prisonment consequent upon the re-
lator's alleged contempt forms part
of the proceedings in the action
pending. It grew out of and consti-
tuted an important part of those
proceedings.
We do not view

it in the light of a separate, inde-
pendent, isolated action or proceed-
ing, detached from the main action,
and wholly unconnected with it."

Here, then, the situation is made plain. The plaintiff in the main action had a certain right, and since it concerned the possession of a box containing $35,000 in money and securities, of no inconsequential value to him, the right had to do with the possession of the box, delivered to the defendant in trust for safekeeping. The defendant refused to return the box, and the plaintiff brought an action in court for the possession of it, and under appropriate proceedings secured a writ of sequestration against the defendant. Notwithstanding the force of the writ, the defendant refused to do as judicially commanded. Hence the court, resorting to the only remedy that was left, and without which the action of the court in the premises would have been impotent and pitiable, coerced the defendant by imprisonment. That the imprisonment was for ten days is utterly irrelevant. The court retained jurisdiction of the main action and could have repeated the term of imprisonment ad infinitum until the purpose of it was accomplished; and the defendant could have purged himself at any time within the term by performance. This was civil contempt. Gompers v. Bucks Stove & Range Co. 221 U. S. 418, 55 L. ed. 796, 34 L.R.A. (N.S.) 874, 31 Sup. Ct. Rep. 492; State ex rel. Rodd v. Verage, 177 Wis. 295, 23 A.L.R.491,187 N. W. 830. Otherwise the majority opinion in this case seriously erred as to what constitutes civil contempt. Now it has been held uniformly and consistently by every court that the pardoning power of the King does not and never did extend to civil contempt. The case now considered is the only one ex

tant that has ever announced so startling a doctrine as that contained in the statement in the Louisiana case, quoted and adopted by the majority opinion. The facts were incapable of any construction for disobedience to the writ of sequestration, as in substantial character a remedy in which the plaintiff had the same property right that he had in the thing itself, the securing of which to him the penalty purposed. And when the governor of Louisiana pardoned the defendant, he silenced judicial proceedings and effectually transferred the property in litigation from the plaintiff to the defendant. If the doctrine thus announced by the majority opinion be sound, since chancery courts act only in in personam, their decree henceforth may have effect only if the party against whom they are directed is persuaded to obey them. Certainly they cannot command without at least the tacit imprimatur of the chief executive. "For while it is sparingly to be used, yet the power of courts to punish for contempts is a necessary and integral part of the independence of the judiciary, and is absolutely essential to the performance of the duties imposed on them by law. Without it they are mere boards of arbitration, whose judgments and decrees would be only advisory." Gompers v. Bucks Stove & Range Co. 221 U. S. 418, 55 L. ed. 809, 34 L.R.A. (N.S.) 874, 31 Sup. Ct. Rep. 492.

I do not maintain that this opinion is dictum. I am willing to admit that if the pardoning power of the governor extends to civil contempt, a fortiori it extends to criminal contempt. I am merely calling attention to the egregious absurdity of the opinion of the court in State ex rel. Van Orden v. Sauvinet, and how utterly unworthy it is as authority and precedent.

The next case cited is that of Sharp v. State, 102 Tenn. 9, 43 L.R.A. 788, 73 Am. St. Rep. 851, 49 S. W. 752. decided by the supreme court of Tennessee in 1899. The misconduct upon which the con

tempt was based was that of packing a jury. The case came before the supreme court on appeal by the sheriff, who, in habeas corpus proceedings in the district court, was directed to release the contemner for the reason that the governor had granted him a pardon. The pardon was valid, the supreme court held, because coming within the term of the constitutional provision invoked. "He (the governor) shall have power to grant reprieves and pardons after conviction except in cases of impeachment." The authority of the court for holding that a sentence for contempt is such a conviction as is intended by the language employed in the Constitution is Ex parte Hickey, 4 Smedes & M. 751, State ex rel. Van Orden v. Sauvinet, 24 La. Ann. 119, 13 Am. Rep. 115, and Re Mullee, 7 Blatchf. 23, Fed. Cas. No. 9,911. There are other cases cited, but an examination of them discloses that they are not in point. The Mississippi and Louisiana cases are in this opinion quoted at considerable length as setting forth the correct statement of the law, and as authority. Inasmuch as the Tennessee case follows the first two decisions mentioned, it adds to them as authority only the force of its approval. If it adds any weight to the argument advanced, it is found in the case in Re Mullee, which it cites. The Mullee Case grew out of a contempt in violating an injunction order of the Federal court, for which that court imposed a fine upon the contemner, which the latter was unable to pay, and for that reason applied to the court for the remission of the punishment. To the application the court agreed, but expressed the opinion that he was without power to grant it. Of course, an opinion thus expressed lacks the persuasive force of authority, which, in order to properly deserve the appellation, requires that an applicable rule of law be uged on one side and disputed on the other, and thus presented to the court for decision. But conceding the case to be authority for the purpose of argument, the

