a written petition for a change of judge on the ground of bias and prejudice nor the parties who verified the same are guilty of contempt on the ground the petition, which alleged an unfriendly meddling by the judge in the domestic affairs of one of show bias, stated matters which would tend to the parties, as well as other matters tending to injure the influence of the judge, the statements not being attacked as untrue; the petition being couched in respectful language, etc., and no matter being set out concerning the judge's action in the pending case. Error to Clear Creek County Court; Royal R. Graham, Judge. In the matter of the contempt proceedings against Miles Cottingham and others. Respondents were adjudged guilty of contempt, and they bring error. Judgment reversed, and citation dismissed. George L. Nye and Pershing, Nye, Fry & Tallmadge, all of Denver, for plaintiff's in error. Edward M. Sabin, Edwin H. Park, and Greeley W. Whitford, all of Denver, for defendant in error. TELLER, J. The county court of Clear Creek county adjudged the plaintiffs in erJudgment reversed and cause remanded, ror guilty of contempt, and from that judg with instructions. ment they prosecute this writ of error. Plaintiff in error Foley, as one of the ad GARRIGUES, C. J., and ALLEN, J., con- ministrators of an estate, with his coad cur. (66 Colo. 335) In re COTTINGHAM et al. (No. 9280.) (Supreme Court of Colorado. June 2, 1919.) 1. CONTEMPT 2-WHAT CONSTITUTES. Language which was considered clearly contemptuous at common law is not to be considered So in Colorado unless it concerns a pending cause, tends to impede the due administration of law, or is manifestly wanton and malicious; for in the United States the judges are not considered endowed with the dignity which judges were at common law when they were deemed to represent the sovereign; the distinction being indicated by the fact that federal courts have by statute long been deprived of the power to punish as for a constructive contempt. ministrator and two other parties, brought suit in a justice court in forcible detainer to obtain possession of certain real estate belonging to said estate and the other plaintiffs. The defendants in that action, having been defeated, appealed the cause to the county court. Plaintiffs in error Davis, Whitney, and Crist, attorneys for the plaintiff's, filed in said court a petition for a change of judge on the ground of bias and prejudice on the part of theounty judge of said county. The petition was verified by Foley, and was supported by affidavits by Foley and Cottingham. The making and filing of these documents was adjudged to be contempt, and the parties were fined $100 each therefor. The proceedings were instituted by a cita For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes (182 P.) tion issued on an affidavit which contained a son, in aula regia; and later, when judges copy of said petition and affidavits, and were appointed to sit for him, their persons averred that the parties responsible for the were endowed with a portion of the dignity same had gone beyond what was necessary of the sovereign whose personal representaand had "transgressed the limitations of the tives they were. To speak disrespectfully of rules with respect to such petitions and them was to disregard that "divinity which affidavits," and made charges reflecting up- doth hedge a king." In this country the on the honor of the judge and the purity of sovereign people claim no attributes of divinthe court in the administration of justice, ity, and are under no illusion as to the and by the language used had shown "a fallibility of those who administer the law. wicked, malicious purpose to wantonly scan- Our people demand only that judges shall dalize the good name and character of the not be treated so as to interfere with the judge and to bring him into public disgrace proper discharge of their official duties. Be* and destroy his influence for use-yond that they must rely upon the same law fulness as a judge and court in said county." as other people for protection from dafamaThe affidavit for the citation was made by tory attacks. a member of a committee of three lawyers appointed by the county court to investigate respondents' conduct. [1] From the report of this committee, and from the affidavit, it appears that the authors do not recognize the difference between the law of contempt as it is in England and the modern law on the subject in this country. The foregoing views find ample support in the decisions of this court. In Hughes v. People, 5 Colo. 436, relied upon to support the judgment, the language held to be contemptuous, as the opinion states, directly charged "the judge of the court wherein the cause was pending with colluding with the administrator and the attorney for the estate for the purpose of As indicating this distinction reference gaining an unjust and undue advantage' may be made to the fact that since an early against the plaintiff in error, who was then day federal courts have been by statute de-a party defendant to the proceedings. * prived of the power to punish as for a constructive contempt. According to the overwhelming weight of authority in this country, language which was clearly contemptuous at common law is not to be considered so here unless it concerns a pending cause, tends to impede the due administration of law, or is manifestly wanton and malicious. Storey v. People, 79 Ill. 45, 22 Am. Rep. 158; State v. Anderson, 40 Iowa, 207; Cheadle v. State, 110 Ind. 301, 11 N. E. 426, 59 Am. Rep. 199; In re Robinson, 117 N. C. 533, 23 S. E. 453, 53 Am. St. Rep. 596; State v. Sweetland, 3 S. D. 503, 54 N. W. 415; Percival v. State, 45 Neb. 741, 64 N. W. 221, 50 Am. St. Rep. 568; State v. Circuit Court, 97 Wis. 1, 72 N. W. 193, 38 L. R. A. 554, 65 Am. St. Rep. 90; Works v. Superior Court, 130 Cal. 304, 62 