(N. M., 224 Pac. 1028.) penal laws of statutory recognition because they are public offenses, and it is consequently public offenses that the framers of the Constitution had in mind in defining the pardoning power. State ex rel. Rodd v. Verage, supra: "As the governor is charged with the duty of seeing that the laws be faithfully executed, it is in strict accordance with the theory of the power of pardon that he should have power to pardon offenders against the laws which it is his duty to execute. But should such power extend to offenses with respect to which he has no duty or concern? Does the power of one to pardon the violation of a law which it is not his duty to execute comport with the theory of the pardoning power? If the governor is not charged with the duty of enforcing obedience to the orders of the court, on what theory should he have the power to forgive disobedience of those orders? The power of the Sovereign to pardon is much like the power of an individual to remit a debt. A may remit a debt owing to him by C, but B is without power to remit the debt which C owes to A." Here the fact is to be attended to that when we speak of an offense against the state, what is meant is a public offense,—one of legislative recognition; that is, either defined by express statute or known to common law and adopted by legislative act. Clarified by this statement, a discussion of the offense here considered as against organized society or as against the majesty of the law is a matter of vocabulary and rhetoric, not of actuality and substance; for, if organized society denounces an act as criminal, it does so through constitutional methods, that is, by legislative act. Obviously, the majesty of the law is a pure abstraction and can neither declare an act criminal nor impose a penalty for its violation. It is true that the court is that institution of the government which bespeaks the majesty of the law, and which is the very cornerstone of organized society; conse quently, a criminal contempt of court, in that it outrages the dignity and authority of the court, is, in this respect, essentially an offense against the majesty of the law, against organized society, against the state; but in the sense of being an offense against the public law with the execution of which the governor is charged, it emphatically is not an offense against the state. Indeed, the statement of the constitutional provision itself lends no little force to the proposition that, by the application to it of the ordinary rule of interpretation, the "offenses" which the governor may pardon are such offenses as are of usual statutory recognition. The classification of crimes at common law was treason, felonies, and misdemeanors. 16 C. J. 55. The inference is legitimate that when "treason" was excepted from the offenses pardonable, the word "offense" was intended to mean the classification in which treason would have been included save for the exception. So far as the judicial function is concerned, there is no relation whatsoever between the pardon of an ordinary crime as denounced by legislative act and the pardon of a criminal contempt. The pardon of a criminal after conviction, when he is beyond he is beyond the jurisdiction of the court, has no more to do with the impartial and unembarrassed administration of justice with reference to a pending case, with the court as an institution of government, than has the failure of the sheriff to arrest one suspected of a crime, before he has been brought within the jurisdiction of the court. The acts of executive officers in both instances concern the welfare of society, and are meaningless so far as they might affect the court as an institution of government. On the other hand, the contempt power is an essential part of the judicial function without which justice cannot be impartially Το and effectively administered. preme Court says, in Re Debs, quoting with approval the supreme court of Mississippi in Watson v. Williams, 36 Miss. 331: "The power to fine and imprison for contempt, from the earliest history of jurisprudence, has been regarded as a necessary incident and attribute of a court, without which it could no more exist than without a judge. It is a power inherent in all courts of record, and coexisting with them by the wise provisions of the common law. A court without the power effectually to protect itself against the assaults of the lawless, or to enforce its orders, judgments, or decrees against the recusant parties before it, would be a disgrace to the legislation and a stigma upon the age which invented it." 158 U. S. 595, 39 L. ed. 1106, 15 Sup. Ct. Rep. 900. If the contempt power is so defined with reference to the administration of justice, and if the punishment inflicted is a means to an end, it would seem to be incontrovertible that to exempt an individual from such punishment destroys the means to the end and frustrates the accomplishment of that end, so that the governor consequently can no more annul the punishment than he can destroy the court itself. If the exercise of the contempt power is, as above stated, the exertion by the court of the implied power of selfpreservation, that it cannot be interfered with by another department of government is an a priori judgment; if the definition of the power in its essential character be correct, the denial of the pardoning power with reference to it becomes a matter of logical necessity. The same implication from which the power is derived serves to exclude the pretensions of the governor to pardon. This is made clear by the great Justice Story, the associate and compeer of Marshall himself, in Story on the Constitution, 5th ed. § 1503: "It would seem to result from the principle on which the power of each branch of the legislature to punish for contempts is founded that the executive authority cannot interpose between them and the offender. The main object is to secure a purity, independence, and ability of the legislature adequate to the discharge of all of their duties. If they can be overawed by force, or corrupted by largesses, or interrupted in their proceedings by violence, without the means of self-protection, it is obvious that they will soon be found incapable of legislating with wisdom or independence. If the executive should possess the power of pardoning any such offender, they would be wholly dependent upon his good will and pleasure for the exercise of their own powers. Thus, in effect, the