power by statute,40 but such statutes will be strictly construed.41 An administrative board which is not designed to exercise judicial functions cannot be invested with this power even by statute.12 The Common Council of a city has no power to punish for contempt and a statute undertaking to vest it with such power is unconstititional and void. And a statute purporting to give the Prosecuting Attorney of a county the power to punish for contempt is unconstitutional in that respect. A court of Common Pleas, whose jurisdiction is limited to civil cases, has inherent power to punish for contempt.45

43

B. Superior Courts.-All constitutional courts of record have inherent power to punish for contempt, independent of statutes.40 This power springs from the nature and constitution of a court and is of the very essence of its existence. It is a power as old as the courts themselves. It can neither be destroyed nor materially abridged by the legislative body. It has been held that a referee appointed by a superior court has power to punish for contempt. but a court commissioner has not this power at common law.49 Nor can the power to punish for contempt be delegated to a commissioner by a circuit court nor its

(40) Ex parte Button, 83 Neb. 636, 120 N. W. 203, 23 L. R. A. (N. S.) 1173.

(41) Ex parte Mallinkrondt, 20 Mo. 493; In re Schoepf. 70 Oh. St. 276; In re Huron, 58 Kan. 152, 48 Pac. 574, 36 L. R. A. 822, 62 Am. St. Rep. 614.

(42) State v. Ryan, 182 Mo. 349, 81 S. W. 435. (43) Whitcomb's Case, 120 Mass. 118, 21 Am. Rep. 302.

(44) In re Sims, 54 Kan. 1, 45 Am. St. Rep. 261.

(45) Middlebrook v. State, 43 Conn. 257, 21 Am. Rep. 650.

(46) State v. Shepherd, 177 Mo. 205, 76 S. W. 79. 99 Am. St. Rep. 624; In re Rosenburg, 90 Wis. 586, 63 N. W. 1065; In re Shortridge, 99 Cal. 532, 37 Am. St. Rep. 78; Hale v. State, 55 Oh. St. 210, 60 Am. St. Rep. 691; Holman v. State, 105 Ind. 513, 5 N. E. 556; People v. Wilson, 64 Ill. 196, 16 Am. Rep. 528; Burke v. Territory, 2 Okla. 499, 37 Pac. 829; People v. Stapleton, 18 Colo. 568.

(47) Railroad V. Gildersleeve, 219 Mo. 170, 118 S. W. 86; State v. Morrell, 16 Ark. 388; Mahoney v. State, 33 Ind. App. 655, 72 N. E. 151; Ex parte Schenck, 65 N. C. 366; Ex parte McCown, 139 N. C. 95, 51 S. E. 957, 2 L. R. A. (N. S.) 603; Carter v. Com., 96 Va. 791, 32 S. E. 780, 45 L. R. A. 310; Smith v. Speed, 11 Okla. 95, 66 Pac. 511, 55 L. R. A. 402.

exercise by such commissioner be ratified by the court so as to be valid.50

2. Whether Contempt in Law.-There have not been many cases in which the petitioner has been discharged because the acts charged could not, in the opinion of the revisory court, under any circumstances, amount to contempt as a matter of law. Probably this is largely due to the fact that courts seldom undertake to punish as for contempt acts which were necessarily indifferent and to which no degree of delinquency could be attached. To be sure,

there are dicta in some of the cases which have gone so far upon the strict rule, above discussed, as to say that the revisory court can not rejudge the contempt-that is.. when the lower court has denominated certain conduct as a contempt the revisory court is obliged to regard the matter as finally adjudicated. But it would seem on principle that the committing court has no authority to make any given conduct a contempt by its merely saying so, that is to say, every court is necesarily limited by the legal signification and definition of the word contempt, and that a judgment should be open to collateral attack where the acts are meritorous or are such that no degree of delinquency can be attached to them.

