McFarland, J., concurring:

I concur in the judgment annulling the order under review. The case is a very close one; but I think that the alleged contempt rested ultimately upon the asserted fabrication and publication by petitioner of false testimony, and his persistency in restating this version of the same as true. This being so, he should have been allowed to introduce such evidence as he had to the point that his publication of the testimony was a fair and correct statement of it. The court declined to hear any evidence from him on that subject; and the weight of authority is to the point that this ruling, being a denial of appellant's right to make a defense, goes to the jurisdiction, and is reviewable on certiorari. If petitioner had been allowed to introduce the offered evidence, the case would have presented no difficulties.

Beatty, Ch. J., concurring:

and unfounded, he had the same, and no other, means of redress that the law gives to every citizen who is the victim of a libel. The facts alleged and found in the proceeding against the petitioner do clearly establish a malicious libel, but they do not, in my opinion, constitute a contempt of court, and for that reason I concur in the judgment annulling the order.

Harrison, J., dissenting:

be questioned, and the regularity of the procedure by which he was brought before the court is not challenged. The court, therefore, had jurisdiction to investigate the charge, and, after its jurisdiction had been thus acquired, any error by it in the course of the inquiry, either in admitting or excluding evidence, is not the subject of review in this proceeding, and its finding of the facts upon which it based its judgment that the petitioner was guilty of contempt is also final.

Section 1209, Code Civ. Proc., declares that any unlawful interference with the proceedings of a court is a contempt of the authority of the court; and when facts are presented to the court which could, under any circumstances, have interfered with its proceedings in the trial of a cause, it has jurisdiction to investigate the charge of contempt. No question as to the general power of the court is presented in the present case. Its jurisdiction to investigate a charge of contempt is not denied. Whether it had jurisdiction to investigate the charge against the petitioner does not depend upon any review of evidence, but is to be determined by the sufficiency of the affidavit upon which the citation to him was issued. If the facts set forth in that affidavit are sustained, its power to punish for the contempt therein charged follows as a legal conclusion. That the affidavit of Mr. Jones sets forth facts A cause being on trial in the superior court, sufficient to give to the court jurisdiction to ina newspaper publishes what purports to be a quire into the alleged contempt, and to deterportion of the testimony of one of the parties mine whether the acts charged against the peto the action. The attention of the judge be-titioner had been committed by him, cannot ing called to the publication, he pronounces it grossly false from his seat on the bench. The publisher in the next issue of his paper, and while the cause is still on trial, reasserts the correctness of his report, and in coarsely vituperative terms retorts upon the judge the ac cusation of falsehood. Is this a contempt of court? The answer to this question depends, it seems to me, upon the further question whether or not the judge in denouncing the original report was acting in a judicial capacity. A true report of the proceedings of a court is not a contempt. A false report may or may not be a contempt, according to circumstances. If a false report is published under such circumstances as to constitute a contempt, there is but one way to deal with the matter judicially, and that is by a regular citation or attachment and a hearing. If the court or judge undertakes to act upon the matter in any other way, his action is extrajudicial, and not in his official character. Such, it seems to me, was very clearly the case here. The attention of the judge being drawn to this publication, it was natural, and no doubt commendable, that he, believing it to be gross perversion of the facts, should so characterize it, but in so doing he was not acting as a court or judge. What he said was in no sense a part of any judicial proceeding, and the fact that he was seated on the bench at the time makes the case no different in point of law from what it would have been if his remarks had been delivered on the street or communicated in writing to the same or another newspaper. The report of the newspaper was, therefore, not an attack upon the court or an interference with the proceedings of the court, but was an attack upon the man, for which, if it was malicious

It is claimed, however, by the petitioner, that the court had no jurisdiction to punish him for the contempt charged without giving him an opportunity to be heard in his defense, and that inasmuch as it refused to receive evidence which he offered at the hearing in support of certain matters which he had set up in his answer as a defense to the charge, and refused to consider these matters, it exceeded its jurisdiction in determining that he was guilty of the contempt charged in the affidavit. The right of one charged with contempt to be heard in answer to the charge is fully conceded; but upon this as upon any other charge his right to be heard is limited to matters that are pertinent to the issue before the court. If he is allowed a hearing upon these matters, he cannot say that he is deprived of his rights without due process of law. The provision in 1217, Code Civ. Proc., that the court or judge must "investigate the charge, and must hear any answer which the person arrested may make to the same, and may examine witnesses for or against him," does not require the court to hear an answer whose allegations have no tendency to exonerate the person from the charge, or to permit an examination of witnesses upon matters that are not relevant to

the alleged contempt. The court is to conduct the investigation under the sanction of its judicial authority, but its determination therein will not be set aside upon the ground that it committed error in the course of the investigation. If the court had refused to allow the petitioner to file any answer to the charge, or if, after permitting his answer to be filed, it had ordered it to be stricken from the files, and had refused to receive any evidence on his behalf in defense of his charge, its judgment against him would have been unauthorized. Instead of doing so, however, the court permitted the petitioner to file such answer as he desired, and also heard all the evidence which he chose to offer in support of the matters therein which were material or relevant to his defense.

