b. COURTS CREATED BY CONSTITUTION. When, however, the court is a creature of the constitution, the better opinion seems to be that it cannot, by legislative enactment, be shorn of its inherent right to punish for contempts; nor can the legislature abridge that right, although it may regulate its exercise. The constitution may confer on the legislature the power to abridge the right of courts created by the constitution to punish for contempts, but in only a very few states of the Union has that been done.3 IV. TRIAL COURT EXCLUSIVE JUDGE OF CONTEMPTS tent of the punishment which may be imposed. See the various statutes. 1. Constitutional Courts. State v. Morrill, 16 Ark. 385; Matter of Shortridge. 99 Cal. 526, 37 Ain. St. Rep. 78; People v. Stapleton, 18 Colo. 568; Holman v. State, 105 Ind. 513; Cheadle v. State, 110 Ind. 301, 59 Am. Rep. 199; Arnold v. Com., 80 Ky. 300, 44 Am. Rep. 480; In re Chadwick, (Mich. 1896) 67 N. W. Rep. 1071; Hawes v. State, 46 Neb. 150; Hale v. State, 55 Ohio St. 210. A statutory enumeration of acts which shall constitute_contempts does not deprive the Supreme Court of jurisdiction over other contempts. The court is governed in that respect by the rules of the common law. People v. Stapleton, 18 Colo. 568. The power to punish for a contempt, as well as to determine whether a contempt has been committed, is inherent in all courts of superior jurisdiction; the legislature cannot prevent the one nor abridge the other. Cheadle 7. State, 110 Ind. 301, 59 Am. Rep. 199. A number of cases have arisen in this country relating to the power to punish under legislative limitation. In the few cases where the limitations were sought to be applied to courts created by the constitution, the courts have, doubtless through feelings of delicacy, generally found a way to avoid directly passing on their own jurisdiction to punish for a contempt committed to it, in this regard. Thus in In re Woolley, II Bush (Ky.) 95, where the contempt was to the Court of Appeals, the creation of the constitution, and it was claimed that the court had no power to punish a contempt except by an imprisonment not exceeding thirty hours, and by a fine not exceeding thirty dollars, unless the person was tried by a jury, the court in part said: "We will not in this case determine whether, under the constitution, the legislative department, under the guise of regulating proceedings in cases of contempts, can take from the judiciary the power to preserve its independence and equality by protecting itself against insults and indignities. * It remains an open question in this state, and we intend in this case to so leave it." * * 1. General Rule. At The Supreme Court of the United States, in an opinion by Justice Field, intimates that an Act of Congress limiting the power to punish for contempt, which in terms applied to all federal courts, could not limit the authority of the Supreme Court. The question before the court then related solely to the effect of the Act on a District Court created by Congress. Exp. Robinson, 19 Wall. (U. S.) 505. North Carolina. But see Matter of Oldham, 89 N. Car. 23, 45 Am. Rep. 673. In that case the court was not a creature of the constitution, but the constitution of the state provides that the legislature cannot deprive the judicial department of any power which rightly pertains to it. It was held that such provision was not infringed by the legislature in specifying what acts shall constitute contempts, and if a person is guilty of an act which is a contempt at common law, but not enumerated in the act, he cannot be punished for a contempt. 2. Regulation of Exercise of Power. - State v. Morrill, 16 Ark. 384; Middlebrook v. State, 43 Conn. 257, 21 Am. Rep. 650; Wyatt v. People, 17 Colo. 261; People v. Wilson, 64 Ill. 195, 16 Am. Rep. 528; Worland v. State, 82 Ind. 49; Cheadle v. State, 110 Ind. 301, 59 Am. Rep. 199; Holman v. State, 105 Ind. 513; Arnold v. Com., 80 Ky. 300, 44 Am. Rep. 480. In Wyatt v. People, 17 Colo. 261, the court said: Though the legislature cannot take away from courts created by the constitution the power to punish contempts, reasonable regulations by that body touching the exercise of this power will be regarded as binding." 