51

So in a well-known English case, decided in the seventeenth century, a jury who had been committed as for contempt for returning a verdict "against full evidence and the direction of the court in the matter of law" were discharged on habeas corpus by the court of King's Bench. In a Kansas case the petitioner was discharged where the committment showed that the alleged contempt consisted in the petitioner's merely failing to appear upon a return. day. And in a Texas case it was held that improper comment by a newspaper about the court with reference to a case not then pending in court could not as a matter of law be a contempt, and the petitioner should be discharged. Statutes in some states provide that the revisory court may on habeas corpus rejudge whether the act charged could, as a matter of law, amount to contempt.

the question of whether the disobedience of the order amounts to a contempt or not depends upon whether the failure was willful or not, the judgment of conviction should find and recite that the disobedience is from willfulness and not from a bona fide inability and a recital or finding of such fact is conclusive on collateral attack, that is, the petitioner cannot urge, on habeas corpus, that the committing court erred in this finding.70

72

The constitutional provision concerning imprisonment for debt applies in the case of a commitment for disobedience of an order to pay an ordinary money judgment." 5. Power to Make the Particular Order. (a) Jurisdiction in the Main Case. If a court for any reason is trying a case when that court has no jurisdiction its judgment is, of course, void and so is every order made during the proceeding, and one committed as for contempt in disobeying such orders will be discharged on habeas corpus. So in a New York case, the petitioner, who had been committed for contumacious behavior as a witness, was discharged upon his showing that the committing court had no jurisdiction in the main case for the reason that the crime for which the defendant in the main case was being tried was committed outside the territorial jurisdiction of the trial court. In a recent Nevada case, it appears that a judge of a certain judicial district, while sitting as the court in L. county, entered an order transferring a divorce suit from another county in his district, with the consent of the parties, to himself as the court in L. county. In the case then during its progress, one of the parties was committed for contempt in disobeying an order made during the trial. The party was discharged on a writ of habeas corpus because the committing court. was without jurisdiction in the main case— since jurisdiction of subject matter (the divorce case in this instance) cannot be acquired by consent of the parties.

It has been held that a judgment will be

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also

held void on collateral attack where the statute under which the committing court was organized is unconstitutional; when it appear that the committing court was sitting at a time or place not authorized by law. Though the title to office of a de jure or a de facto court will not be tried on habeas corpus, the petitioner will be discharged where the incumbent who committed the petitioner is a mere usurper." A judgment, of conviction and commitment for contempt rendered by a judge during vacation of the court is void and the petitioner will be discharged on habeas corpus.s

(b) Intrinsic Illegality of the Order.Besides being void for want of jurisdiction in the main case, a particular order may be void because of the nature of the thing the party or witness is ordered to do; e. g., a court has not lawful authority or power to order a party or a witness to do a thing which is expressly forbidden by law or which is by law saved as an inviolable privilege. A few cases to illustrate: In a Missouri case a witness was ordered by the grand jury to produce and open a ballotbox which he had in his charge as a clerk of an election. Having been committed for refusing to obey the order, the petitioner was discharged on habeas corpus because the grand jury had no authority to make the order it being expressly provided by statute that no clerk of an election should open a ballot-box except under specified circumstances. In a California case. a telegraph operator was committed for his refusal to produce all the telegrams received at his office during a certain period of time, as he was ordered to do. He was discharged on habeas corpus because the order was held to be so broad as to violate the constitutional provision concerning searches and seizures. On the same ground the Illinois courts discharged a petitioner who had been ordered to produce and de

80

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posit with the clerk of the court for the inspection of the adverse party, all of his books of account. In a Texas case, 2 the petitioner, who had been committed for disobeying an order to refrain from publishing any account of a trial, then pending, until after its termination, was discharged upon the ground that the order was repugnant to the constitutional provision preserving the liberty of the press.

Article Nine of the Amendments of the Constitution of the United States provides that no person shall be compelled in any criminal case to be a witness against himself. This has been construed to mean that no person shall be compelled to criminate himself in any case, civil or criminal. The several states have a similar provision in their constitutions. So it is now universally held that if, in the opinion of the revisory court, one has been committed for refusal to answer a question as a witness, when the answer would tend to criminate the witness, he will be discharged on habeas corpus because the court acted without legal authority in ordering the witness to answer and its judgment of conviction for contempt therefore void,84

In Indiana it is held that a court cannot commit an expert witness who refuses to testify in a case calling for an opinion based on his expert knowledge unless suitable compensation, more than that of the ordinary witness, be previously provided: that his knowledge is property which cannot be taken without due compensation, but the weight of authority seems to be contrary to the views of the Indiana court on this point.86

6. Validity and Sufficiency of Commit

(82)

Ex parte Foster, 44 Tex. Cr. Rep. 433, 71 S. W. 593, 100 Am. St. Rep. 866.