rights of the people intrusted to them would be placed in perpetual jeopardy. The Constitution is silent in respect to the right of granting pardons in such cases, as it is in respect to the jurisdiction to punish for contempts. The latter arises by implication; and, to make it effectual, the former is excluded by implication." What the great justice said above is forcibly expressed with more particularity by Judge Sanborn, of the United States circuit court of appeals, in Re Nevitt, 54 C. C. A. 630, 117 Fed. 456: "If the President has the power to pardon those who are committed for criminal contempts of the authority of the courts, and thus to relieve them from fines or imprisonments inflicted to punish them for their disobedience, this immemorial attribute of judicial power is thus practically withdrawn. from the courts and transferred to the executive; for he may pardon whom he will, and he would have the power to so exercise this authority as to deprive the courts of all means to punish for disobedience of their orders. Is there any provision of the Constitution of the United States which grants this inherent and essential attribute of judicial power, or the authority to control its exercise, to the executive? Congress has undoubted authority to punish recalcitrant witnesses for contempt of its authority. The offenses of such witnesses are as (N. M. —, 224 Pac. 1028.) much offenses against the United States as the offenses of witnesses, jurors, or parties who disobey the orders, writs, or processes of the courts. May the President pardon such witnesses who are committed for the purpose of punishing them for the disobedience of such orders and processes, and thus deprive Congress and the courts of the ability to punish for disobedience of their lawful orders and processes? If a court fines or imprisons a juror because he refuses to obey its mandate when summoned, or because he refuses to act when he appears, may the President immediately pardon him, and thus relieve him from all punishment for disobedience of the order of the court? May he pardon all jurors for all disobedience of the mandates of the courts, and thus practically deprive the courts of the power to summon jurors? If riotous persons are fined or imprisoned for disturbing, defying, and preventing the proceedings of a court, may the President pardon them, and thus deprive the court of the power to continue its sessions and to discharge its functions? In other words, has the executive the power, if he chooses to exercise it, of drawing to himself all the real judicial power of the nation which the Constitution vested in express terms in the courts, by means of his supreme control of the inherent and essential attribute of that power-the authority to punish for disobedience of the orders of the courts? These These questions seem to suggest their answers." To the same effect the doctrine is elaborated by the court of civil appeals of Texas in Taylor v. Goodrich, 25 Tex. Civ. App. 124, 40 S. W. 523: "The real inquiry is whether a contempt proceeding is a criminal case, within the meaning of this constitutional provision. If the words 'criminal case' are confined to the crimes mentioned in the Penal Code, and should be held to be construed only as the terms 'crime' and 'offense' are therein defined, there would be little difficulty in reaching a correct conclusion upon this question; for the question of contempt is not mentioned in the Penal Code, and is not there characterized as a crime or offense. When we inquire into the reason of the law that confers the power upon the courts to punish for contempts, we cannot well perceive that the Constitution, in authorizing the executive to pardon crimes, and remit fines in criminal cases, intended that the power should be should be exercised in contempt cases, and that such cases should be regarded as criminal. The efficiency and integrity of courts demand that they shall have the right, in order to transact their business in an orderly way, to require the observance of decorum, and to punish those who may interfere with them when exercising their judicial functions, or who may at such times, by wilful conduct, interfere with the peace of the court, or bring it into contempt. If the power is given to the governor to pardon in cases of this character, it admits the weakness and want of the power in the court to preserve its standing and to protect itself from contempt, and would virtually lodge in the governor the final power to determine if a contempt has been shown to the court, and whether the party should be punished. Such a concession of authority is incompatible with many provisions of law on the subject of contempt. How could a court preserve the ends of justice by compelling an unwilling witness to testify, if the governor could relieve him from the punishment inflicted by the court for his refusal? How may a court enforce its orders in injunction and mandamus, and in other proceedings, if a governor may virtually set them aside by pardoning the one who has wilfully disobeyed them? How may obedience to the process of the court be enforced, if a governor may stand between the court and the one that has disobeyed it? How may a court, in an orderly and efficient way, perform its official functions and public duties, if a gov. ernor may paralyze its power in furtherance of these ends? The moment you admit that a governor has the power to cripple a court in the performance of its duties, in the way noticed, then it virtually follows, as a sequence, that the courts, in the administration of justice, are under the control of the governor, and, while he cannot influence their judicial acts and conduct, he may control them. It is not believed that the Constitution of this state intended to invest him with any such power." Re Nevitt is valuable only for the argument that it contains; for that part of the case which had to do with the right of the President to pardon is, as that court stated, dicta. The statement of the court, however, in the case of Taylor v. Goodrich, with reference to the pardoning power, is authority and precedent. The criticism made against it in this respect, to the effect that it is not in point because of the fact that in Texas there are no crimes except those defined by statutes, is, I think, made unavailing by a cursory examination of the case and the reasons given by the court that lead to the conclusion reached. The court itself said that its decision