due administration of justice. The exercise of this power is as old as the English history itself, and has always been regarded as a necessary incident and attribute of courts. Being a common-law power, inherent in all courts, the moment the courts of the United States were called into existence they became vested with it. It is a power coming to us from the common law, and, so far as we know, has been universally admitted and recognized. 4 Lewis's Bl. Com. § 286, p. 1675; Oswald, Contempt, Canadian ed. pp. 1-3; 6 R. C. L. 489; State v. Morrill, 16 Ark. 390; State ex rel. Rodd v. Verage, 177 Wis. 295, 23 A.L.R. 491, 187 N. W. 830; and People ex rel. Brundage v. Peters, 305 Ill. 223, 26 A.L.R. 16, 137 N. E. 118. A splendid review of the origin and history of such power, supported by wealth of authority, as well as its universal recognition, both at common law, and in the United States, may be found in State ex rel. Crow v. Shepherd, 177 Mo. 205, 99 Am. St. Rep. 624, 76 S. W. 79, to which the bar is referred.

Such contempts are divided into two classes, civil and criminal, and it naturally becomes -classification. necessary for us to determine at the outset into which class these cases fall. Much has been said by distinguished jurists concerning the distinction between the two, and many rules for such determination have been evolved, from which it appears that the line of demarcation is often and frequently narrow, shadowy, indistinct, and difficult to ascertain, with the result that it is not always easy to classify a particular act as belonging to either one of the two classes. In fact, it may sometimes partake of

the characteristics of both. Without launching into any prolix discussion upon the subject, or attempting to resort to any superfine distinctions, we think it may be said generally that "civil contempt" includes all those proceedings in the nature of contempt, instituted to preserve and enforce the rights of

private parties to suits, and to compel obedience to the orders, writs, mandates, and decrees which are made to enforce the rights as well as to administer the remedies to which such parties are entitled; the offense is committed when a person fails or refuses to do something which he has been ordered to do for the benefit of an opposite party litigant, the punishment for which is imposed to coerce the performance of such act. Such punishment is remedial in character, and is for the protection of the party whose rights have been violated. Such orders and commitments are made and issued for the sole purpose of committing the offender until he yields obedience to the order which he has violated, while "criminal contempt" embraces all acts committed against the majesty of the law; or, to clothe the thought in other language, it may be said to include those acts done in disrespect of the court, or which obstruct the due and proper administration of justice, or which tend to bring the court into disrepute in the forum of public opinion. It has been said that the term implies an offense against organized society. Costilla Land & Invest. Co. v. Allen, 15 N. M. 528, 110 Pac. 847; Re Nevitt, 54 C. C. A. 622, 117 Fed. 448; Clay v. Waters, 101 C. C. A. 645, 178 Fed. 385, 21 Ann. Cas. 897; Bessette v. W. B. Conkey.Co. 194 U. S. 324, 48 L. ed. 997, 24 Sup. Ct. Rep. 665; Gompers v. Bucks Stove & Range Co. 221 U. S. 418, 55 L. ed. 797, 34 L.R.A. (N.S.) 874, 31 Sup. Ct. Rep. 492; Ex parte Gudenoge, 2 Okla. Crim. Rep. 110, 100 Pac. 39; Flathers v. State, 7 Okla. Crim. Rep. 668, 125 Pac. 902; Burnett v. State, 8 Okla. Crim. Rep. 639, 47 L.R.A. (N.S.) 1175, 129 Pac. 1110; Re Mettler, 50 Mont. 299, 146 Pac. 747; State ex rel. Hammer v. Downing, 40 Or. 309, 58 Pac. 863, 66 Pac. 917; Red River Potato Growers Asso. V. Bernardy, 128 Minn. 153, 150 N. W. 383; Staley v. South Jersey Realty Co. 83 N. J. Eq. 300, L.R.A.1917B, 113, 90 Atl. 1042, Ann. Cas. 1916B, 955; People ex rel. Brundage v.

Peters, 305 Ill. 223, 26 A.L.R. 16, 137 N. E. 118, and Van Dyke v. Superior Ct. 24 Ariz. 508, 211 Pac. 576.

With these distinctive features in mind, it becomes easy to classify the acts charged in the information in each of these cases, as they are free from those conditions which frequently present so much difficulty. No order has been made by the court directing or commanding the defendants, or either of them, to do or refrain from doing anything; they had violated no writ, mandate, or decree; the rights of no opposite party litigant had been overridden; the object or purpose of the punishment imposed was not to coerce performance of any act, or to compel them to yield obedience to any command whatsoever, but was solely punitive in character for the purpose of vindicating the majesty of the law and to bring about respect for the court. They were, therefore, clearly criminal contempts.

-criticizing judge.