3. Constitutional Limitations Georgia and Louisiana. The constitutions of Georgia and Louisiana provide that the power of the court to punish for contempts may be limited by the legislature. Ga. Const. art.1, § 1, par. 20; La. Const. 166. Where a person who was not a party to a judgment under which land was sold by a sheriff purchased the same at public outcry, and the sheriff made him a deed and put him in possession, such sale cannot be set aside and the deed canceled, by a motion or rule to show cause, on the ground that the purchaser and the sheriff fraudulently colluded at the sale, so that the land sold for an insignificant sum compared with its value. Under the constitution and laws of Georgia contempt of court in such case relates only to the officer in his official transactions, and to the disobedience or resistance by any person of any lawful writ, process, order, rule, decree, or command of court. Under 5009 and 4711 of the code the court may summarily punish the sheriff for contempt, but not the purchaser by annulling the deed. Harrell v. Word, 54 Ga. 650. Volume VII. Common Law every court of competent jurisdiction was the exclusive judge of contempts committed in its presence or against its process, and the exercise of its power to punish therefor could neither be raised on error1 nor assailed collaterally by a resort to the writ of habeas corpus. When Appeal Lies. -This, in the absence of a statute granting the right of appeal, is still the prevailing rule, though in a few states the appellate courts will entertain an appeal from a judgment of conviction of contempt, whether civil or criminal.3 In other states an appeal lies only when the contempt is 1. Trial Court the Exclusive Judge Commonlaw Rule- United States. - King v. Wooten, 54 Fed. Rep. 612; In re Chetwood, 165 U. S. 443; Exp. Kearney, 7 Wheat. (U. S.) 40; In re Debs, 158 U. S. 564; In re McDonald, 1 Lowell (U. S.) 100. Alabama. - Hogan v. Alston, 9 Ala. 627; Gates v. M'Daniel, 4 Stew. & P. (Ala.) 69; Easton v. State, 39 Ala. 551, 87 Am. Dec. 49; Wyatt v. Magee, 3 Ala. 94; Exp. Hardy, 68 Ala. 305. California. - Ex p. Smith, 53 Cal. 204; Tyler. Connolly, 65 Cal. 28; Larrabee z. Selby, 52 Cal. 506; Ex p. Clancy, 90 Cal. 553. Colorado. - Bloom v. People, 23 Colo. 416; Teller v. People, 7 Colo. 451. Florida. Illinois. - Exp. Edwards, II Fla. 174. - Clark v. People, I Ill. 340, 12 Am. Dec. 177. - Craw v. State, 24 Tex. 12. People v. Owens, 8 Utah 20. Vilas v. Burton, 27 Vt. 56. Utah. Vermont. Canadian Rule. While a power resides in any court or judge, whether it be inherent, or by statute conferred on an inferior court, to punish contempts in its presence, it is the power or privilege of such court or judge to determine the facts, and the truth of those facts will not be reviewed by a higher tribunal. In re Clarke, 7 U. C. Q. B. 223. In the Case of an Inferior Court, the superior court will intervene only for the purpose of preventing an usurpation of jurisdiction. Ex p. Lees, 24 U. C. C. P. 214; In re Clarke, 7 U. C. Q. B. 223. 2. United States. - Ex p. Watkins, 3 Pet. (U. S.) 193; Ex p. Yarbrough, 110 U. S. 651; Exp. Terry, 128 U. S. 289; U. S. v. Pridgeon, 153 U. S. 48; In re Swan, 150 U. S. 637. Alabama. Ex p. Hardy, 68 Ala. 305. California. - Ex p. Acock, 84 Cal. 51; Matter of Cohen, 5 Cal. 494; Ex p. Perkins, 18 Cal. 60; Ex p. Cottrell, 59 Cal. 417; Ex p. Smith, 53 Cal. 204. Florida. - Ex p. Edwards, 11 Fla. 174. Exp. Goodin, 67 Mo. 637; Ex p. McKee, 18 Mo. 599. New Hampshire. 