municipal court of the city of West Palm Beach and which you knew was pending upon a writ of habeas corpus before the judge of the circuit court of this county, and it is apparent from the language you use in said letter as a whole that said letter was intended by you as a reflection upon the court, or the judge thereof, and was written for the purpose of embarrassing him and influencing him in the disposition of said case.

"(2) It is apparent from reading said letter as a whole that by inference and innuendo, at least, you intended to charge that the court was induced to grant the writ of habeas corpus in the case therein referred to by the influence and Iwealth of Antelo and his friends, and by implication to charge that the court was by these corrupt influences induced to grant said writ of habeas corpus.

"(3) In publishing to John M. Lindsey and C. H. Summers said letter so written by you and mailed to the court, you stated to them that the said Edwin Antelo was a member of an order known as the Knights of Columbus, and that William A. Weihe, who went upon the bond of said Antelo, was likewise a member of said order known as the Knights of Columbus, and that the Knights of Columbus were behind Antelo in his effort to obtain freedom and were using their influence with the court to influence the court that by the influence so brought to bear the court was forced to grant the writ of habeas corpus upon the petition presented to him in said. case. Said statements so made by you were known by you to be false, or could have been so known by your making the slightest inquiry or investigation."

The rule was served and the respondent filed a motion to quash the rule, which motion was denied.

The respondent filed the following answer:

"(1) Respondent admits that he wrote the letter set out in said order to show cause, but disclaims

any intention that said letter was intended by him as a reflection upon the court, or upon the judge thereof, or that it was written for the purpose of embarrassing said judge or influencing him in the disposition of said cause entitled 'Edwin Antelo against Leonard Bailey,' but, on the contrary, avers that said letter was written for the information of the judge of said circuit court.

"(2) Respondent admits that he sent copies of said letter to several people in the city of West Palm Beach, Florida.

"(3) Respondent denies that he exhibited also copies of said letters to various people and read the same to them and stated to them that Davis had granted a writ of habeas corpus to Edwin Antelo because of corrupt influences brought to bear upon him, the said Judge Davis. And further, respondent denies that he made the statement to anyone that Judge Davis had granted a writ of habeas corpus to Edwin Antelo because of corrupt influences brought to bear upon him, the said judge.

"(4) Respondent denies that he stated at the time of exhibiting said letter to the parties referred to in said order-that he stated to said parties-that, if Davis, upon hearing said writ of habeas corpus then pending before him in this court, released Edwin Antelo, that he (the respondent) would see to it that Davis was defeated for judge of the district court of the United States for the southern district of Florida, a position for which the said Davis was then an applicant, and respondent further denies that he stated to anyone that if said Judge Davis, upon hearing said writ of habeas corpus released Edwin Antelo, the petitioner, that respondent would see to it that said Davis was defeated for judge of the district court of the United States for the southern district of Florida.

"(5) Said respondent denies that the language of said letter has a tendency to impede, embarrass, or

obstruct the court in the due administration of justice, or that it contains false or defamatory reflections upon the judicial integrity of the court; and respondent further denies that it was intended by him to impede, embarrass, or obstruct the court in the administration of justice in the cause then pending undisposed of before the court, or that said letter contains false or defamatory statements regarding the court.

"(6) Respondent denies that, by or in said letter, he intended to imply that the court was induced to grant the writ of habeas corpus by the wealth of Antelo or his friends, or that he charged in any way that the court was by that corrupt influence induced to grant said writ of habeas corpus.

"(7) Respondent denies that, in publishing said letter to John M. Lindsey and C. H. Summers he stated to them, or either of them, that said Edwin Antelo was a member of the order known as Knights of Columbus, or that William A. Weihe, who went upon the bond of said Antelo, was likewise a member of said order, or that the Knights of Columbus were behind Antelo in his effort to obtain freedom, or that they were using their influence with the court to influence the court, or that by the influence so brought to bear upon the court it was forced to grant the writ of habeas corpus upon the petition presented to the court in said cause.

"(8) Further answering answering said rule or order to show cause, respondent alleges that the said circuit court of the fifteenth judicial circuit of the state of Florida was not in session in a term thereof during any of the times mentioned in said rule or order to show cause, or at the time of the issuance of said order, but, on the contrary, that said court was in vacation during all of said times, and respondent avers that on Saturday, November 11, A. D. 1922, the special fall term of said circuit court was adjourned, without date, and that

such circuit court has not been in session from said time up to now." At the hearing the circuit judge rendered the following:

"Order.

