with the order of the court that they levy the tax to pay in part the judgment of the plaintiff, Douglas, against this county. This plaintiff has the legal right to the enforcement of this order by the coercive power of the court. The power of the President to grant reprieves and pardons of offenses against the United States does not extend to him the authority to release or destroy the civil rights of private individuals, and hence cannot authorize him to deprive this plaintiff of his legal right to the enforcement of his mandamus by the commitment of the prisoners until they comply with the lawful order of the court."

And in the reported case (STATE EX REL. ROOD V. VERAGE, ante, 491) the executive is held to be without the power to pardon a civil contempt, it appearing that the contemner refused to comply with an injunction restraining him from performing certain acts. While not expressly deciding the point, the court seriously questions the pardoning power of the executive in either class of contempt.

With respect to the power of the Executive to pardon criminal contempts, the court in the case of Re Nevitt (Fed.) supra, said: "The contention of counsel for the petitioners, and the authorities to which he calls our attention, suggest a very interesting question the answer to which is not essential to the decision of this application-the question whether or not the President has the power to pardon those committed or fined for criminal contempts, those fined or imprisoned to vindicate the dignity and to preserve the power of the court, or to punish the disobedience of its direction, as distinguished from those fined and imprisoned for civil contempts, as in the case before us, those fined or imprisoned for the purpose of protecting or enforcing the private rights and remedies of parties to civil suits. If the President has the power to pardon those who are committed for criminal contempt 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them for their disobedience, this immemorial attribute of judicial power is thus practically withdrawn from the courts and transferred to the Executive; for he may pardon whom he will, and he would have the power to so exercise this authority as to deprive the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 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? 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

In

the authority to punish for disobedience of the orders of the courts? These questions seem to suggest their answers. . . . There is an opinion of Attorney General Gilpin, in (1841) 3 Ops. Atty. Gen. at page 622, that the President has power to relieve a person of a fine of $400 imposed upon him for an affray in the presence of the court, and an opinion of Attorney General Mason, in (1845) 4 Ops. Atty. Gen. at page 458, that the President may pardon defaulting jurors of fines imposed for a failure to obey the process of the court. But these opinions are neither controlling nor persuasive, because they contain no discussion, and give no consideration to the controlling fact which must in the end condition and determine the decision of these questions-the fact that the judicial power of the United States is not derived from the King, as it was in England, or from the President, but is granted by the people by means of the Constitution, in its entirety,-including the inherent and indispensable attribute of that power, the authority to punish for disobedience of their orders, to the Federal courts, free from the control or supervision of the executive department of the government, to the same extent that the entire executive power of the nation is vested in the President, free from the supervision or control of the courts. Const. art. 2, § 1, art. 3, § 1. The argument that punishment for contempt of court falls within the power of the President to grant pardons for offenses against the United States, because the Supreme Court said, in Ex parte Kearney (1822) 7 Wheat. (U. S.) 38, 5 L. ed. 391, a case in which a writ of habeas corpus to relieve a petitioner from punishment for disobeying the order of an inferior court was denied, that the proceeding to punish for that contempt was a criminal case, and in New Orleans v. New York Mail S. S. Co. (1874) 20 Wall. (U. S.) 387, 392, 22 L. ed. 354, 357, an appeal from a decree for an injunction, for damages, and for the imposition of a fine for disobedience of a preliminary

injunction, that the imposition of the fine was a judgment in a criminal case, and without its jurisdiction, is neither cogent nor convincing, for the reason that neither the questions which have been suggested here, nor the Constitution and the acts of Congress which condition their determination, were there presented, argued, or considered. It is not, however, necessary to a decision of the application before us, nor is it our purpose, to here decide whether or not criminal contempts-contempts instituted solely for the purpose of vindicating the dignity of the courts, preserving their power, and punishing disobedience of their orders-fall within the pardoning power of the Executive. That question has been presented and pressed upon our consideration by the argument and the authorities of counsel for the petitioners, and it has been adverted to, and some of the considerations which in our opinion must control its ultimate decisions have been suggested, that it might be clear that in what is said in this opinion this court neither intimates nor decides that there is or ought to be any authoritative decision that the executive department of the government has been vested with any such power."

