but he is responsible at the hands of the law for an abuse of that right. He shall have no censor over him to whom he must apply for permission to speak, write, or publish, but he shall be held. accountable to the law for what he speaks, what he writes, and what he publishes. It is patent that this right to speak, write, and publish cannot be abused until it is exercised, and before it is exercised there can be no responsibility. The purpose of this provision of the constitution was the abolishment of censorship, and for courts to act as censors is directly violative of that purpose. This provision of the constitution as to freedom of speech varies somewhat from that of the constitution of the United States, and also more or less from the provisions of many state constitutions treating of this question; but, if there is a material difference in the various provisions, it works no 98 harm to this petitioner, for the provision here considered is the broader, and gives him greater liberty in the exercise of the right granted.

The meaning of this provision, or others of similar import, has been declared with unanimity by all commentators upon the law. Blackstone declares that the liberty of the press consists in laying no previous restraints upon publications, and not in freedom from censure for criminal matters when published. He says: "Every freeman has an undoubted right to lay what sentiments he pleases before the public; to forbid this is to destroy the freedom of the press. But if he publishes what is improper, mischievous, or illegal, he must take the consequences of his own temerity. To subject the press to the restrictive power of a licensor, as was formerly done before and since the revolution of 1688, is to subject all freedom of sentiment to the prejudices of one man, and make him the arbitrary and infallible judge of all controverted points in learning, religion, and government. . . . Thus the will of individuals is still left free; the abuse only of that free will is the object of legal punishment."

Story, in his work upon the Constitution, section 1885, declares: "Indeed, the liberty of the press, as understood by the law of England, is the right to publish without any previous restraint or license; so that neither the courts of justice nor other persons are authorized to take notice of writings intended for the press; but are confined to those which are printed."

De Lolme, in his Constitution of England, page 872, declares: "Liberty of the press consists in this: that neither courts of justice, nor any other judges whatever, are authorized to take notice of writings intended for the press, but are confined to those which are actually printed." In Ex parte Barry, 85 Cal. 607,

20 Am. St. Rep. 248, the foregoing doctrine is reiterated and approved.

It would seem that the jurisdiction here attempted to be exercised would essentially belong to a court of equity; 99. yet, even if this proceeding for a restraining order had been inaugurated in such a forum, it would have signally failed. In Story's Equity Jurisprudence, section 948 a, the author says: "But the utmost extent to which courts of equity have gone, in restraining any publication by injunction, has been upon the principle of protecting the rights of property in the book or letters sought to be published. They have never assumed, at least since the destruction of the court of star chamber, to restrain any publication which purports to be literary work, upon the mere ground that it is of a libelous character and tends to the degradation or injury of the reputation or business of the plaintiff who seeks relief against such publication." And this principle was declared by the learned chancellor in Brandreth v. Lance, 8 Paige, 26, 34 Am. Dec. 368, wherein he said: "It is very evident that this court cannot assume jurisdiction of the case presented by the complainant's bill, or of any other case of like nature, without infringing upon the liberty of the press, and attempting to exercise a power of preventive justice which, as the legislature has decided, cannot safely be intrusted to any tribunal consistently with the principles of free government." After referring to the court of star chamber, he proceeds: "Since that court was abolished, however, I believe there is but one case upon record in which any court, either in this country or in England, has attempted, by an injunction or order of the court, to prohibit or restrain the publication of a libel, as such, in anticipation."

In effect, the order made by the trial court in this case was one commanding the petitioner not to commit a contempt of court, and such a practice is novel in the extreme. The court had ample power to protect itself in the administration of justice after the contempt was committed. As to the offender, it could punish him; as to the defendant on trial, he could be deprived of no rights by any act of this petitioner. If the publication 100 deprived him of a fair and impartial trial at that time, a second trial would have been awarded him.

We conclude that the order made by the trial court was an attempted restraint upon the right of free speech, as guaranteed by the constitution of this state, and that petitioner's mouth could not be closed in advance for the purpose of preventing, an utterance of his sentiments, however mischievous the prospective re

sults of such utterance. He had the right of free speech, but at all times was responsible to the law for an abuse of that right.

For the foregoing reasons the order is annulled, as being beyond the power of the court to make.

Harrison, J., Van Fleet, J., Henshaw, J., and Beatty, C. J., concurred.

JUSTICE MCFARLAND dissented. He claimed that all the provisions of the constitution should be construed together, and effect given to each, when possible; that the provision guaranteeing that every citizen may freely speak, etc., should be construed in view of that large and important part of the constitution creating the judicial department of the government and giving it the usual and necessary power of courts; that one of the most essential of these powers is that of protecting the court against unlawful intrusion upon its orderly conduct of business, and of insuring litigants in a pending proceeding the free and unembarrassed administration of justice; that in the case before the court a trial was gravely proceeding in which the life of a man was at stake, and an act was about to be done which, it was admitted, would be an interference with the administration of justice, and would deprive the accused of a fair and impartial trial; and finally that it is not possible that the court in such a contingency is without power to protect the defendant from an act which would deprive him of such a trial. The claims thus made appear to us to be unanswerable, and we are confident they are not answered in the opinion of the majority of the judges. The idea that the constitution guarantees the liberty to do the act complained of, subject only to liability to compensate the party injured, carried to its logical end involves the assertion that the accused after being convicted of murder through a wrongful act has a sufficient remedy in a prosecution of the wrongdoer for contempt of court, or in an action to recover damages.