Pac. 507; Ex parte Green, 46 Tex. Cr. R. 576, 81 S. W. 723, 66 L. R. A. 727, 108 Am. St. Rep. 1035; State v. Kaiser, 20 Or. 50, 23 Pac. 964, 8 L. R. A. 584; State v. Tugwell, 19 Wash. 238, 52 Pac. 1056, 43 L. R. A. 717; In re Dalton, 46 Kan. 253, 26 Pac. 673; Ex parte Steinman, 95 Pa. 220, 40 Am. Rep. 637; State Board v. Hart, 104 Minn. 88, 116 N. W. 212, 17 L. R. A. (N. S.) 585, 15 Aun. Cas. 197; Ex parte Hickey, 4 Smedes & M. (Miss.) 751; Mullin v. People, 15 Colo. 437, 24 Pac. 880, 9 L. R. A. 566, 22 Am. St. Rep. 414; In re Smith, 54 Colo. 486, 131 Pac. 277; and Cooper v. People, 13 Colo. 337, 373, 22 Pac. 790, 6 L. R. A. 430. That the reason of the rule at common law does not apply here is recognized in the last case cited. As is well known, justice in England was originally administered by the king in per * It implies judicial corruption and unjust oppression on the part of the judge presiding." This language related to the conduct of the judge in a pending case, and falls within the rule above stated. In the court's discussion of what facts might properly be set out in an application for a change of judge, one view of the question was apparently overlooked. Manifestly the petition is not intended merely to suggest to the judge matters already known to him because of which he ought not to try the case. It must set up the facts on which the party relies to show prejudice, so that a reviewing court will know what petitioner's grounds were, and be able to determine whether or not the court erred in not granting a change. The opinion contains some dicta apparently recognizing the common-law rule as to the sanctity of a judge, which later decisions of this court show not to be a correct statement of the law in this country. In Cooper v. People, supra, Judge Helm, in the opinion denying a rehearing, after pointing out that the opinion dealt only with alleged contempts from language concerning pending causes, said: ishment for contempt, in the interest of the "The right of the press without fear of punpublic good, to challenge the conduct of parties, jurors, and witnesses, and to arraign the judge himself at the bar of public opinion, in connection with causes that have been fully determined, is not denied by the decision filed in this case.' In Hamma v. People, 42 Colo. 401, 94 Pac. 326, 15 L. R. A. (N. S.) 621, 15 Ann. Cas. 655, it is said: "The proposition will hardly be disputed that in this class of contempts the libelous or slanderous publication must relate to judicial action; that it must have reference to a judicial decision, order, or proceeding in a cause pend-purpose to scandalize the judge, etc. ing or completed." In this case the affidavit does not charge that the statements are false, but only that they are made with a wicked and malicious Again it is said (page 410 of 42 Colo., at page 328 of 94 Pac. [15 L. R. A. (N. S.) 621, 15 Ann. Cas. 655]): "It is urged that such a publication as the one under consideration interferes with and In the brief filed in support of the judgment it is repeatedly asserted, as it was in the affidavit for the citation, that the "offensive allegations were unnecessary, and tended to humiliate, ridicule, and disgrace the judge," etc. The respondents in answer alleged "that embarrasses the administration of justice; that the facts set forth in the petition and affiit tends to bring the court and judge into dis- davits were set forth for the sole and only repute; and that it destroys public confidence purpose of showing and setting forth the in both and impairs their usefulness. The cor- prejudice of the judge, in order to comply rectness of these observations may be conceded. with the decisions of the Supreme Court of But malconduct of the judge in discharging a Colorado which require that all the facts private trust, or false and malicious attacks up-and circumstances upon which the allegaon his integrity as an individual, also reflect tions of prejudice are predicated must be upon him as a public official and tend to produce set forth in detail," and, further, that they the same unfortunate results. Yet no intelligent lawyer would sanction proceedings by were not intended to scandalize the good contempt under the latter circumstances. name of the judge, but for the purpose of "This extraordinary remedy is given primarily showing conclusively the bias of the judge. for the purpose of safeguarding the interests This was a denial of the charge in the of parties to judicial causes or proceedings, and affidavit, and our decisions above cited made secondly for the purpose of protecting the court it an issue vital to the case. And yet obitself from coercion or interference while injections to testimony by respondents to show the discharge of its judicial duties. And the fact that, if the publication be false or malicious, the judge will suffer injustice and injury in his official as well as in his private capacity, is not deemed sufficient to justify the invoking of this summary proceeding under circumstances such as are presented in the case at bar; a proceeding in which the injured person himself acts as judge, tries the accused in a manner largely ex parte, and upon conviction imposes a fine or imprisonment, or both, at discretion." their good faith and belief that it was necessary to state the facts as they were stated were sustained, and a judgment of contempt entered, without testimony or findings on that issue. If the allegations were true, made in respectful language, and in an honest belief that they were necessary to obtain the relief sought, they were not contemptuous. In the absence of evidence of their falsity and that they were maliciously made, no contempt was shown. In a more recent case, In re Smith, supra, we held again that it was necessary in [2] The presumptions are in favor of rea petition for a change of judge to set out spondents, and, as