In an early case, Re Mullee (1869) 7 Blatchf. 23, Fed. Cas. No. 9,911, it appeared that the defendant had been fined for a wilful and persistent disobedience of an order and injunction of the court, and had been committed until the fine should be paid. After he had been imprisoned for some time he applied to Blatchford, J., for his discharge, on the ground that he was unable to pay the fine. It was held that the circuit court had no jurisdiction to relieve him, because the order committing him was criminal, and not civil, in its nature, and because his only remedy was an application to the President for his pardon under article 2, § 2, subd. 1, of the Constitution, which invests the Executive with power "to grant reprieves and pardons for offenses against the United States, except in cases of impeachment." The defend

ant applied to the President for a pardon, which was denied. Subsequently, in Hayes v. Fischer (1880) 102 U. S. 121, 26 L. ed. 95, a writ of error to review a similar order of commitment of another defendant for a like disobedience in the same case, the Supreme Court expressed a doubt whether the order and injunction were not merely interlocutory directions in a civil suit. Thereupon, in Fischer v. Hayes (1881) 19 Blatchf. 184, 7 Fed. 96, Blatchford, J., abandoned his theory that a commitment for a failure to obey the order of a court to pay money, or to do any other act to which the court has adjudged the opposite party in the suit entitled, was a criminal, and not a civil, proceeding, and admitted the defendant to bail, an act which he could not have done if the order of commitment had been criminal in its - nature.

But it was said in Re Mason (1890) 43 Fed. 510, that a pardon by the Executive is, in most cases of contempt, the mode of release. The dictum did not distinguish between civil and criminal contempt. .

In Texas, it is held that a contempt proceeding is not a criminal case within the meaning of a constitutional provision declaring that "in all criminal cases, except treason and impeachment, the governor shall have power, after conviction, to grant reprieves, commutations of punishment and pardons, and under such rules as the legislature may provide he shall have power to remit fines and forfeitures." Taylor v. Goodrich (1897) 25 Tex. Civ. App. 109, 40 S. W. 515. The court said: "The legislature, as provided in the Code of Criminal Procedure, has authorized him to remit fines and grant pardons in criminal actions. 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 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 power in the court to preserve its standing and to protect itself from contempts, 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 governor 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. And it is believed, as

before said, that the term 'criminal cases,' as there used, was intended to be understood as meaning those cases and crimes provided for in the Criminal Code, for which a conviction must be had in the manner provided by law for the trial of criminal · cases."

II. View that contempt is pardonable.

Several courts have upheld the pardoning power of the executive on the express ground that a contempt of court is an offense against the state, and not an offense against the judge personally. Hence, 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. State ex rel. Van Orden v. Sauvinet (1872) 24 La. Ann. 119, 13 Am. Rep. 115; Ex parte Hickey (1844) 4 Smedes & M. (Miss.) 751; Sharp v. State (1899) 102 Tenn. 9, 43 L.R.A. 788, 73 Am. St. Rep. 851, 49 S. W. 752.

In State ex rel. Van Orden v. Sauvinet (La.) supra, wherein it appeared that the contemner was committed because he refused to deliver a cash box, alleged to contain moneys and public securities, the court said: "The next inquiry is, Has the governor the prerogative of pardon in cases of conviction and punishment for contempt of the authority of a court. The investigation which we have been able to make of this question does not satisfy us that the chief executive officer of the state is without power to extend pardon to a party convicted and punished for contempt of court. We find nothing in the Constitution of the state which

makes an exception in such cases. That the President of the United States is clothed with the power to grant pardons in cases where judges of the United States courts punish for contempts is clearly settled. (1845) 4 Ops. Atty. Gen. 458; (1852) 5 Ops. Atty. Gen. 579; Re Mullee (1869) 7 Blatchf. 24, Fed. Cas. No. 9,911, and cases there cited. The analogy between the execise of such a power by the President in all the states, in cases of the sort arising in the courts of the United States, and the exercise of that power in a single state by its governor, in the same class of cases arising in the courts of a state, seems to be strong and well defined. There being no exception found in our state Constitution, precluding in such cases the exercise of the pardoning prerogative by the governor of the state, we feel no hesitancy in recognizing its existence. 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 the opinion, entertained to some extent, that punishments decreed for sth offenses must necessarily be inflicted at the stern arbitrament of the judge, without remission or abatement by the pardoning power, we do not find to rest upon any firm basis of principle or authority. A contempt of court is an offense against the state, and not an offense against the judge personally. That this is a delicate power, and should be used only in cases manifestly proper, we are at liberty in our private judgments to believe; while, on the other hand, we have no question that abuses in the exercise of the power of punishing for contempts may arise, although instances of the kind are rare. We can scarcely think it compatible with the genius of liberal government and free institutions that there should be no shield to protect an individual against a tyrannical exercise by a judge of his power to punish for contempt, and therefore conclude that, upon the principle of