reason of the opinion is based on the proposition that the offense is one against the United States, and not against the functionary, which, it is seen, is the same argument that guided the conclusion reached in Ex parte Hickey, and this argument is fortified by the citation of the opinion of Mr. Attorney General Gilpin in Re Dixon, in which the advice of the attorney general, to the effect that the President has the pardoning power in contempt cases, was bottomed upon the fact that such power was acknowledged to be vested in the King. This is the reasoning of the Louisiana case.

I hazard the observation, therefore, that none of the cases dealing with the pardoning power of the governor upon a criminal contempt, upon which the majority opinion relies, carries such weight as precedent and authority as to justify the conclusion reached. For the purpose of this discussion I am not unwilling to concede that the cases cited to the point by the state are dicta. But I do maintain that, in the absence of authority and precedent, it becomes the manifest duty of the court to consider this case as one of first impression, which it is, and consequently to recur to basic principles, to analyze them in the light of all that has been said upon the question at issue, whether dicta or not, and reach such conclusion as these principles inevitably lead to.

What is a contempt? The contempt inquired about is one punishable by summary methods, the one involved in this case. Definition by assemblage of apt words, nicely expressive of the thing defined in the abstract, is of little practical utility. What is valuable is a true conception of the idea,-that which comes irresistibly from a knowledge of the thing in the concrete; from a clear understanding of the practical operation of the court as an institution of government to which the contemner, his conduct, and the punishment inflicted, are related.

The government of the state of New Mexico, like its great proto

point here considered, for recently the same court has reiterated approval and applied all thus said to the judicial power as equally appropriate to it. Toledo Newspaper Co.

v.

United States (October term, 1917) 247 U. S. 418, 62 L. ed. 1193, 38 Sup. Ct. Rep. 560.

The case of Anderson v. Dunn came before the Federal Supreme Court (February term, 1821), 6 Wheat. 204, 5 L. ed. 242, upon the question whether the United States House of Representatives could imprison, for contempt of its authority, the alleged contemner, who was arrested by the sergeant at arms of that body, under a house warrant, having brought a charge against such officer for false imprisonment. To the question thus presented, Mr. Justice Johnson said, upholding the contempt power of the House:

"It is true that such a power, if it exists, must be derived from implication, and the genius and spirit of our institutions are hostile to the exercise of implied powers. Had the faculties of man been competent to the framing of a system of government which would have left nothing to implication, it cannot be doubted that the effort would have been made by the framers of the Constitution. But what is the fact? There is not in the whole of that admirable instrument a grant of powers which does not draw after it others, not expressed, but vital to their exercise; not substantive and independent, indeed, but auxiliary and subordinate.

"But if there is one maxim which necessarily rises over all others in the practical application of government, it is that the public functionaries must be left at liberty to exercise the powers which the people have intrusted to them. The interests and dignity of those who created them require the execution of the powers indispensable to the attainment of the ends of their creation. Nor is a casual conflict with the rights of particular individuals any reason to be urged against the exercise of such powers.

"That "the safety of the people is the supreme law,' not only comports with, but is indispensable to, the exercise of those powers in their public functionaries, without which that safety cannot be guarded. On this principle it is that courts of justice are universally acknowledged to be vested, by their very creation, with power to impose silence, respect, and decorum, in their presence, and submission to their lawful mandates, and, as a corollary to this proposition, to preserve themselves and their officers from the approach and insults of pollution."