540. State v. Towle, 42 N. H. New York. - People v. Spalding, 10 Paige (N. Y.) 284, affirmed 7 Hill (N. Y.) 301; People v. New York, 29 Barb. (N. Y.) 622; People v. Cassels, 5 Hill (N. Y.) 164; Kahn's Case, II Abb. Pr. (N. Y. Super. Ct.) 147; People v. Fancher, 2 Hun (N. Y.) 226; Matter of Percy, 2 Daly (N. Y.) 530; Kearney's Case, 13 Abb. Pr. (N. Y. Supreme Ct.) 459; Wicker v. Dresser, 13 How. Pr. (N. Y. Supreme Ct.) 331. Texas. - Jordan v. State, 14 Tex. 436. Utah. Matter of Whetstone, 9 Utah 156; In re Harris, 4 Utah 5. Vermont. In re Cooper, 32 Vt. 253. Wisconsin. In re Perry, 30 Wis. 268; Matter of Blair, 4 Wis. 522; In re Milburn, 59 Wis. 24; In re Rosenberg, 90 Wis. 581. Jurisdiction of Committing Court. The court, however, must have jurisdiction not only over the person and the matter, and the organic power to render the judgment, but the act or default charged must in law constitute a contempt, else the judgment of the committing court will be a nullity. Being such it is usually so treated. See infra, Jurisdiction of Court and Authority to Make Order. Where the court lacks jurisdiction, its judgment may in California be reviewed by certiorari, or by appeal, as well as on habeas corpus. Ex p. Hollis, 59 Cal. 405. not in facie curia,1 and in others the test seems to be whether the punishment be for a criminal or civil contempt. In the latter case it may be reviewed in the appellate court.2 2. Statutes Authorizing Appeals. In most states where there has been an abrogation or modification of the common-law rule in this regard, it has been brought about through legislative action. The circumstances under which judgments in contempt cases may be reviewed by appeal will be found in the notes.3 1. When Contempt Not In Facie Curiæ - Connecticut. - Welch v. Barber, 52 Conn. 147, 52 Am. Rep. 567. two kinds. Illinois. Contempts are of When the proceedings are instituted for the purpose of punishing for misconduct in the presence of the court, or in disrespect of its authority or dignity, the proceeding is criminal; when for the purpose of affording relief between the parties to a cause in chancery, it is civil, and in such case an appeal will lie from an order of the court, either in imposing a fine or in discharging the defendant. People v. Diedrich, 141 Ill. 665. Where the contempt is criminal and not in the presence of the court, an appeal lies. Stuart v. People, 4 Ill. 396. But not where it is in the presence of the court, even where the court is one of inferior jurisdiction, as that of a magistrate. Clark v. People, 1 Ill. 340, 12 Am. Dec. 177. Maine. In this state exceptions to an order finding a person guilty of contempt in conveying real estate while a bill was pending in relation to the title thereto, were allowed by the judge presiding at the term and passed on subsequently by the full bench. See Snowman v. Harford, 57 Me. 398. North Carolina. Matter of Daves, 81 N. Car. 72; Matter of Walker, 82 N. Car. 95; In re Deaton, 105 N. Car. 59. See also State v. Woodfin, 5 Ired. L. (N. Car.) 199, 42 Am. Dec. 161, in which the court held that there could be no revision by appeal or certiorari of the judgment of a court of record imposing a punishment for a contempt committed in facie curia. The court expressed no opinion as to whether an appeal would be entertained when the contempt was not in facie curia. Tennessee. - Hundhausen v. U. S. Marine F. Ins. Co., 5 Heisk. (Tenn.) 702, which overrules, though not in terms, State v. Galloway, 5 Coldw. (Tenn.) 326, 98 Am. Dec. 404, where the court would not entertain an appeal from a judgment of conviction for contempt in publishing testimony in a newspaper. 2. United States. - The Supreme Court of the United States, on January 17, 1895, refused a writ of error to review the judgment of contempt pronounced by the trial court in the case of U. S. v. Debs, 64 Fed. Rep. 724. In that case the petitioners for a writ of error con tended that they had done no act which came within the prohibition of the injunction. These questions, so far as they related to one of the petitioners, the Supreme Court afterwards held, on two hearings of a writ of habeas corpus, were not open to review. See In re Debs, 158 U. S. 565. Connecticut. 