they were spoken, the court was sitting and discharging judicial functions, and words were spoken in the immediate view and presence of the court, and were calculated to interrupt its proceedings or impair its authority. No such charge is made, and the fact that it is charged only that the words were spoken in the presence of jurors and citizens is to our minds significant. However willing we might be to do so, we cannot, under the rules governing the statement of criminal offenses, indulge presumptions in aid of charges, and in this case infer that the offense was committed while the court was actually sitting, and in its immediate view 503 and presence, when no such allegations appear in the affidavit. It is charged that the words were spoken while the court was in "session." But the expression "in session" is commonly used not only to express the idea that the judge is sitting on the bench and engaged in the discharge of official functions; the same term is quite as often employed to convey the idea that court has convened for a term, and has not yet adjourned for the term. But if the terms "sitting" and "session," as applied to courts, were precisely equivalent and interchangeable terms, the affidavit is still open to the criticism that it is not alleged that the language was used in the immediate view and presence of the court. We regard this averment essential in this offense, whether the prosecution is under the statute or not. It is obvious that language, however offensive, may be spoken even while the court is in session, and in the courtroom, in such a way that it would not constitute an offense committed in the immediate view and presence of the court, and tending to interrupt its proceedings.

If we are correct in our conclusion as to the Irgens affidavit, it will follow that the exception to the jurisdiction of the district court to proceed to the trial of the contempt feature of this case was well grounded and valid. The court would certainly be without jurisdiction in the sense of being without lawful authority to proceed with the contempt branch of the case, if there was no valid charge of contempt on file; and we hold that there was none. To prevent being misunderstood, we say expressly that it is our opinion that where it is charged that the offensive behavior was exhibited while the court was sitting, and in its immediate view and presence, the charge can be made out by proof without showing that the offensive act took place within the sight or hearing of the judge. The cases cited next below will illustrate what is meant by the expression "immediate view and presence of the judge': See People v. Barrett, 9 N. Y. Supp. 321; 56 Hun, 351; affirmed 121 N. Y. 678; In re Griffin,

1 N. Y. Supp. 7. Under the rule applied in these cases, a contempt is established where the behavior is exhibited while 508 the court is sitting in the discharge of judicial functions, if it is committed in the presence of some branch of the court when so engaged.

pre

We are also clear that it was fundamentally erroneous and judicial to the appellant to require him to plead to the facts at the threshold of the case, and without allowing him to raise the preliminary objection that the proceeding brought against him was irregular and void, because it was unauthorized by any law or practice. It would have been proper practice to test the validity of the compound proceedings attempted to be brought against the accused by a preliminary motion to quash the same, and, if that had been overruled, to follow it by a motion requiring the prosecution to elect and declare at the outset upon which branch of the case it would first proceed. It cannot be overlooked that the appellant was deeply concerned in these preliminary questions. He had been cited into court for a double purpose, and was threatened by twofold penalties. He was required to show cause why, on account of the charges on file against him, he should not be punished criminally, and also why he should not suffer even more seriously by a disbarment as an attorney. Confronted by such a dilemma, he was entitled to such protection, at least, as the statute in terms affords. He should have been accorded the right to demur to the accusation in so far as the same was sought to be used as a basis for the revocation of his attorney's license; and in that branch of the case it was seriously prejudicial to compel him to answer interrogatories under oath touching the facts bearing upon the charges against him.

case.

It is, in our opinion, needless to further discuss the facts in the record. Obviously, the whole proceeding was not only unprecedented, but was in the highest degree prejudicial to the legal rights of the accused. The objections to this proceeding cannot be answered by saying that the proceedings at the trial which were actually had were those only which may be taken in a contempt This would not be true either in fact or in legal 505 effect. The order to show cause required the accused to show cause why he should not be disbarred from practice as an attorney; and, pursuant thereto, the learned trial court, after imposing the highest penalty allowed by the statute for a criminal contempt of court, proceeded, in the same judgment to suspend the accused from practicing as an attorney in said court for an indefinite period, i. e. "until the further order of the court." It thus appears