checks and balances upon which our American governments are founded, it was not intended by the framers of them that the pardoning power should not reach a party unduly deprived of his liberty by, it might be, a hasty and petulant fiat of a judge. That the power of pardoning in such cases is withheld from the executive departments of our state governments, the counsel representing the plaintiff in sequestration, in the case before us, has not satisfied us by the authorities referred to in his brief. These seem to us to rest upon hypothesis and implications only and indicate no positive constitutional provision withholding the power in question. We do not see the force of the reasoning used to support the deductions made. They seem to be little better than plausible conjecture.

It

is proper to add that Lewis, the plaintiff in sequestration, has no interest or right of property in the punishment inflicted. It is no concern of his, but concerns the state alone; and the rule, therefore, that when a private person (as an informer, for example) has acquired a right of property in a penalty, the executive cannot pardon, can have no application to this case."

So, in Ex parte Hickey (1844) 4 Smedes & M. (Miss.) 751, it was said: "The power to pardon is, by English writers, styled the most amiable prerogative of the Crown. 4 Bl. Com. 396. It was contemporary with the first memorials of the law. In its extent, it reached to all offenses against the Crown, or the public. Id. 398. It does not reach to cases where private justice is connected with the prosecution of offenders'non potest rex gratiam facere cum injuria et damno aliorum' 4 Inst. 236. Thus, in penal statutes, where the informer has acquired a private property in a part of the penalty, the King cannot pardon the offense. Bl. Com. 398. But among pardonable offenses is that of contempt of court. In the Statute of Westminster 2, 13 Edw. I. chap. 39, which has before been claimed to have been the origin of the doctrine of constructive 23 A.L.R.-34.

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contempts, in speaking of the imprisonment of those who resist sheriffs, occur these words,-‘A qua non deliberentur sine speciali precepto domini Regis'-from which imprisonment they shall not be released, but by the special command of our lord, the King. It is, moreover, elsewhere said that a pardon for all misprisions, trespasses, offenses, or contempts will pardon a contempt in making a false return, and a striking in Westminster Hall, and barratry, and even a præmunire. Jacob's Law Dict. "Pardon;" 2 Hale, P. C. 252; Rex v. Turvil (1675) 2 Mod. 52, 86 Eng. Reprint, 936; 3 Dyer, 303a, 73 Eng. Reprint, 681. The Constitution of the state (art. 5, § 10) bestows upon the governor of the state 'the power to grant reprieves and pardons, and to remit fines in all criminal and penal cases, except in those of treason and impeachment.' But it has been insisted by counsel that contempts of court do not come under the class of criminal or penal cases. The attachment which issues upon the information of a contempt is a criminal process. 1 Tidd, Pr. 401; 4 Bl. Com. 231, calls the offense 'a criminal charge.' 'A crime, or misdemeanor, is act committed, or omitted, in violation of a public law, either forbidding or commanding it.' 4 Bl. Com. 5. The distinction of public wrongs from private, of crimes and misdemeanors from civil injuries, seems principally to consist in this: that private wrongs or civil injuries are an infringement or privation of the civil rights which belong to individuals, considered merely as individuals; public wrongs, or crimes and misdemeanors, are a breach and violation of public rights and duties, due to the whole community, considered as a community in its social, aggregate capacity. Id. 6. Contempts of court are treated by all elementary writers as public wrongs. They are distinguished from ordinary crimes or misdemeanors, because in their punishment there is no intervention of a jury, the party being acquitted or condemned by the suffrage of such person only as the statute has appointed

an