"This cause coming on to be heard before this court, upon a rule nisi duly served upon the respondent, Joe L. Earman, and he appearing in court in person and with his counsel, Frank A. Pettibone, Esquire, and James B. Hodges, Esquire, and the respondent together with his counsel being in court during a full hearing of this matter and during the entering and reading to the respondent of this judgment and finding of this court, and the court having heard the testimony in the matter, and having read the answer or return filed by the respondent, and being fully advised in the premises:

"The court finds, orders, and adjudges that the allegations set forth in the rule nisi filed in this cause and issued by this court, have been proved and substantiated by the evidence and admitted by the respondent.

"It is further found, ordered, and adjudged that this court was not, at the time of the writing and publishing or circulating of the said letter set forth and alleged in the rule nisi, in vacation, but was in session, and it was during term time, as appears by the records of this court, of which this court takes judicial cognizance.

"And the court further finds, orders, and adjudges that the case of Edwin Antelo v. Leonard Bailey, chief of police of West Palm Beach, at the time of writing and publishing of the said letter, and at the time of making embarrassing and insinuating and threatening remarks by the respondent, was before the court, and had not been decided and determined, and no final order had been issued and entered therein; that the final order in said cause was not entered until about 2 o'clock P. M. on the 6th day of February, 1923; and, at the time of the

offense as alleged in the rule nisi, the court had the said cause under advisement, and the letter and threats and insinuations and words, as set forth and alleged in the rule. nisi, came to the attention of this court and did embarrass this court in determining the said cause of Antelo v. Bailey, and did interfere with and hinder and embarrass this court in arriving at a decision and final order in said cause.

"The court further finds, orders, and adjudges that the said Joe L. Earman, respondent, is guilty of contempt against this court.

"R. C. Baker, sheriff of Palm Beach county, Florida, is ordered to take the said Joe L. Earman into his control and to confine him in the common jail of Palm Beach county, Florida, from 1 o'clock A. M. on the 7th day of February, A. D. 1923, until 1 o'clock P. M. on the 17th day of February, A. D. 1923; and when he has fully exercised and complied with the order of this court that he shall make his return to this court in this cause, and fail not.

"It is ordered and adjudged that Joe L. Earman, respondent in this cause, pay the costs of this proceeding.

"Done and ordered at West Palm Beach, Florida, this 6th day of February, A. D. 1923.

"[Signed] E. C. Davis, Judge." A writ of habeas corpus was, on February 9, 1923, issued from this court; and pending the determination of the matter the respondent was permitted to secure his release from actual custody by the execution of a bond for $500 under § 3571, Revised General Statutes of 1920. See 4 Enc. Pl. & Pr. 769.

The return made by the sheriff is in substantial accord with the allegations of the petition.

The petitioner filed a "reply or answer to the return," and the sheriff filed a motion to strike the "reply or answer."

It appears from a certified copy of the minutes of the court that the

circuit court for Palm Beach county was in session on November 11, 1922. The statute requires a term of court in the fifteenth judicial circuit to be held in Palm Beach county on the second Tuesday in September, and in St. Lucie county on the second Tuesday in November, and in Okeechobee county on the second Tuesday in December. The second Tuesday in November, 1922, came on November 14, 1922, and the second Tuesday in December, 1922, was December 12, 1922. A certified copy of the minutes shows that the circuit court for St. Lucie county was in session in St. Lucie county on November 14, 1922. A certified copy of the minutes of the circuit court for Palm Beach county shows this entry:

"This the fall term of the circuit court of Palm Beach county, Florida, is adjourned sine die this February 8, A. D. 1923.

"E. C. Davis, Judge."

When the circuit court convened in St. Lucie county on November 14, 1922, pursuant to the statute, the fall term of the same court in Palm Beach county, which was in session on November 11, 1922, was necessarily at an end, even though the judge on February 8, 1923, signed an order that the fall term of the circuit court of Palm Beach county was adjourned on that day.

The petitioner moved for a discharge upon the following grounds:

"First, that the circuit court was without jurisdiction to enter the order, or judgment, charging this petitioner to be guilty of a contempt of court under the rule set forth in the return.

"Second, that the acts and words set forth in the rule against this petitioner do not constitute a contempt of court.

"Third, that the rule nisi, upon which the judgment or order is based, was not founded upon any motion or sworn affidavit.

"Fourth, that the circuit court was not in session in a term thereof at the time the alleged contempt

was committed or at the time of the issuance of the rule, or at the time the judgment order was made and entered."