In Marshall v. Gordon (October term, 1916) 243 U. S. 521, 61 L. ed. 881, L.R.A.1917F, 279, 37 Sup. Ct. Rep. 448, Ann. Cas. 1918B, 371, the Federel Supreme Court again had under consideration the contempt power of the national House of Representatives; and reaffirming what has been said in Anderson v. Dunn, supra, and clarifying the doctrine of that case with reference to later cases decided by it and with reference to the English case, Kielley v. Carson, 4 Moore, P. C. C. 63, 13 Eng. Reprint, 225, it again stated the essential meaning of contempt:

"What does this implied power embrace? is thus the question. In answering, it must be borne in mind that the power rests simply upon the implication that the right has been given to do that which is essential to the execution of some other and substantive authority expressly conferred. The power is therefore but a force implied to bring into existence the conditions to which constitutional limitations apply. It is a means to an end, and not the end itself. Hence it rests solely upon the right of self-preservation to enable the public powers given to be exerted.

"Without undertaking to inclusively mention the subjects embraced in the implied power, we think from the very nature of that power it is clear that it does not embrace punishment for contempt as punishment, since it rests only upon the right of self-preservation; that

is, the right to prevent acts which, in and of themselves, inherently obstruct or prevent the discharge of legislative duty, or the refusal to do that which there is an inherent legislative power to compel in order that legislative functions may be performed. And the essential nature of the power also makes clear the cogency and application of the two limitations which were expressly pointed out in Anderson v. Dunn, supra; that is, that the power .

limited to imprisonment, and such imprisonment may not be extended beyond the session of the body in which the contempt occurred. Not

only the adjudged cases, but congressional action in enacting legislation as well as in exerting the implied power, conclusively sustain the views just stated. Take, for instance, the statute referred to in Re Chapman, 166 U. S. 661, 41 L. ed. 1154, 17 Sup. Ct. Rep. 677, where, not at all interfering with the implied congressional power to deal with the refusal to give testimony in a matter where there was a right to exact it, the substantive power had been exerted to make such refusal a crime, the two being distinct, the one from the other."

Again, in Toledo Newspaper Co. v. United States, 247 U. S. 402, 62 L. ed. 1186, 38 Sup. Ct. Rep. 560, which was a review of a sentence of contempt imposed upon the contemner for abusive language toward the Federal court, with reference to an injunction suit pending before it, reviewing the Marshall v. Gordon Case, and previous decisions in line with it, the court said:

"While the Marshall Case concerned the exercise of legislative power to deal with contempt, the fundamental principles which its solution involved are here applicable to the extent that they may not be inapposite because of the distinction between legislative and judicial power. Indeed, the identity of the constitutional principles applicable to the two cases, subject to the difference referred to, was pointed out on pages 542 and

38 A.L.R.-11.

543, where it was said: 'So, also, when the difference between the judicial and legislative powers is considered and the divergent elements which, in the nature of things, enter into the determination of what is self-preservation in the two cases, the same result is established by the statutory provisions dealing with the judicial authority to summarily punish for contempt; that is, without resorting to the modes of trial required by constitutional limitations or otherwise for substantive offenses under the criminal law. Act of March 2, 1831, 4 Stat. at L. 487, chap. 99, Comp. Stat. § 1245.'

"Clarified by the matters expounded and the ruling made in the Marshall Case there can be no doubt that the provision [268 of the Judicial Code] conferred no power not already granted and imposed no limitations not already existing. In other words, it served but to plainly mark the boundaries of the existing authority resulting from and controlled by the grants which the Constitution made and the limitations which it imposed. And this is not at all modified by conceding that the provision was intended to prevent the danger by reminiscence of what had gone before of attempts to exercise a power not possessed, which, as pointed out in the Marshall case, had been sometimes done in the exercise of legislative power. The provision, therefore, conformably to the whole history of the country, not minimizing the constitutional limitations nor restricting or qualifying the powers granted, by necessary implication, recognized and sanctioned the existence of the right of self-preservation; that is, the power to restrain acts tending to obstruct and prevent the untrammeled and unprejudiced exercise of the judicial power given by summarily treating such acts as a contempt and punishing accordingly. The test, therefore, is the character of the act done and its direct tendency to prevent and obstruct the discharge of judicial duty."