496. Baldwin v. Miles, 58 Conn. Georgia. - Howard v. Durand, 36 Ga. 346, 91 Am. Dec. 767. Kentucky. Newport v. Newport Light Co., 92 Ky. 445, limiting the general doctrine as laid down in Johnston v. Com., 1 Bibb (Ky.) 598. Michigan. An order adjudging a party guilty of contempt for the nonpayment of alimony, and ordering him to stand committed, is an appealable final order. Matter of Bissell, 40 Mich. 63; Ross v. Ross, 47 Mich. 185; Haines v. Haines, 35 Mich. 138. 3. Indiana. Worland v. State, 82 Ind. 49; Whittem v. State, 36 Ind. 196; Rev. Stat. 1881, $$ 1005-1013. In this state all cases of indirect contempts may be reviewed by appeal. New Jersey. In this state commitments for contempt in all inferior courts may be reviewed by appeal. P. L. 1884, p. 219. New York. An order adjudging a person guilty of the violation of an injunction is held to be a special civil proceeding, and therefore appealable under SS 1356 and 1357 of the Code of Civil Procedure. People v. Dwyer, 90 N. Y. 402; In re De Long, 25 Civ. Pro. Rep. (N. Y. Supreme Ct.) 363. The And an appeal is allowable from an order finding a defendant guilty of a contempt of court in supplementary proceedings. right of the party affected by such order to appeal is governed by the provisions of the code authorizing supplementary proceedings, and not by the provisions relating to proceedings for the punishment of contempt. Forbes v. Willard, 37 How. Pr. (N. Y. Supreme Ct.) 193. South Dakota. · Convictions for criminal contempts are appealable under Comp. Laws, $7499 et seq. State v. Knight, 3 S. Dak. 509, 44 Am. St. Rep. 809. Utah. - Where the contempt is civil, and the punishment is by fine to make good to his antagonist damages which have resulted to him from the contemnor's noncompliance, such order is appealable under the statute relating to appeals in special proceedings. Exp. Whitmore, 9 Utah 441. Virginia. — In Virginia the judgment of a court committing for contempt may, by statute, be reviewed by writ of error unless it be a proceeding "to compel the performance of any decree or judgment, or to enforce obedience V. JURISDICTION OF COURT AND AUTHORITY TO MAKE ORDER- 1. In General. The jurisdiction of the court is, of course, essential to the validity of the judgment of conviction. In the absence of jurisdiction the judgment is a nullity; and if the punishment be by imprisonment, the contemnor will be released on the hearing of a writ of habeas corpus.1 2. What Constitutes Jurisdiction. There has been some conflict of authority as to the scope to be attached to the word "jurisdiction." Some of the older authorities regarded jurisdiction of the matter and the person sufficient to give the court jurisdiction to pronounce a judgment which could not be successfully assailed by this writ. The rule now supported by high and abundant authority and excellent reason is, that the court must not only have jurisdiction over the person and the matter, but authority to render the particular judgment. The judgment is not conclusive upon the question of the authority of the court to render it. That, as well as any other matter which would render the proceedings void, is open to inquiry.3 thereto." Code of 1887, § 4053. See Wells v. Com., 21 Gratt. (Va.) 500; Stokeley v. Com., I Va. Cas. 330; Com. v. Dandridge, 2 Va. Cas. 408. West Virginia. - In this state a judgment committing for a contempt, whether in or out of the presence of the court, may be reviewed by writ of error. Acts of 1882, c. 128, 4; State v. Miller, 23 W. Va. 801. Wisconsin. All commitments for criminal Alabama. Ex p. Hardy, 68 Ala. 303. Colorado. - Matter of Hall, 10 Mich. 210. Pennsylvania. - Com. v. Perkins, 124 Pa. South Carolina. — James v. Smith, 2 S. Car. 183. Vermont. In re Leach, 51 Vt. 630. Wisconsin. - Matter of Blair, 4 Wis. 522. 2. Former View Jurisdiction of Person and Subject-Matter Sufficient. The leading case in this country laying down this doctrine is the case of Exp. Kearney, 7 Wheat. (U. S.) 40, in which the opinion was delivered by Mr. Jus tice Story. In that case the petitioner had been committed for contempt for refusing to answer a question which tended to criminate him. Irrespective of whether the refusal of the witness to answer the question constituted contempt of court, it was held that on applica tion for a writ of habeas corpus, or on appeal, the only question which could be considered was the jurisdiction of the court over the party and the subject-matter, and that the jurisdiction to render the judgment in question could not be inquired into. See also Williamson's Case, 26 Pa. St. 9, 67 Am. Dec. 374; Ex p. Kellogg, 6 Vt. 509; State v. Towle, 42 N. H. 541, for general expressions of this old doctrine. 