The statutes of the state contain the following:

"Every court shall have power to punish contempts against it, but the punishment imposed by a justice of the peace shall not exceed twenty dollars' fine or twenty-four hours' imprisonment." Rev. Gen. Stat. 1920, § 2534.

"A refusal to obey any legal order, mandate or decree, made or given by any judge either in term time or in vacation relative to any of the business of said court, after due notice thereof, shall be considered a contempt, and punished accordingly. But nothing said or written, or published, in vacation, to or of any judge, or of any decision made by a judge, shall in any case be construed to be a contempt." Rev. Gen. Stat. 1920, § 2535.

"The judges of the several courts are hereby authorized and empowered to exercise in vacation any jurisdiction or power they are now authorized and empowered to exercise in term time; but when the exercise of such power shall require the intervention of a jury it shall not be exercised except in cases specially provided, unless all parties agree in writing to waive a jury.

"This section shall not be construed to require any judge to go out of the county in which he may be during vacation." Rev. Gen. Stat. 1920, § 2531.

"1. Generally.-The return made to the writ may be amended, and shall not be taken to be conclusive as to the facts stated therein, but it shall be competent for the court, justice or judge before whom such return is made to examine into the cause of the imprisonment or detention, to receive evidence in contradiction of the return, and to determine the same as the very truth of the case shall require.

"2. In Cases of Contempt.When, on the return of the writ, the 31 A.L.R.-78.

cause of detention shall appear to have been a contempt, plainly and specifically charged in the commitment by some court officer or body having authority to commit for the contempt so charged and for the time stated, it shall be the duty of the court or judge before whom the writ is returnable forthwith to remand the prisoner, if the time for detention for contempt has not expired." Rev. Gen. Stat. 1920, § 3575.

Messrs. Frank A. Pettibone and J. B. Hodges, for petitioner:

The judge of the circuit court had no jurisdiction in the contempt proceedings, as the circuit court was not in session in a term of said court, but was in vacation, both at the time the alleged contempt was committed and at the time the rule to show cause was issued.

Ex parte Turner, 73 Fla. 360, L.R.A. 1917D, 355, 74 So. 314; 6 R. C. L. 518; Ex parte Ellis, 37 Tex. Crim. Rep. 539, 66 Am. St. Rep. 831, 40 S. W. 275; Taylor v. Moffatt, 2 Blackf. 305; State ex rel. Mahoney v. McKinnon, 8 Or. 487; Mau v. Stoner, 12 Wyo. 478, 76 Pac. 584.

There must be an affidavit or sworn statement as foundation for constructive contempt.

6 R. C. L. 531; Sona v. Aluminum Castings Co. 131 C. C. A. 232, 214 Fed. 936; York v. State, 89 Ark. 72, 115 S. W. 948; Re Northern, 18 Cal. App. 52, 121 Pac. 1010; Ex parte Rickert, 126 Cal. 244, 58 Pac. 549; Re McCarty, 154 Cal. 534, 98 Pac. 540; Kirby v. Chicago, R. I. & P. R. Co. 51 Colo. 82, 116 Pac. 150; Perry v. Kausz, 167 Ill. App. 250; People v. Gard, 175 Ill. App. 486, affirmed in 259 Ill. 238, 102 N. E. 255, writ of error dismissed in 235 U. S. 691, 59 L. ed. 428, 35 Sup. Ct. Rep. 206; Whittem v. State, 36 Ind. 196; Saunderson v. State, 151 Ind. 550, 52 N. E. 151; Snyder v. State, 151 Ind. 553, 52 N. E. 152; Re Nickell, 47 Kan. 734, 27 Am. St. Rep. 315, 28 Pac. 1076; Re McKenna, 47 Kan. 738, 28 Pac. 1078; Nichols v. Quinn, 94 Kan. 742, 147 Pac. 1103; Re Wood, 82 Mich. 75, 45 N. W. 1113; State ex rel. Gemmell v. Clancy, 24 Mont. 359, 61 Pac. 987; State ex rel. Flynn v. District Ct. 33 Mont. 115, 82 Pac. 450; Le Hane v. State, 48 Neb. 105, 66 N. W. 1017; Ex parte Hedden, 29 Nev. 352, 90 Pac. 737, 13 Ann. Cas. 1173; Rinelander v. Dunham, 2 N. Y.

