DISSENTING OPINION.*
* See 4 Ind. L. Jour. 550; 38 Yale L. Jour. 819; 14 Cornell L. Quart. 484; 13 Minn. L. Rev. 506. Where proceedings for contempt of court are criminal or punitive in their nature, as distinguished from those civil, remedial or coercive in their nature, the uniform holding of the courts throughout the United States has been that the case is governed by the analogies of criminal procedure, that the punishment is for a public offense (the wrong being to the public and not to the functionary to whom it is offered considered as an individual), and that the order inflicting punishment in such a case comes within the range of the pardoning prerogative. Heretofore, in this case (a proceeding for an alleged indirect criminal contempt of court), in discussing the admissibility of depositions in evidence without the consent of the respondent, I cited and discussed numerous cases supporting the statement above made (October, 1928) 163 N.E. 272, at 273, 274. See, also, 13 C.J. 97; 6 R.C.L. 540; Rapalje, Contempt § 162.
Section 19, Art. 5, Constitution of Indiana, § 150 Burns 1926, provides that the Governor, in whom the executive power of the state is vested, "shall have the power to grant reprieves, commutations and pardons, after conviction, for all offenses except treason and cases of impeachment,1 subject to such regulations as may be provided by law. . . ." It appears that a majority of the members of the court have concluded that the Governor does not have a right to grant a pardon in this case because they believe a criminal contempt of court is not an "offense" within this section of the Constitution, and because they hold that this is not a "criminal prosecution" within the sections of the Constitution relating *Page 727 to trial by jury. This conclusion is wholly at variance with the well-considered decisions of the United States Supreme Court inEx parte Grossman (1925), 267 U.S. 87, 45 Sup. Ct. 332, 69 L. Ed. 527, 38 A.L.R. 131, and in Gompers v. United States (1914), 233 U.S. 604, 34 Sup. Ct. 693, 58 L. Ed. 1115, which together with other similar authority from various state courts, including the cases of State, ex rel., v. Sauvinet (1872), 24 La. Ann. 119, 13 Am. Rep. 15,1 and State v. Magee Pub.Co. (1924), 29 N.M. 455, 224 P. 1028, 38 A.L.R. 142, have been brought repeatedly to the attention of this court; see 163 N.E. 273. It was held in the Gompers case that contempts are infractions of the law visited with punishment as such, and are none the less offenses because trial by jury does not extend to them as a matter of constitutional right.
Section 19, supra, excepts "treason and cases of impeachment" from the pardoning power, which otherwise extends to "all offenses." Treason is a crime, but *Page 728 public officers may be impeached "in such manner as provided by law," § 8, Art. 6, Constitution, for acts which are not otherwise unlawful, such as neglect of duty, § 12139 Burns 1926, and misdemeanor in office, § 12104 Burns 1926.1 So it would seem that the makers of the Constitution in using the word "offenses" did not have in mind the narrow construction given it by the court in the case at bar, and this court in State v. Dunning (1857), 9 Ind. 20, 24, considered the word "offenses" in the broader sense.2
Section 2, Art. 2, Constitution of the United States provides: "The President . . . shall have power to grant reprieves and pardons for offenses against the United States, except in cases of impeachment." The power thus conferred (in almost the exact language of *Page 729 the Indiana Constitution) is, with the exception stated, unlimited and extends to every offense known to law, Ex parteGarland (1866), 4 Wall. (U.S.) 333, 380, including criminal contempts of court. Ex parte Grossman, supra.
I do not see the force or application of the historical references, made in the prevailing opinion, to the early English government. While the language of the Constitution cannot be interpreted safely except by reference to the common law and to British institutions as they were when the instrument was framed and adopted, it is clear and undisputed from the very nature of our republican form of government that the pardoning power is a power inherent in the people. It is not necessarily an executive power, because the people in adopting a constitution may confer it upon any department or officer they may see fit. Jamison v.Flanner (1924), 116 Kan. 624, 228 P. 82, 35 A.L.R. 973, 981. The Indiana Constitution, like the United States Constitution and the constitutions of most states, see note 1, supra, lodges this power or prerogative in the chief executive officer.
One of the fundamental principles adopted by the framers of the United States Constitution was the doctrine, advocated by Charles Louis de Secondat, baron of Montesquieu (1699-1755), of the division of the government into three independent departments — Legislative, Executive, and Judicial. The Constitution of the United States divides the powers it grants as follows: Article 1 of the Legislative, to Congress; Article 2 of the Executive, to the President; and Article 3, of the Judiciary, to the United States Supreme Court and such inferior courts as the Congress may from time to time ordain and establish, just as definitely and effectively as does the section (§ 1, Art. 3) of our State Constitution concerning the distribution of powers to the three departments. *Page 730 There is no greater independence of the three departments under the state than under the national Constitution. The court in Exparte Grossman, supra, points out that complete independence and separation of the three branches are not attained or intended, and by a series of illustrations shows that the independence of each other is qualified — that the judiciary, quite as much as legislative and the executive is dependent on the co-operation of the other two, that government may go on.