to point out to it in any competent modeeither by the notes of the stenographer or by the statement of one who had heard it— that such testimony had in fact been given. The court, however, would not have been bound to accept such statement as correct but would still be compelled to decide the cause upon its own view of what was the testimony therein, leaving it to the defeated party to show in any proper mode that it had decided contrary to the evidence. It is manifest, from a mere reading of the article published in the Bee, that it would naturally tend to interfere with the proceedings of the court in the trial of the cause to which it referred, and that the court was authorized to find that it was an unlawful interference with its proceedings. The evident purpose, as well as the natural tendency, of the article in question was to compel the court to accept the facts given in the previous statement in the Bee as the correct version of that portion of the testimony in the case, and was an attempt on the part of the petitioner to coerce the court into deciding the cause upon testimony which in its opinion had not been given; and to the extent that this pubwhether it did in fact effect the purpose or not it was an unlawful interference with the proceedings of the court. If the cause had been on trial before a jury, and the petitioner had approached one of the jurors and made the statements contained in the article, it would not be questioned that he would have been guilty of contempt. It is none the less a contempt that the testimony was to be considered by the court instead of by a jury, nor is the act constituting the contempt diminished by the fact that it was published in a newspaper rather than stated orally. It was published with the evident purpose that it should be read, and it was in fact read by the judge while the cause was still pending before him and undetermined.

In his answer the petitioner had alleged that the original publication of the proceedings was a correct statement of the testimony given before the court, and the refusal of the court to allow evidence in support of this averment is claimed by him to have been a denial of the right to be heard in his defense; but the truth or falsity of this publication was not involved in the charge of contempt before the court.lication might tend to bring about that result, The contempt with which the petitioner was charged did not consist in this publication, but in the subsequent effort on his part to compel the court to accept it as the truth in opposition to its own statement that it was not correct. A false publication of the proceedings of a trial does not of itself constitute a contempt, or render its author liable to punishment. The charge of contempt against the petitioner was the fact that after the court had stated that the testimony contained in that publication had not been given, and while the cause was still in process of trial before it and undetermined, the petitioner had published in his newspaper, in a manner calculated to destroy the freedom of the court in determining the rights of the parties to the controversy then before it for determination, that this judicial declaration was false. The court therefore very properly refused to permit the truth or falsity of the publication to be made an issue of fact in the proceedings upon the charge of contempt; and it also properly denied the offer of the defend ant to introduce the evidence given at the trial of the cause of Talmadge against Talmadge, relating to other matters than those involved in the publication. Such evidence could have no bearing or relevance to the matter then under investigation. The case of Talmadge against Talmadge was on trial before the court without a jury. The court was required to make its findings of fact upon the testimony given before it, and to render its judgment in accordance with that testimony. When its attention was drawn to this publication, with a request by one of the attorneys in the case to be informed whether that was the testimony as understood by the court, and it stated from the bench in reply that such testimony had not been given, and that the publication was incorrect, this was a declaration by it that its decision was not in any way to be affected by what was stated in the publication to have been given as testimony in the case. If either of the parties had felt that the court was in error, it would have been proper

The defendant also alleged in his answer that the publication set forth in the affidavit of Mr. Jones was published without malice, and for the purpose of defending himself against the false charges made against him by the judge, and that he then believed that the original publication contained a correct statement of the evidence in the case. At the hearing, after the court had declined to allow any evidence upon the correctness of the original publication, the defendant proposed to offer proof in support of the several matters contained in his answer. The court gave him permission to show that the publication was made without malice, and that he believed it to be true, and also that he believed that he had a right to publish it, and to state his motive therefor. The court also stated that, if he could do so, he might show that the original publication was made from a report compiled by a reporter of the Bee from the testimony which he had heard in court. The defendant declined to accept these offers, or to introduce any evidence upon these matters, his counsel saying: "We desire to put in our entire defense so that it may all go together." As the defendant was given an opportunity to present any evidence in his power relevant to the issue or material to his defense, it cannot be said

that his trial was had contrary to the law of the land, or that he was convicted without a hearing.

The defendant's offer to prove by testimony that the publication did not interfere with the proceedings of the court was properly rejected. Whether the publication had such an effect or tendency was a question of law depending upon the nature of the publication and the circumstances under which it was made, and was a question of law to be determined by the court, and not upon the testimony of wit

nesses.