Civ. Proc. Rep. (Browne) 32; Ackroyd v. Ackroyd, 3 Daly, 38; Ward v. Arenson, 10 Bosw. 589; Bradbury v. Bliss, 23 App. Div. 606, 48 N. Y. Supp. 912; Re Deaton, 105 N. C. 59, 11 S. E. 244; Re Odum, 133 N. C. 250, 45 S. E. 569, 14 Am. Crim. Rep. 296; State v. Thompson, 2 Ohio Dec. Reprint, 30; State v. Kaiser, 20 Or. 50, 8 L.R.A. 584, 23 Pac. 964; State v. Blackwell, 10 S. C. 35; Ex parte Foster, 44 Tex. Crim. Rep. 423, 60 L.R.A. 631, 100 Am. St. Rep. 866, 71 S. W. 593; Ex parte Landry, 65 Tex. Crim. Rep. 440, 144 S. W. 962; Re Coulter, 25 Wash. 526, 65 Pac. 759; Wilson v. Territory, 1 Wyo. 155; Re Toronto Junction, 11 Ont. Week. Rep. 182; Ex parte Duncan, 2 A.L.R. 225, note; Continental Nat. Bldg. & L. Asso. v. Scott, 40 Fla. 386, 24 So. 473.

The alleged conduct of petitioner does not constitute a contempt.

People ex rel. Hackley v. Kelly, 24 N. Y. 74; Re Dill, 32 Kan. 668, 49 Am. Rep. 505, 5 Pac. 39; Ex parte Senior, 37 Fla. 1, 32 L.R.A. 133, 19 So. 652; 6 R. C. L. p. 512, § 25; Dunham v. State, 6 Iowa, 245; Re Breen, 17 L.R.A. (N.S.) 572, note; Cheadle v. State, 110 Ind. 301, 59 Am. Rep. 199, 11 N. E. 426; Ex parte Spooner, 5 N. Y. City Hall Rec. 109.

The recited facts in the judgment order are not conclusive, particularly when such facts are necessary to confer jurisdiction.

Creasy v. Hall, 243 Mo. 679, 41 L.R.A.(N.S.) 478, 148 S. W. 914; Ex parte Duncan, 42 Tex. Crim. Rep. 661, 62 S. W. 758; Ex parte O'Brien, 127 Mo. 489, 30 S. W. 160; Ex parte Pitts, 35 Fla. 149, 17 So. 76.

Mr. Sydney H. Diamond also for petitioner.

Messrs. Blackwell, Donnell, & McCracken, H. J. Quincey, C. E. Chillingworth, Edgar C. Thompson, George W. Coleman, Bert Winters, D. L. Southard, Ray Griffin, Roebuck & Roebuck, John Ziegler, James O. Watson, L. R. Baker, Sidney J. Catts, Jr., C. D. Abbott, and C. L. McCoy for respondent. Whitfield, J., delivered the opinion of the court:

On this writ of habeas corpus the real question presented is whether the circuit judge had authority to commit the petitioner here to imprisonment for contempt upon findings made upon allegations that the petitioner wrote a letter to the

judge and published it to others, and made statements about the judge as set forth in the statement filed with this opinion.

Under the statute quoted in the statement, if "the cause of detention shall appear to have been a contempt, plainly and specifically charged in the commitment by some court officer or body having authority to commit for the contempt so charged and for the time stated, it shall be the duty of the court to remand the prisoner, if the time for detention for contempt has not expired."

The question to be determined is whether the circuit judge had “authority to commit for the contempt charged and for the time stated." If the judge had authority to adjudge imprisonment for the contempt charged, and due process of law was observed in the proceedings, and the imprisonment is authorized and not excessive, the petitioner should be remanded. If the conduct that is charged does not constitute a contempt for which the prisonment, an appropriate order judge is authorized to adjudge im

should be made herein.

The circuit judge received the letter written to him by the municipal judge; therefore, he had knowledge of it, and the charge as to the writing and sending of the letter needed no supporting affidavit. But obviously the circuit judge had only information, and no personal knowledge, of the alleged publication of the letter to others, or of the statements alleged to have been made by the author of the letter to those to whom the letter was published; therefore, the charges in the rule as to such matters of which the circuit judge had information, but not personal knowledge, should, under the circumstances, have been supported by affidavits of those who had personal knowledge of the alleged facts. See 4 Bl. Com. p. 287; Ex parte Duncan, 2 A.L.R. 222 and note (78 Tex. Crim. Rep. 447, 182 S. W. 313); 13 C. J. 64.

But the motion to quash went to