depended upon the interpretation of the constitutional provision defining the pardoning power. Very clearly such interpretation is a judicial, and not a legislative, matter, so that the court was not concluded by the legislative act in excluding a criminal contempt from the definition of crimes. It is clear that what the court did was to give weight to the legislative interpretation that criminal contempt is not a substantive crime; but, even had the legislature defined a "criminal contempt" as a substantive crime, certainly it could not be held that its act in so doing was binding on the court. It might be observed further to this point, that if the contention that a summary contempt is a substantive crime be true in fact, and under the laws of Texas there are no crimes except those of legislative definition, then it would result that the courts a The duties of the governor are executive, except as the approval or veto of a legislative act is the exercise of legislative function. Nowhere in the Constitution is power conferred upon the governor to review or interfere with judicial proceedings. That power is conferred upon the supreme court. It alone has appellate jurisdiction as to the orders, decrees, and judgments of, and a superintending control over, inferior courts. State Const. art. 6. The grant of judicial power in one case is no clearer or more emphatic than is the exclusion of it in the other. That the granting of a pardon for a criminal contempt is the exercise of a superintending control over the court in which such proceedings were had is too plain to require argument. The governor of an American state is not only the repository of those powers constitutionally conferred upon him, but he is the titular head and actual leader of the particular party which put him in office, and as such he is not insensitive to political drafts, a consideration which most strongly denies any intent or purpose on the damental law to press upon the jupart of those who designed our fundicial process the dead hand of political expediency. On the contrary, a vigorous, independent judiciary is the very bulwark of our institutions. The Constitution reflects such a conception of the judiciary. That the typical state executive may be depended upon not to exercise the power here asserted except in rare instances, though such power be conceded to him, and that the fears for the judiciary here expressed are fanciful rather than real, is an irrelevant consideration. Finem volunt media. The question concerns the constitutional existence of pow er; that granted, it may be exercised (N. M., 224 Pac, 1028.) in any of the instances above stated, and to the frustration of judicial power, as indicated. Only if the extension of the pardon power to criminal contempt be clearly indicated. by the language of the Constitution should the pardon in this case be upheld; not by forcibly reading that intent into the provision examined. For these reasons I dissent. ANNOTATION. Power of executive to pardon one committed for contempt. The notes in 23 A.L.R. 524, and 26 A.L.R. 21, review the earlier cases discussing the power of an executive to pardon one committed for contempt. In but one decision other than the reported case does the question seem to have been decided recently. STATE V. MAGEE PUB. Co. (reported herewith) ante, 142, holds that the governor of a state has power to pardon the editor of a newspaper who has been committed for contempt by reason of his printing certain articles criticizing the presiding judge of the court which convicted him of criminal libel. In EX PARTE GROSSMAN (reported herewith) ante, 131 reversing (1924) 1 F. (2d) 941, it was held that the President of the United States had power to pardon one committed for contempt in disobeying a restraining order served on him to stop him from selling liquor in violation of statute. Chief Justice Taft said, inter alia: "Article 2, § 2, cl. 1, of the Constitution, dealing with the powers and duties of the President, closes with these words: 'And he shall have power to grant reprieves and pardons for offenses against the United States, except in cases of impeachment.' Nothing in the ordinary meaning of the words 'offenses against the United States' excludes criminal contempts. That which violates the dignity and authority of Federal courts, such as an intentional effort to defeat their decrees justifying punishment, violates a law of the United States, . . . and so must be an offense against the United States. . . . It is clear to us that the language of the 5th and 6th Amendments and of other cited parts of the Constitution are not of significance in determining the scope of pardons of 'offenses against the United States' in article 2, § 2, cl. 1, of the enumerated powers of the President. We think the arguments drawn from the common law, from the power of the King under the British Constitution, which plainly was the prototype of this clause, from the legislative history of the clause in the Convention, and from the ordinary meaning of its words, are much more relevant and convincing. Moreover, criminal contempts of a Federal court have been pardoned for eighty-five years. In that time the power has been exercised twenty-seven times. . . . The executive can reprieve or pardon all offenses after their commission, either before trial, during trial, or after trial, by individuals or by classes, conditionally or absolutely, and this without modification or regulation by Congress.. Executive clemency exists to afford relief from undue harshness or evident mistake in the operation or enforcement of the criminal law. The administration of justice by the courts is not necessarily always wise or certainly considerate of circumstances which may properly mitigate guilt. To afford a remedy, it has always been thought essential in popular governments, as well as in monarchies, to vest in some other authority than the courts power to ameliorate or avoid particular criminal judgments. It is a check intrusted to the executive for special cases. . . . An abuse in pardoning contempts would certainly embarrass courts, but it is questionable how much more it would lessen their effectiveness than a wholesale pardon of other offenses. If it be said that the President, by successive pardons of constantly recurring contempts in particular litigation, might deprive a court of power to enforce its orders in a recalcitrant neighborhood, it is enough to observe that such a |