(83) Counselman v. Hitchcock, 142 U. S. 547. (84) Ex parte Irvine, 74 Fed. 954; Ex parte Carter, 166 Mo. 604, 66 S. W. 540; State v. Lehman, 175 Mo. 619, 75 S. W. 139; Ex parte Senior, 37 Fla. 1, 19 So. 652, 32 L. R. A. 135; Ex parte Miskimus, 8 Wyo. 392, 58 Pac. 411, 49 L. R. A. 831; Ex parte Gould, 99 Cal. 360, 33 Pac. 1112, 21 L. R. A. 751, 37 Am. St. Rep. 57; Ex parte Park, 37 Tex. Cr. Rep. 590, 40 S. W. 300, 66 Am. St. Rep. 835; In re Nickell, 47 Kan. 734, 28 Pac. 1076, 27 Am. St. Rep. 315; Counselman v. Hitchcock, 142 U. S. 547.

(85) Buckman v. State, 59 Ind. 1, 26 Am. Rep. 75.

(86) Dixon v. People, 168 111. 179, 48 N. E. 108, 39 L. R. A. 116; Ex parte Dement, 53 Ala. 389, 25 Am. Rep. 611; State v. Teipner, 36 Minn. 535; Flinn v. Prairie County, 60 Ark. 204, 29 S. W. 459, 46 Am. St. Rep. 168.

ment. (a) Validity on Face of.-Aside fromi matters going to the jurisdiction of the committing court-which we have now concluded the commitment itself will be examined by the revisory court for fatal defects, for the commitment must, of course, be fair upon its face but this topic has no peculiar importance as applied to review of contempt proceedings for the requisites of a commitment in this respect are the same whether the commitment be for contempt or as execution in a strictly criminal case. In all cases the commitment must have the color of regularity and legality. For instance, it must be signed by the court, and addressed to the proper officer.ss It should properly identify the person to be committed, recite generally, at least, the cause of commitment.99 and specify the length of the term of imprison

ment."1

89

(b) Sufficiency of. (1) At Common Law. At common law a commitment setting out generally that the petitioner had been convicted of and committed for contempt of the committing court was sufficient. It was not necessary that the contempt be specifically and particularly set out.92

(2) Under Statutes.-In most states it is required by statute that the acts constituting the contempt shall be specifically and particularly set out.93 So in a recent Missouri case it was held that a commitment setting out that the petitioner had “treated the court disrespectfully in refusing to answer proper and legal questions; that he willfully and intentionally refused to answer such questions after the court had decided such questions to be proper and legal." etc., was insufficient because the contempt was not "plainly charged" as required by statute. and that the questions themselves should have been set out in the commitment. The Missouri court relied upon a similar case in the California court.95 It may be re

(87) (88) (89) Ex parte Dobson, 31 Cal. 497. (90) In re Morton, 10 Mich. 208. (91) Kinney v. State, 5 R. I. 385. (92) In re Fernandez, 10 C. B. 3; Ex parte Nugent, 5 Ired. 149.

State v. Drake, 36 Me. 366.
4 Black. Com. 291.

(93) State V. Dougherty, 32 Iowa 261; Ex parte Rowe, 7 Cal. 181; Stewart v. State, 140 Ind. 7, 39 N. E. 508; Rev. Statutes, Mo., 1909, Secs. 2475, 3881 and 3884; Comp. Laws. Okla., 1909. Secs. 2330 and 6472.

(94) In re Shull, 221 Mo. 628, 121 S. W. 10. (95) Ex parte Shortridge, 5 Cal. App. 371, 90 Pac. 478, 37 Am. St. Rep. 78.