3. Jurisdiction to Render Particular Judgment. - People v. Liscomb, 60 N. Y. 559, 19 Am. Rep. 211; People v. Oyer & T. Ct., 101 N. Y. 245, 54 Am. Rep. 691; Ex p. Degener, 30 Tex. App. 566; Holman . Austin, 34 Tex. 668; Ex p. Fisk, 113 U. S. 713. Jurisdiction of the person and of the subjectmatter are not alone conclusive, but the jurisdiction of the court to render the particular judgment is a proper subject of inquiry; and if upon the whole record it appears that the judgment was unwarranted by law, the contemnor will be released on the hearing of a writ of habeas corpus. People v. Liscomb, 65 N. Y. 559, 19 Am. Rep. 211. Jurisdiction is of two kinds: (1) The power to hear and determine the particular matter; (2) the power to render the particular judgment which was rendered. If the commitment be against law, as for a matter for which by law no man ought to be punished, the court will discharge the contemnor on the hearing of a writ of habeas corpus. Again, if the court had no power to render the judgment, the writ of habeas corpus will lie. The party is entitled to the writ, not merely where the court is without jurisdiction of the cause, but where it has no authority or power to condemn the prisoner. Where, therefore, a grand jury of one court, acting in good faith under their supposed authority conferred by law, issued an attachment for the judge of another court, without any direction as to the manner or time of serving the same, and the bailiff of the grand jury served it while the judge was upon the bench holding court, but in a quiet, respectful manner and without interrupting the business of the court, it was held that this did not constitute contempt on the part of the grand jury, and a judgment so holding was unauthorized and void. Ex p. Degener, 30 Tex. App. 566. 3. Instances of Jurisdictional Defects. Such want of jurisdiction to render the particular judgment may arise either from a constitutional prohibition against the infliction of such punishment in such case, or from the infliction of a punishment in excess of that allowed by law, or the commitment may be for an indefinite time, or it may arise from the punishment as a contempt of an act In a late work on jurisdiction the author, in discussing the three essential elements necessary to render a conviction valid, says: "These are, that the court must have jurisdiction over the subject-matter, the person of the defendant, and authority to render the particular judgment. If either of these elements is lacking the judgment is fatally defective. Brown on Jurisdiction, § 110. 1. See infra, Imprisonment to Enforce Payment of Money Demands-Constitutional Prohibitions against Imprisonment for Debt; and Contempt by Witnesses - Self Crimination. Punishment Cruel and Unusual. - Where a person is confined in jail for the purpose of coercing the payment of a fine for contempt of court, he cannot be put at hard labor on the streets, as is provided may be done with persons who may be imprisoned for a punishment. Such punishment is cruel and unusual, and therefore unconstitutional. In re Fil Ki, 80 Cal. 201. 