The claim of the petitioner that by the article published he sought to justify himself against the implied charge of wilful misrepresentation made by the court when its attention was first drawn to the statement of the testimony falls to the ground, in view of the fact that the court had made no reference to the petitioner, but assumed throughout its remarks that the publication had been made by reason of false and incorrect reports made by some one other than the petitioner. Whatever right the defendant might have to defend himself against what he deemed an unjust aspersion in these remarks of the judge, he had no right to do it in such a way as to interfere with the proceedings of the court. Unless courts are permitted to administer justice freely, and without being subjected to intimidation or coercion in their deliberations and decisions they will be powerless to protect those who are injured, or to enforce the rights of those who invoke their aid.

which is one of the chief features of our tripledepartment form of government, fetter the power itself." See also Myers v. State, 46 Ohio St. 473; State v. Frew, 24 W. Va. 416, 49 Am. Rep. 257; Ex parte Barry, 85 Cal. 603; People v. Durrant, 116 Cal. 179.

It is, however, contended by the petitioner that the Constitution has conferred upon the legislature the right to thus limit the power of courts to punish for contempt of their authority. This proposition is maintained by the following argument: Section 1 of article 22 of the Constitution provides "that all laws in force at the adoption of this Constitution, not inconsistent therewith, shall remain in full force and effect until altered or repealed by the legislature." The chapter of the Code of Civil Procedure relative to contempts was a law in force at the adoption of the Constitution, and, not being inconsistent therewith, was, by virtue of this section, when the people voted for and adopted the Constitution, adopted by them as a part and parcel of that instrument, and so continued until changed by legislation; that the amendment of 1891, having been enacted under the power implied in the clause, "until altered or repealed by the legislature," is to be regarded as if the Constitution had conferred express power upon the legislature to thus limit the power of the courts to punish for contempt. No such effect can be given, however, to the language of this section of the Constitution. The legislature derives no greater power of legislation therefrom than is conferred upon it in article 4 of the Constitution, nor is the judicial department of the state deprived of any of its power by virtue of this section. The purpose and effect of the section was not to change the character of the laws therein referred to, or to give to them any different effect from that which they previously had, but the section was placed in the Constitution for the purpose of avoiding any question of implied repeal of any existing laws that were not inconsistent with the Constitution; or, as is expressed in the preamble to the section, that no inconvenience may arise from the alterations and amendments in the Constitution of this state." The order of the superior court should be affirmed, and the writ discharged.

We concur: Temple, J.; Henshaw, J.
Rehearing denied.

It is contended by the petitioner that by reason of the following provision in § 1209, Code Civ. Proc., as amended in 1891: "But no speech or publication reflecting upon or concerning any court, or any officer thereof, shall be treated or punished as a contempt of such court, unless made in the immediate presence of such court while in session, and in such a manner as to actually interfere with its proceedings," the court had no authority to adjudge him guilty of contempt. The effect of this provision was considered in Re Shortridge 99 Cal. 526, 21 L. R. A. 755, and it was said in that case: "No authority has been found which denies the inherent right of a court, in the absence of a limitation placed upon it by the power which created it, to punish as a contempt an act-whether committed in or out of its presence, which tends to impede, embarrass, or obstruct the court in the discharge of its duties. It is a doctrine which is admitted in all its rigor by American courts everywhere, and does not need the support of foreign authorities based upon the fiction that the majesty of the King, represented in the persons of the judges, is always present in the court. It is founded upon the principle,which is coeval with the existence of the courts, and as necessary as the right of self-protection, -that it is a necessary incident to the execution of the powers conferred upon the court, and is necessary to maintain its dignity, if not its very existence. It exists independent of stat ute. The legislative department may regulate the procedure and enlarge the power, but it NOTE. For the effect of an alteration of a negocannot without trenching upon the constitutiable note as affecting bona fide holders, see note tional powers of the court and destroying the to Citizens' Nat. Bank v. Williams (Pa.) 35 L. R. autonomy of that system of checks and balances A. 464.

(Department 1.)

Margaret E. WALSH, Respt.,

V.

Emma E. HUNT, Appt.

(........ Cal.........)

1. The unauthorized alteration of an instrument by an agent with whom it is left to be delivered does not bind the principal.

A the Superior Court for Santa Clara County thereupon Hughes presented for her signature

changed the note and mortgage remained as 15 Am. Rep. 372; Bruce v. Westcott, 3 Barb. when executed by defendant. Thereafter, on 374; Wood v. Steele, 73 U. S. 6 Wall. 80, 18 L. the same day, Hughes delivered both instrued. 725; Greenfield Sav. Bank v. Stowell, 123 ments as thus altered by him, to the plaintiff, and in return received from her the sum of $1,200 in gold coin, $500 of which he paid in satisfaction of said prior mortgage, and the balance of $700 he retained, and frauduently converted to his own use. Both plaintiff and defendant were ignorant of the alteration of said instruments until about one year after their execution, when Hughes absconded, and they subsequently met for the first time. Upon these facts the court below gave judgment for plaintiff foreclosing her mortgage for the full amount of said note, principal and interest, as expressed therein after such alteration, and from this judgment and an order denying her a new trial defendant appeals.