In adopting the Montesquieu doctrine, the founders of the Republic — and the makers of our state Constitution following them — set up, by the Constitution, a system of co-ordinating checks and balances. The pardoning power, granted to the executive is one of those checks and balances. An executive, in whom the power of pardon is vested, might abuse that power although he seldom does. Suppose he should pardon, without reason, all of the 6,000 prisoners in our penal institutions — another one of the checks and balances, viz., the power of impeachment (§ 8, Art. 6, Constitution), could then be invoked as a remedy.
Speaking of the contention that criminal contempts should not be held within the pardoning power because it would tend to destroy the independence of the judiciary and violate the constitutional principle of a separation of the legislative, executive and judicial powers, Chief Justice Taft, in the concluding paragraph of the opinion in Ex parte Grossman,supra, said: "It goes without saying that nowhere is there a more earnest will to maintain the independence of federal courts and the preservation of every legitimate safeguard of their effectiveness afforded by the Constitution than in this Court. But the qualified independence which they fortunately enjoy is not likely to be permanently strengthened by ignoring precedent and practice and minimizing the *Page 731 importance of the co-ordinating checks and balances of the Constitution."1
The main opinion seems to recognize that it is "unfortunate" that this court "must . . . not only pass upon contempt before it, and that finally, but that it itself presents the charge." This "unfortunate" situation has been discussed before in this case (August 5, 1927) ante 623, 157 N.E. 769 at 788, 789, and its result could, in part, be corrected now by allowing the constitutionally provided system of checks and balances to operate, in which event it would be unnecessary for the court to disclaim, as it does in the prevailing opinion, that it "is not here arrogating unto itself a supreme position over either of the two other departments of the government."2
Gemmill, J., concurs in the dissenting opinion.
1 This is substantially the same provision found in the constitutions of most of the states, III Stimpson, Federal and State Constitutions 188. And see infra, for § 2, Art. 2, U.S. Constitution.
1 In State, ex rel., v. Sauvinet, supra, the court said:
"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 such 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. 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.
"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."
1 In State v. Magee Pub. Co., supra, under a state constitutional provision identical with our own, the court said:
"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." After reviewing the cases the court referred to the discussion in the Gompers case, supra, of the term "offenses" saying "the . . . fact that it is construed by the highest court in the land, makes the case of peculiar interest and of controlling force." The court further said:
"It has occurred to us that if the word `offenses,' as used in the Constitution, was intended to be limited to its narrow sense of embracing only strictly criminal or penal cases, in which the right to trial by jury, and to be confronted with the witnesses, and many similar characteristics attending such criminal or penal cases, were guaranteed, impeachment would not have been expressly excepted from its terms. That is certainly not an ordinary or strict criminal proceeding. The charge is not presented by indictment or information. Trial by jury is not guaranteed. A conviction therefor is not followed by either fine or imprisonment. And yet it was deemed advisable to expressly except it from the operation of the constitutional provision in question, which clearly indicates that it was never thought or intended that the term `offenses' should be so limited, but that it should cover a wider field."
2 In Ex parte Grossman, supra, the court said: "The argument is that the word `offenses' is used in the Constitution interchangeably with `crimes' and `criminal prosecutions.' But as has been pointed out in Shick v. U.S., 195 U.S. 65, 49 L.ed. 99, 1 Ann. Cas. 585, the term `offenses' is used in the Constitution in a more comprehensive sense than are the terms `crimes' and `criminal prosecutions.'"
1 The court also said preceding this conclusion:
"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. To exercise it to the extent of destroying the deterrent effect of judicial punishment would be to pervert it; but whoever is to make it useful must have full discretion to exercise it. Our Constitution confers this discretion on the highest officer in the nation in confidence that he will not abuse it. 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 we could conjure up in our minds a President willing to paralyze courts by pardoning all criminal contempts, why not a President ordering a general jail delivery? . . .
"Exceptional cases like this, if to be imagined at all, would suggest a resort to impeachment rather than to a narrow and strained construction of the general powers of the President."
2 The case of State, ex rel., v. Verage, cited by the court for some obiter dicta contained therein, expressly holds that a governor cannot pardon one committed to prison in punishment for civil contempt. While not deciding the point, the court also vaguely questions the pardoning power of the executive in either class of contempt. It may be noted that the well-reasoned decisions of the United States and the New Mexico Supreme Courts, Ex parte Grossman, supra, and State v.Magee, supra, had not been decided at the time State v.Verage, supra, was written. In the Verage case a dissenting opinion, in referring to certain obiter dicta in the main opinion said:
"It is intimated in the majority opinion that where a defendant is imprisoned in a contempt proceeding such as in the instant case, he can find relief by repentance and by asking forgiveness of the judge who sentenced him. No man who assumes a position righteously based on principle will ever be guilty of playing the part of a hypocrite. It was the great Luther who, when confronted with the charge of heresy, said, `Here I stand.' He was willing to die for principle. Judges are human beings, and, despite their good intentions, may be actuated by motives and resentment, and may make the cause of the court their own. Relief from such a situation is dispensed by the exercise of the pardoning power by the executive." *Page 732