With this preliminary question disposed of, and having determined that the information charged the defendants with criminal contempt, we approach the decisive question in the case; namely, does a conviction and punishment upon such a charge come within the pardoning power of the governor? We shall enter our investigation and consideration, and reach our conclusion, mindful of the delicacy of the question presented, and with a due appreciation of the deference which each of the three coordinate departments of our government-the executive, the legislative, and the judiciary-owes to the other. While each department is supreme within its own field of action, it should be always considerate of, and loath to criticize or endeavor to interfere with, either of the other two.

A review of the source of the pardoning power, as well as its origin and history, reveals that at common law it was vested in the King; it was one of the rights, attributes, and preroga

Criminal lawpardon-who possesses power.

38 A.L.R.-10.

which

U. S.

The same consideration evoked the exercise of this power in England caused the United States, as well as most, if not all, of the states of the Union, to vest the same power in some branch of its government. In the United States it is vested in the President. Const. art. 2. Most of the states have, by constitutional provisions, conferred it upon the governor, as the head of the executive department is generally believed by the American people to be usually so self-restrained, so conscious of and imbued with the responsibilities of his high office, that the power so vested will be rightly, discreetly, and properly used, free from abuse, and exercised solely in the best interest of the entire people of the state, to the exclusion of all improper, sordid, or ulterior motives. Ex parte Bustillos, supra. This power is granted to the governor of -pardonthis state by § 6 of power of article 5 of the Constitution, which provides: "Subject to such regulations as may be prescribed by law, the governor shall have power to grant reprieves and pardons, after conviction for all offenses except treason and in case of impeachment."

governor.

Such constitutional provision constitutes a plain and clear grant of power to grant pardons, after conviction, except in cases of treason and impeachment. Save for these, the governor has the undeniable power to grant pardons, after conviction, for all offenses. It remains, therefore, to determine whether

criminal contempt is an offense within the purview of this constitutional provision. We may, with profit, remind ourselves that, at common law, criminal contempt was an offense punishable in a summary proceeding (4 Lewis's Bl. Com. chap. 30), and, being an offense, was pardonable at the hands of the King (4 Bl. Com. chap. 31). The texts, with little in harmony, agree that it is an offense, and, as such, comes within the pardoning power of the governor under constitutional provisions quite similar to ours.

In 13 C. J., "Contempt," § 154, it is said: "Since punishment for contempt of court is not inflicted out of any personal consideration for the judge, but only to uphold the authority and dignity of the law, an order of the judge inflicting punishment for contempt is within the range of the pardoning prerogatives vested in the executive, and it has been held that the pardoning power of the President extends to cases of contempt; but it has also been held that the pardoning power of the President does not extend to punishment inflicted to compel obedience to an order of court, made in a civil suit, for the benefit of one of the parties to the suit."

And in 20 R. C. L. 537, this rule is thus declared: "That the offense arising from a contempt of the authority of a court is one which, from its nature, should be summarily punished, to the end that an efficient and wholesome exercise of judicial powers may be had, no one will question. But a contempt of court is an offense against the state, and not an offense against the judge personally. In such a case the state is the offended party, and it belongs to the state, acting through another department of its government, to pardon or not to pardon, at its discretion, the offender. And the generally accepted rule is that the pardoning power extends to cases of imprisonment for contempt of court."

Mr. McClain, in vol. 1 of his work on Criminal Law, at page 11, says: "Courts have power to punish as

contempts any interference with their proceedings or resistance of their authority. This is a power inherent in courts of superior jurisdiction, and essential to their existence. It is not simply an incident of the exercise of judicial functions, but is the highest exercise of judicial power. Contempts are sometimes spoken of as criminal when they involve interference with the action of the court, and civil, when they are an injury to a private party by reason of the violation of some order or proceeding of the court to protect his rights. Criminal contempts may be punishable by fine and imprisonment, even though imprisonment for debt is prohibited. In such cases there is no constitutional right to jury trial, or to be confronted by the witnesses against him, but the defendant may be relieved from punishment by executive pardon, as in case of conviction for crime. procedure is governed by the analogies of a criminal prosecution, and it is said the imposition of a fine in such case is a judgment in a criminal case."

The

To the same effect are 1 Bishop, Crim. Law, p. 555, and Rapalje, Contempt, § 162.

The

These texts, all of which are standard authorities, are founded upon a limited number of decisions, which we will consider. The first case to arise in any of the states involving this question was Ex parte Hickey, 4 Smedes & M. 751. facts there were quite similar to those involved here. There the relator was editor of a certain newspaper in which he printed, published, and circulated an article wherein the acts and conduct of the presiding judge of the court then in session, with reference to a certain murder case pending in said court, were discussed and criticized. He was convicted of criminal contempt and sentenced to serve a term of five months in jail and to pay a fine of $500. He received a pardon and was released from custody. Thereupon the court issued a bench warrant upon which he was again taken into custody, and