Mass. 196, 25 Am. Rep. 67. Nor can it make any difference that the alteration is made before delivery of the instrument. Wood v. Steele, 73 U. S. 6 Wall. 80, 18 L. ed. 725. Manifestly, whether made before or after that fact, if the alteration be effected by other than the party to be bound, and without his knowledge or consent, it involves the same question of ostensible agency as when made after delivery. In either case the question is whether, under the circumstances, the person making the alteration is to be deemed the agent of the one whose contract is affected. Here, while Hughes was admittedly the agent of defendant for certain purposes, as found by the court, it would be absurd to hold that there was, upon the facts, any implied or ostensible authority conferred upon him to commit a forgery.-the plain legal effect of his act,—and bind the defendant thereby.

the rate of interest, wherever specified therein, had been written in pencil by said Hughes at the time he prepared said note and mortgage, and prior to the said visit of said defendant to the office of said Hughes:" and the implication, not expressly found as a fact, that defendant signed and executed the instruments in that condition. The respondent's argument is that by her act in executing the papers in that condition, and leaving them with Hughes, she enabled or facilitated the successful perpetration of the fraudulent alteration by which plaintiff was deceived into accepting the note and mortgage, and therein was guilty of such negligence as precludes her pleading such alteration to plaintiff's prejudice, upon the principle that where one of two innocent persons must suffer, the loss must fall upon the one through whose negligence the injury was occasioned.

It appears from the briefs and arguments of counsel that the considerations actuating the court below in reaching its conclusion were: First, that Hughes being the agent of defendant in the transaction, the latter is bound by The assumed negligence of defendant is based his acts, whether expressly authorized or not; upon that part of the finding above quoted second, that defendant was guilty of such neg. "that the principal sum of said note, whereligence in the execution of the note and mort-ever expressed in said note and mortgage, and gage as that Hughes was enabled to perpetrate the fraud which deceived the plaintiff, and that defendant is therefore estopped from setting up such fraud as a defense; and these are the two substantive propositions upon which respondent now relies to sustain the judgment. Neither proposition, as it seems to us, receives any adequate support from the findings. Hughes was defendant's agent, it is true, and for his acts as such she is bound; but what was the extent of that agency? He was authorized to find a party willing to make the loan, which he did, and thereupon, as found by the court, the note and mortgage, complete in all their parts, were executed by defendant, and left by her with Hughes "for delivery to the said plaintiff." This, then, was the extent of his express authority as to those instruments, -that of a mere bailee for delivery. There is certainly no express finding of any authority to alter or tamper with the instruments in any respect, and as certainly there is nothing in the facts from which such authority could be implied. Where there is no express authority in the person to whom a note or other instrument is intrusted or delivered to make alterations therein, it is only where such writing is patently incomplete in some respect, such as an omitted date, or a blank space required to be filled to make the contract express the intent of the parties, that there is any implied authority to insert new matter, or make any material addition thereto. Even in such a case the implication must very plainly arise from the circumstances, or the maker will not be bound. This is upon the very obvious principle that any unauthorized change in a material respect destroys the integrity of the instrument as the contract which the maker has executed. It ceases to be his contract, and is avoided, even in the bands of an innocent holder for value. These principles are thoroughly well settled, not only as to deeds and other sealed instruments, but as to commercial paper as well. Angle v. Northwestern L. Ins. Co. 92 U. S. 330, 23 L. ed. 556; McGrath v. Clark, 56 N. Y. 34,

The appellant contends that the evidence is wholly insufficient to sustain this feature of the finding; and, if the point were essential to the determination of the case, we should be constrained to adopt this view. But, assuming that mere negligence could ever in such a case be a bar to the defense here made, the fact found does not establish such negligence. In the first place it is not expressly found that the execution of the instrument in the manner indicated was an act of negligence, and no inference to that effect can be deduced from the facts. The court finds that the words which were erased and altered were written in pencil, but it is not found that Hughes's criminal act of spoliation was thereby in any manner facilitated or rendered easier, or that it could not have been as readily accomplished had the words been written in any other manner; and we cannot say, either as an inference of fact or as one of law, that, for the purposes accomplished by Hughes, pencil writing is more readily effaced than ink or other substance. That would depend in any given case upon circumstances not here found, and which the court could not know,—such,