the attorneys who apin detail the facts upon which the allega-peared at the hearing as amici curiæ adtion of prejudice was based, and that the intent of the parties in making the statements concerning the judge must be determined in the contempt proceedings. In that case, as in this, the attorney first applied to the judge informally, stating that his clients thought the judge was biased, and that it was hoped that a change of judge might be ordered without the filing of an application for such change, which would necessarily contain the grounds upon which the belief in the judge's bias was based. There, as here, the judge declined to consider an informal application, and practically compelled the filing of an application. In that case the affidavit charged that the statements alleged to be contemptuous "were false, unwarranted, and wickedly and maliciously intended to constitute an attack upon the honor and integrity of the court." No evidence was received, and this court held that without proof of that charge the court had no jurisdiction to pronounce judgment. mitted, the burden was upon them to establish that the statements were contemptuous in law. Not only must there be a preponderance of evidence to show the malicious intent, but such intent must be found, in terms, by the court to have existed. Tracy v. State, 28 Ohio Cir. Ct. Rep. 453; State v. Stillwell, 80 Or. 610, 157 Pac. 970; Krueger v. Krueger, 32 S. D. 470, 143 N. W. 368; and In re Dealton, 105 N. C. 59, 11 S. E. 244. There was no trial of that issue and no finding upon it, and for that reason, if for no other, the judgment must be reversed. In justice to the respondents, however, it should be said that they were not guilty of contempt. [3] They presented to the court, in a respectful manner, facts which they might well suppose would render the court prejudiced against the plaintiffs. These facts concerned, in part, past transactions with the bank of which two of the plaintiffs were the owners, and one of the plaintiffs was the cashier, and, in part, an alleged meddling by (182 P.) the judge in the domestic affairs of Foley, of a nature which indicated that the judge was unfriendly to him. No matter set out concerned the judge's action in the pending case. In a contempt case growing out of an application for a change of judge it was held that an attorney was not in contempt if, in good faith, he proceeded by ordinary legal means to defend his clients' rights; and it was there said: "Obviously an attorney who would refrain from thus proceeding, or who would induce his client to thus refrain, where he was acting in good faith and upon an honest belief that such action was necessary to preserve his client's interests or to maintain his own rights, an attorney who under such circumstances would fail to act, through fear of consequences either in the way of disfavor upon the part of the judge or punishment by fine or imprisonment, would and ought to be branded as a craven and a poltroon, and he would be quite unworthy of his high commission as a member of the bar. would be recreant to the honorable traditions of the bars of England and America, which bodies have always been in the van in every movement and effort to resist the tyrannical exercise of arbitrary power by government or its agents." Hunt v. State, 27 Ohio Cir. Ct. R. 16, affirmed in State v. Hunt, 72 Ohio St. 643, 76 N. E. 1132. It has been said that: He "The preservation of the independence of the bar is vital to the due administration of justice, and its members cannot be imprisoned for contempt for error in judgment when advising in good faith and in the honest belief that their advice is well founded." In re Watts, 190 U. S. 1, 23 Sup. Ct. 718, 47 L. Ed. 933. The respondent attorneys assumed liability for the language of the affidavits as well as of the petition, and they appear to have acted in perfect good faith. It is not true, as counsel contend, that language which tends to humiliate a judge or to lessen his influence in his community is in all cases contemptuous. In a Kansas case, In re Pryor, 18 Kan. 72, 26 Am. Rep. 747, Judge Brewer said: "After a case is disposed of, a court or judge has no power to compel the public, or any individual thereof, attorney or otherwise, to consider his rulings correct, his conduct proper, or even his integrity free from stain." To the same effect are several of the cases above cited; e. g., State v. Circuit Court, 97 Wis. 1, 72 N. W. 193, 38 L. R. A. 554, 65 Am. St. Rep. 90, where it was held that the fact that a judge was slandered did not of itself prove that a contempt had been committed. The citation from Hamma v. People, supra, is conclusive as to the position of this court upon that question. The respondents were not guilty of contempt, and the judgment should be reversed, and the citation dismissed; and it is so ordered. (66 Colo. 438) PEOPLE (Supreme Court of Colorado. June 2, 1919.) The waiver of a right to a change of venue results from doing some act from which an intention to waive the express statutory privilege as to the place of trial could be reasonably presumed or which could be held to constitute a waiver in fact. 2. DIVORCE 200- ALIMONY-JURISDICTION OF COURT. The court has no jurisdiction to award temporary alimony unless it has jurisdiction to render a final decree on the merits of the main controversy. ALLEN, J. This is an original proceeding in prohibition wherein the petitioner, George N. Crabb, seeks to restrain the district court of the city and county of Denver, and one of the judges thereof, from further proceeding in a certain civil action which had been instituted and is now pending in that court. One of the contentions of the respondents, in opposition to the granting of a writ of prohibition, is, in effect, that the petitioner, For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes |