Wednesday, August 30, 2006
"When we permit a poor working woman with a crippled husband to be legally robbed of her savings on the most technical of technical grounds...
In re Nelson, et. al, 103 Mont. 43 @ 65 (1936), 60 P.2d 365. SANDS, Chief Justice (dissenting).
"When we permit a poor working woman with a crippled husband to be legally robbed of her savings on the most technical of technical grounds, then we must expect criticism, indignation, and disrespect of our opinion."
This is an action in contempt. The Progressive Publishing Company, a corporation, and John W. Nelson, who is the president, editor, and general manager of the newspaper published by the corporation called the Western Progressive, are each charged with the contempt of this court by the publication of the article appearing in the Western Progressive published on March 13, 1936, entitled, “Four supreme justices uphold bank fraud.” The article deals with the decision of this court in the case of Doyle v. Union Bank & Trust Company, 59 P.(2d) 1171, in an action wherein the plaintiff sought to recover damages for false representations of the defendant in selling her an Insull debenture bond. The first part of the article briefly purports to state the substance of the case and the opinion of the four justices of the court. It is followed by the dissenting opinion of Chief Justice W. B. SANDS. The alleged contempt refers exclusively to the portion of the article preceding the quoted dissenting opinion of Judge SANDS, and consists of the following: “Bankers who practice fraud upon their old clients and customers cannot be reached for damages when the fraud is discovered. So ruled four justices of Montana supreme court this past week in one of the most sensational decisions subverting the rights of innocent investors ever written into the records of a Montana court. The four judges in effect said that any customer or client of the bank who relies upon the banker's statement in purchasing securities cannot come back upon that banker for damages if subsequently it is discovered that the statements were false and the deal conceived and executed in fraud. Newspapers hold a very important and fiduciary relation to the public, inasmuch as the public presumes and has a right to expect that the decision of the court has been fairly presented. Those who have followed the daily newspaper reports of Montana decisions well know how unfairly and unjustly many of the Supreme Court decisions have been presented to the public, particularly cases that involved big financial interests. The facts stated in the opinion are usually not incorrectly stated, but the facts required to fairly present the poor man's side are suppressed and the *376 substance of the poor man's side of the controversy thereby misjudged by the public.In the majority opinion in the Doyle Case, it is said: “Evidence was produced in support of these allegations [referring to the allegations of fraud practiced by the bank] on behalf of the plaintiff, and on behalf of the defendant denying the truth of the same. It is conceded that the verdict of the jury is conclusive on the question of the fraudulent representations.” In other words, the court said that while it is conceded that the fraudulent representations found by the jury to have been made by the bank to the plaintiff, were made as charged, the bank cannot be reached for damages when the fraud is discovered. If the stock had an illusory market value at the time of sale it might be and in fact was worthless as a permanent investment.In my dissenting opinion I quoted at some length the fraudulent representations made by Schuyler to Mrs. Doyle, and in commenting upon that testimony I said: “In other words, the bank got rid of a worthless bond that it owned. The jury found that Mr. Schuyler misrepresented the bond as set forth above, and Mr. Gun admits that for the purposes of this appeal misrepresentations were made by Schuyler, so that the matter needs no further discussion here.”Again in the dissenting opinion it is said that it is decisions such as the majority members of this court are rendering *377 in this action that makes the layman lose confidence in courts where the wrong done to another is so obvious, for this court to say that “there is no remedy,” brings about a miscarriage of justice. It in effect holds that regardless of the fact that false and fraudulent misrepresentations are made by a bank in the sale of bonds having only an illusory value in fact at the time of the sale on the market even though the stock is valueless as an investment at the time, still the fraud of the plaintiff is held to be remediless. How, then, in view of this language, could this layman come to any different or other conclusion than that four members of this court were upholding the fraud committed by the bank, and that “bankers who practice fraud upon their old clients and customers cannot be reached for damages when the fraud is discovered.”It was brought out at the hearing that it is not an unusual practice for newspapers to comment editorially and in news items upon the decisions of this court before the time for filing the petition for rehearing has expired. Indeed, the witness (Associate Justice) STEWART testified that in the case of Boepple v. Mohalt (Mont.) 54 P.(2d) 857, the Helena Independent published an article commending the majority opinion in that case and condemning in no uncertain terms the writer of the dissenting opinion, the Chief Justice of this court. but if we are going to spend our time threatening everybody that criticizes this court or its members, let us remember that wthat is sauce for the goose is sauce for the gander. Let us show no partiality and make our friends come under the same rule as our enemies.
The late President Teddy Roosevelt widely commended the practice of publishing and criticizing court decisions, but he very emphatically impressed his view that these criticisms should be fair and honest. I am opposed to make fish of one and fowl of the other. I do not believe that because the Western Progressive, an independent newspaper which publishes articles or has adopted a policy with which the members of this court do not agree, struggling to survive the opposition leveled against it by the well-known powerful corporate influences of the state, should be punished and that the Helena Independent, a newspaper adequately financed which commends the members of the court who are writing the majority opinion in this case, and which paper is supporting the said powerful interests that in a large part dictate the policy of the state, should not only go untouched but be defended by the Attorney General and the members of this court. Judges should not be too thin-skinned nor conclude that because of the high positions they occupy they are not to be criticized for their official acts. No court has ever maintained, nor will any court ever maintain, the respect to it by clubbing and browbeating and by penalizing the men who criticize them, but such respect can be established and maintained only by the soundness and fairness of decisions and the principles of justice therein enumerated. If we as judges do our duty conscientiously, do equity and justice, we do not need to fear whether or not there is adverse criticism of our actions. Time and the sober judgment of the people will eventually reach a fair analysis and conclusion by the people. When we permit a poor working woman with a crippled husband to be legally robbed of her savings on the most technical of technical grounds, then we must expect criticism, indignation, and disrespect of our opinion. Chief Justice John Marshall did not become the greatest American jurist by sending those men to jail or punishing them for contempt who did not show him the proper deference, but by his great impartiality, fairness, and courage, his fearless interpretation of the law, and the enunciation of those great principles of justice which have proven to be the foundation for our governmental structure. The strength of courts lies in the fact that the judges thereof are unmindful of public opinion, and therefore if we are so thin-skinned that we cannot “take it,” or that we are influenced by any article which may appear in the newspaper or any “puff of wind,” then we may properly be designated as the “five irascible old men,” and we should resign and permit courageous men not thus easily influenced to administer justice for this tribunal. If we are to find these defendants guilty for publishing an article such as that in question, then by these same tokens every statement made against the court on the street corner is contemptuous. Are we going to cite into court every man or woman or newspaper who criticizes the court in its decisions? Such a rule or course of conduct smacks too much of Hitler and Mussolini to meet with my sense of fairness and justice. I cannot and will not subscribe to it. I have long thought that there should be jury trials in contempt cases not committed in the immediate presence of the court, and the proceedings in this case have fortified me in that conclusion. Here two of the justices of this court saw fit to remove their judicial robes and take the witness stand as witnesses on behalf of the prosecution and tell of personal differences between them and one connected with the Western Progressive some three years prior, and then pass judgment upon the weight of their own testimony. I never liked the idea of a judge being prosecutor, judge, and jury in contempt cases, but in the case before us we have unfortunately an added element which makes the practice worse. Here two members of this court, Judges STEWART and ANDERSON, are not content with being prosecutors, judges, and jury, but in their zeal to find the defendant guilty of contempt of this court have become witnesses to personal transactions three years old with one whose connection with this paper was severed over 18 months ago and who is not a party defendant to this action. In other words, they become prosecutors, witnesses, court, and jury, all in one. It is decisions such as this rendered in the Doyle Case and this proceeding as well that are bringing the courts into disrepute and causing the layman to lose confidence in them; proceedings such as here conducted on the hearing in this cause will do more to hold this court and the members thereof up to public opprobrium, will do more to incite public contempt, will do more to create a feeling in the minds of the people of the state of Montana that the court is partisan, than all of the articles which may be published criticizing the court for decisions it may render in the next decade. In view of the dissenting opinion and the prevailing newspaper headline practices, the article published was on the whole a fair report of the proceedings of this court in the Doyle Case, even though the headline may have followed too closely the statements influenced by the dissenting opinion. The most prejudiced mind cannot say the publication is a false or grossly inaccurate report.
Doyle v. Union Bank & Trust Co.102 Mont. 563, 59 P.2d 1171, 108 A.L.R. 1047. I dissented from the majority opinion handed down several months ago, and I see no reason to retract from my opinion in that case at this late date. The defendant's attorney concedes that the verdict of the jury is final and binding on this court and that the defendant was guilty of deceiving the plaintiff, Mrs. Doyle, into believing that she was buying a secured bond when in fact it is now conceded that the bond was not secured. The majority opinion setting aside the verdict is based upon the sole ground that the value of the bond at the time of purchase was not established by sufficient evidence. There is ample proof that the bond was issued by a holding company with only a gambler's chance on the success of the several operating companies; that this fact was concealed from Mrs. Doyle when she purchased the “safe investment,” and when the fact came to her notice the bond “was worthless.” She furnished the best proof available. She was not required to prove how many of the gambling companies were still able to deceive their stockholders and prospective stock purchasers into believing they were solvent. The sale was made by the bank as one of the members of a bankers' syndicate organized to sell these Insull securities. I liken the case to a bankers' organization to fleece purchasers into buying glass diamonds by taking advantage of the confidence imposed in them. The plaintiff here is denied redress because it is claimed she has not proved the value of the fake diamond at the exact time she purchased. She should have subpoenaed other glass diamond vendors to prove the value of this particular glass diamond at this particular time. I dissent from the opinion of the majority and hold that the proof was amply sufficient to support the verdict of the jury, and, furthermore, that the Constitution prohibits this court from setting aside the verdict of a jury on questions of fact.