2. Imposition of Punishment Not Allowed by Law. Exp. Edwards, 11 Fla. 174; Haines v. Haines, 35 Mich. 138; People v. Liscomb, 60 N. Y. 559, 19 Am. Rep. 211; Matter of Patterson, 99 N. Car. 407; Matter of Walker, 82 N. Car. 95; Com. v. Newton, I Grant's Cas. (Pa.) 453; In re Pierce, 44 Wis. 411. A statute providing expressly that when the court, in contempt proceedings, orders the payment of money to the injured party, this shall stand instead of a fine, the imposition of a criminal fine, in addition to the requirement of payment to the party, is erroneous and unwarranted. Haines v. Haines, 35 Mich. 138. Under the Wisconsin statute the utmost punishment for contempt is six months' imprisonment, and where the court imposed a fine and committed the contemnor until paid, it was held that such imprisonment was illegal, and that the contemnor was entitled to be released on application for a writ of habeas corpus. In re Pierce, 44 Wis. 411. Under the Pennsylvania statute a witness in contempt for not obeying a subpoena could only be punished by fine. The punishment of a witness by suspending him from his professional functions as a lawyer was held to be illegal. Com. v. Newton, i Grant's Cas. (Pa.) 453. Judgment of Lower Court Corrected and Prisoner Remanded. Where a statute provided that when there was a committal for the nonpayment of a fine for contempt, such imprisonment should not exceed one day for every three and one-third dollars of the fine, and where there was a committal for an indefinite time, the Supreme Court modified the judgment so as to conform to the law, and remanded the prisoner. State v. Myers, 44 Iowa 580. 3. Order of Commitment for Indefinite Period. Yoxley's Case, I Salk. 351; Rex v. James, 5 B. & Ald. 894, 7 E. C. L. 292; Cromartie v. Bladen, 85 N. Car. 211; Matter of Hammel, 9 R. I. 248; In re Leach, 51 Vt. 630; People v. Pirfenbrink, 96 Ill. 68; State v. Myers, 44 Iowa 580; Bickley v. Com., 2 J. J. Marsh. (Ky.) 575; Ex p. Alexander, 2 Am. L. Reg. 44; Matter of Watson, 3 Lans. (N. Y.) 408; Com. v. Roberts, 4 Pa. L. J. 126. Thus where an order and mittimus for the imprisonment of a person was not for any definite period, it was held that the order and process was void, and the prisoner was discharged on habeas corpus. People v. Pirfenbrink, 96 Ill. 68. A person who is summoned before a commissioner appointed by a court of record to take testimony, or before a town council authorized by law to take testimony, may be committed to prison for contempt in refusing to testify, but if the commitment be indefinite as to time the prisoner is entitled to be discharged under a writ of habeas corpus. Com. 2. Roberts, 4 Pa. L. J. 126; Matter of Hammel, 9 R. I. 248. A court cannot punish for contempt by fine as for criminal offense, and then commit until the fine is paid or until the further orders of the court. Persons so committed will be discharged on application for a writ of habeas corpus. Matter of Watson, 3 Lans. (N. Y.) 408, affirmed in 5 Lans. (N. Y.) 466. In Ex p. Alexander, 2 Am. L. Reg. 44, a commitment for a criminal contempt "until the further order of the court was held void. Where Mittimus and Order Fail to Show Nature of Contempt. It was held in In re Leach, 51 Vt. 630, where a person was committed to jail for contempt of court in failing to pay money by order of the court, that if it was imprisonment as punishment for a criminal contempt, it was void as being without limit, and if it was imprisonment until the contemnor purged himself by payment of the money, he was held in a matter in which he had had no opportunity to be heard. Where Not Void. If the order of commitment be for the purpose of coercing the payment of money, or the performance of some act adjudged to be within the power of the contemnor, the commitment need not limit the duration of the imprisonment. Matter of Allen, 13 Blatchf. (U. S.) 271; Ex p. Crittenden, 62 Cal. 534; State v. Tipton, 1 Blackf. (Ind.) 166; Kernodle v. Cason, 25 Ind. 362; Chapel v. Hull, 60 Mich. 167; Jernee v. Jernee, 54 N. J. Eq. 657; Forrest v. Price, 52 N. J. Eq. 16; People v. Tamsen, 17 Misc. Rep. (N. Y. Supreme Ct.) 212; Cromartie v. Bladen, 85 N. Car. 211; State v. Irwin, 30 W. Va. 405. It must, however, specify the amount to be paid or the act to be performed, so that the contemnor may purge himself without further application for instructions. Thus where a party is committed by an order in equity for the nonpayment of alimony, a fine, and costs, the amounts must be specified in the commitment. Jernee v. Jernee, 54 N. J. Eq. 657. |