that, from the inception to the close of the proceedings in the district court, the vitally important matter of the appellant's disbarment from practice was an ever present factor; and the further fact stands out prominently that the statute regulating disbarments, and surrounding an attorney with many safeguards not available in contempt proceedings, was wholly ignored. It is manifest that the court below proceeded to try and doubly punish the accused upon a wholly mistaken view of the law, namely, that when an attorney charged with a criminal contempt, and tried on such charge, and no other, is found guilty, he may at once be suspended or disbarred from practice. It is doubtless true that certain gross contempts of court, when done by an attorney, will furnish ground for prosecution for misbehavior in office, punishable by disbarment; but in all such cases the procedure in the statute must be observed. In this state there is a statute framed expressly to regulate proceedings against attorneys for disciplinary purposes, and under which an attorney's license may be suspended or revoked: Rev. Codes, seç. 432. See, also, State v. Start, 7 Iowa, 499; Ex parte Smith, 28 Ind. 47; Withers v. State, 36 Ala. 252; Ex parte Bradley, 7 Wall. 364. Disrespectful language used in court by counsel is at once a criminal offense, punishable summarily, and a ground for disbarment for official misconduct: 3 Am. & Eng. Ency. of Law, 785; Holman v. State, 105 Ind. 513; Sharon v. Hill, 24 Fed. Rep. 726; 1 Am. & Eng. Ency. of Law, 945, 946, and notes. Insulting communications, made directly and personally to the judge, respecting his action in a pending case, are punishable as a contempt: In re Pryor, 18 Kan. 72; 26 Am. Rep. 747. Such conduct is also 506 ground of disbarment: People v. Green, 7 Colo. 237; 49 Am. Rep. 351. Conduct which is not criminal may, nevertheless, be ground for disbarment: Beene v. State, 22 Ark. 149; Weeks on Attorneys at Law, secs. 80, 81; People v. Green, 9 Colo. 506; 7 Colo. 237; 49 Am. Rep. 351; Cramer v. Tittel, 79 Cal. 332.

But, from our views of the law as already set forth, it becomes necessary to reverse the judgment of the trial court for irregularities of procedure highly prejudicial to the appellant, and this would be our holding in this case irrespective of the question as to the sufficiency of the affidavits to charge a criminal offense. We cannot, however, conclude this opinion without an allusion to the fact that this record furnishes ample evidence that the appellant has repeatedly assailed the official rulings of the Honorable Roderick Rose, presiding judge, of said court, with respect to the liquor actions pending in his court, and has repeatedly

assailed both his official and private character. The persistence by the accused in the use of abusive and vituperative language applied to the judge, although in his absence, is, in our judgment, entirely inconsistent with the obligation of an attorney "to maintain the respect due to the courts of justice and judicial officers": Rev. Codes, sec. 427. Nor do we wish to be understood as holding in this case that the language charged would not, in a proper proceeding, afford sufficient ground for the disbarment of the accused, under subdivision 3 of section 433 of the the Revised Codes. Upon this question we are not called upon now to pass, nor shall we here intimate our views upon it. The questions in the case supposed, should such a case ever arise, would involve special investigation, and the consideration of the constitutional rights of all citizens, attorneys as well as others, to criticise the action of public officials in a proper manner, and within certain legal limitations of that right, and would further and especially necessitate inquiry as to the rights of attorneys to indulge in too severe strictures upon the official conduct of judges presiding over courts in which attorneys are licensed to practice. These inquiries cannot be further prosecuted here; but on this aspect of the question, 507 see People v. Green, 7 Colo. 237; 49 Am. Rep. 351; Beene v. State, 22 Ark. 149; People v. Green, 9 Colo. 506; Ex parte Bradley, 7 Wall. 364.

The judgment will be reversed.

All the judges concurring.