CONTEMPT-LIBERTY OF THE PRESS.-It is a contempt to publish remarks in a newspaper which have a tendency to prejudice the public with respect to the merits of a cause pending in court and corrupt the administration of justice: Respublica v. Oswald, 1 Dall. 319; 1 Am. Dec. 246, and note; Myers v. State, 46 Ohio St. 473; 15 Am. St. Rep. 638, and note; State v. Judge, 45 La. Ann. 1250; 40 Am. St. Rep. 282, and note; Matter of Sturoc, 48 N. H. 428; 97 Am. Dec. 626, and note. The liberty of the press to fairly crit icise the official conduct of a judge or the decisions or proceedings of courts and to expose any wrongful, corrupt, or improper act of a judicial officer, will be carefully preserved and protected by the court; but if a newspaper publisher prints and circulates unjust censures or false charges concerning such matters he will be held strictly accountable and punished for contempt: Ex parte Barry, 85 Cal. 603; 20 Am. St. Rep. 248, and note. See, also, the note to In re MacKnight, 28 Am. St. Rep. 461, and the full discussion of the subject to be found in the extended note to State v. Galloway, 98 Am. Dec. 414-420.

DE LA MONTANYA V. DE LA MONTANYA.

[112 CALIFORNIA, 101.]

JURISDICTION OF ABSENTEES.-Process cannot go beyond the state, and compel a person in another state to return to the state where an action is pending, and to there make a defense, though he is a native of, and has a domicile in, such state. Hence a personal judgment against one who was not in the state when the action was commenced nor afterward, and who did not appear voluntarily, nor otherwise, is void.

DIVORCE, JUDGMENT AGAINST ABSENTEE.-A judgment in a suit for divorce awarding plaintiff the care, custody, and control of her minor children, and declaring that she shall have the right at any future time to apply to the court for an allowance, based upon constructive service of process, is void, though the defendant was a native of, and domiciled within, the state, if he and the children were, at the commencement of the action, and ever thereafter, beyond the state.

DIVORCE-JURISDICTION OVER CHILDREN NOT IN THE STATE.-In a suit for divorce against a defendant who had taken his children, and fled with them from the state before it was commenced, a judgment awarding to plaintiff the custody and care of such children is void, if the process was served beyond the state.

DIVORCE AGAINST ABSENTEE, JURISDICTION TO AWARD ALIMONY.-A court in a suit for divorce has no jurisdiction to award alimony as against a defendant when he was not within the state when the suit was commenced, nor afterward, nor did he appear in the action voluntarily or otherwise.

JUDGMENT.-A MOTION MAY BE ENTERTAINED TO VACATE A JUDGMENT, though the moving party does not come into court, nor make an affidavit of merits, nor otherwise submit himself to its jurisdiction, where the ground of the motion is that the judgment, or the part sought to be vacated, is void because the court did not have jurisdiction of the person of the defendant, the process having been constructively served on him beyond the state.

APPELLATE PROCEDURE.-AN APPEAL MAY BE PROSECUTED FROM AN ORDER REFUSING TO VACATE A JUDGMENT where there is no other method in which the right of the appellant to the relief sought by him can be presented to the appellate court, and the facts on account of which he bases his claim to relief do not appear from an inspection of the judgment-roll.

Dorn & Dorn, for the appellant.

Garber, Boalt & Bishop, for the respondent.

105 TEMPLE, J. This is an action to obtain a divorce in which the plaintiff also asked for the exclusive custody and control of two children, the issue of the marriage, and also for permanent alimony, as well as for a suitable allowance to enable her to prosecute this action.

100 The defendant and the children, who were, of course, infants, were absent from the state when the suit was commenced, and have ever since remained absent. No personal service of the summons was had on the defendant, and he did not appear in the

action. An attempt was made to serve the summons by publi

cation.

It is claimed that the service was void, because not made as required by the laws of this state, but I shall assume that such attempt at a constructive service was in accordance with the statute in every respect.

The defendant was born, and during his whole life had lived, in this state. He left the state on the twentieth day of November, 1893, with two children of plaintiff and defendant, proceeding to New York, and on the ninth day of December, 1893, left New York for Paris, France, where he arrived with his children on the nineteenth day of December. January 4, 1894, he made application to the ministry of justice of France for express permission to be domiciled in France. Such permission was granted on the fourteenth day of July, 1894. Since December 19, 1893, defendant has resided in France with his children, and neither he or either of the children have since been within this state.

This suit was commenced two days after the departure of the defendant from the state, and it is claimed that defendant left the state and took the children for the express purpose of evading the jurisdiction of the courts of this state.

As stated, the defendant did not appear in said action and the publication of summons having been made, in due time the default of the defendant was entered, and the court proceeded to hear the cause, and on the sixteenth day of May, 1894, judgment was rendered against defendant, wherein it was adjudged: 1. That the marriage be dissolved; 2. That the exclusive custody, care, and control, and education of the children be awarded to plaintiff; and 3. That plaintiff "shall have the right, at such time in the future as she shall be advised, to apply to the court for such suitable 107 allowance and sum to be paid her by said defendant for her support during her life, and such further sums as may be necessary in order to enable her to make proper compensation to her attorneys and counsel in said action, and to enforce this decree and judgment."

On the seventh day of September, 1894, on due notice, the defendant moved the court for an order: 1. Vacating the judgment in so far as the same relates to alimony, or any provision for the support of plaintiff or for the support of the children of plaintiff and defendant; 2. Vacating the judgment so far as it relates to the care, custody, and control of the children; 3. Vacating the judgment so far as it relates to alimony or allowance for the sup