ATTORNEYS-CONTEMPT

AND

DISBARMENT-APPEAL.The power possessed by courts to disbar attorneys is dependent upon other grounds distinct from those upon which rests the power to punish for contempt: See monographic note to Burns v. Allen, 2 Am. St. Rep. 849, on summary jurisdiction; and to State v. Kirke, 95 Am. Dec. 343, on causes and proceedings for the disbarment of attorneys. When an affidavit is presented as the basis for a proceeding for contempt, the court must, in the first instance, examine the same, and if the facts presented do not show that a contempt has been committed, the court is without jurisdiction to proceed: Mullin v. People, 15 Colo. 437; 22 Am. St. Rep. 414. An attorney should not be disbarred for contempt unless the offense is of so gross and serious a character as to render him unworthy of his office: See monographic note to State v. King, 95 Am. Dec. 343. A contempt may be a ground for disbarment; but a cause of disbarment need by no means constitute a contempt. There may be acts for which an attorney may be both fined for contempt and disbarred; but a court will not punish by disbarment for contempt when the act has not been committed in its presence, and there is another mode of punishment: Note to State v. Kirke, 95 Am. Dec. 343. Even if courts have power to disbar an attorney for offensive language concerning proceedings in court, they should proceed with very great caution, and decline to act otherwise than by inflicting punishment as for a contempt, except in very aggravated or extraordinary

584

FINLAYSON . PETERSON.

[N. Dakota, cases: See monographic note to In re Philbrook, 45 Am. St. Rep. 83, 85. A criminal contempt is an act in disrespect of the court or of its process, or which obstructs the administration of justice, or tends to bring the court into disrepute: Ex parte Robertson, 27 Tex. App. 628; 11 Am. St. Rep. 207. There are decisions, like the principal case, which go very far toward affirming that an attorney may employ very extreme language of and concerring a judge and his motives and rules of action as such, provided the language was not used in court, but is a mere expression of the ill-feeling and ill opinion of one man toward another. But even if such language used toward a court or judge is unjustifiable, and constitutes a contempt, such as may, and ought to, be punished, the punishment therefor can never properly be the disbarment of the offender, unless his conduct is such as to establish his unfitness to discharge the duties of his profession: Note to In re Philbrook, 45 Am. St. Rep. 86. Protection will be afforded to attorneys against a wrongful exercise of the power of disbarment, and the supreme court will interfere where a case of wrong or injustice is brought to its attention: Note to People v. MacCabe, 36 Am. St. Rep. 274. An attorney disbarred for a contempt has a right of appeal, for this is not, properly speaking, a punishment for contempt: See monographic note to Clark v. People, 12 Am. Dec. 186, on the power to punish for contempt.

OBJECTIONS FOR WANT OF JURISDICTION, if it exists, may be raised by answer, or at any subsequent stage of the proceedings: Godfrey v. Godfrey, 17 Ind. 6; 79 Am. Dec. 448; even on appeal: Green v. Creighton, 10 Smedes & M. 159; 48 Am. Dec. 742. It is always competent to inquire into the jurisdiction of a court, for on this the judgment must depend for its validity: Smith v. Tupper, 4 Smedes & M. 261; 43 Am. Dec. 483.

FINLAYSON V. PETERSON.

[5 NORTH DAKOTA, 587.]

TIME-MORTGAGES-FORECLOSURE PUBLICATION OF NOTICE OF SALE.-If the statute requires a publication of notice of sale, upon the foreclosure of a mortgage, by advertisement, to be made "for six successive weeks at least once in each week," the first publication must be made at least forty-two days before the day of sale, and there must be at least six publications, one of them being in each of the six weeks between the first publication and the day of sale. If there are but six publications, all exactly a week apart, and the day of sale is less than a week after the last publication, the foreclosure proceedings are void.

DEFINITIONS.-THE WORD "FOR" in a statute requiring a publication of notice of sale, upon the foreclosure of a mortgage, by advertisement, to be made "for six successive weeks at least once in each week" means "throughout" or "during the continuance of." It is obvious that a notice of sale has not been published "during the continuance of" a week when the day of sale follows the day of publication at an interval of less than a week.

STATUTES-CURATIVE LAWS, WHEN VALID.-Defects, such as those in a deed or acknowledgment, or other defects which it would be unjust for one to take advantage of, may be cured by retroactive legislation, for the reason that no one has a vested right to be unjust or to do a moral wrong.

STATUTES-CURATIVE LAWS, WHEN VOID.-The legislature have no power to validate void foreclosure proceedings by retroactive legislation which attempts to cure defects in failing