I do not indorse the reasoning of the majority of the court, nor do I agree to the conclusion reached; and inasmuch as the matters involved are of importance, and as the opinion makes a radical departure in our jurisprudence, I deem it proper to express my views on the question involved. The following is a brief statement of the case. The Honorable J.G. Russell, judge of the District Court of Smith County, during a sesssion of his court, found relator, John M. Duncan, guilty of contempt in the presence of the court, and had entered against him the following judgment: "Ex Parte Hec. F. McCord. March 21, A.D. 1901. Whereas, on March 16, 1901, in the above styled cause, wherein said Hec. F. McCord applied for license to practice law in all district and inferior courts of this State; and whereas, on the said March 16, 1901, this court appointed S.A. Lindsey, J.M. Edwards, Cone Johnson, T.B. Butler, and John M. Duncan as a committee to examine said applicant on Wednesday, March 20, 1901, at 9 o'clock p.m. of said day; and whereas, at said time only one of said committee appeared, to wit, Cone Johnson; and whereas, upon the failure of said other members of the committee to appear, the court ordered the clerk of this court to issue an attachment for said J.M. Edwards, S.A. Lindsey, T.B. Butler, and J.M. Duncan to compel their attendance to examine said applicant *Page 675 at 9 o'clock a.m., March 21, 1901; and whereas, at said time the said John M. Duncan appeared in open court, and said to the court, in an angry manner, that he declined to serve on said committee, and, upon the court insisting that he serve on said committee, he, said Duncan, said he proposed to be treated like a gentleman, and not have an attachment served upon him to compel his attendance, and that he treated the court like a gentleman, and that the court had to treat him as one, and the court said that he would enter a fine against him for said conduct and language, and thereupon said Duncan replied that the court could fine him, and that if he didn't have the money to pay it with he could go to jail: It is therefore considered by the court that said John M. Duncan, by reason of above conduct and words, is in contempt of this court, and that he be fined in the penal sum of $50. It is therefore ordered, adjudged, and decreed by the court that said John M. Duncan be, and he is hereby, fined in the penal sum of $50, and that the State of Texas do have and recover of said John M. Duncan the said penal sum of $50, and the clerk of this court is hereby ordered to issue a warrant, directed to the sheriff or any constable of Smith County, Texas, commanding him to arrest the body of the said John M. Duncan, and commit him to the jail of Smith County, Texas, in default of the payment of said fine; and it is further ordered that execution may issue against the property of the said John M. Duncan for the amount of said fine and costs." From that judgment relator sued out an original writ of habeas corpus to this court, and says that he ought to be discharged from the judgment of contempt entered against him, because, as he insists, the District Court had no power to render the particular judgment which was rendered; that is, that his acts and conduct in the District Court room were not a contempt of court. I do not understand him to claim that the matters as adjudicated were not a contempt, but he proposes to contradict the recitals on that judgment, and also to show that other things happened anterior to the judgment which stripped his conduct of the element of contempt. And, in order to support his contention, he has brought to this court a number of affidavits, principally from members of the bar, contravening in some respects the recitals of the judgment, as also showing other matters dehors the record. For a fuller recital of the facts, see opinion of the court. A majority of the court, as I understand it, agree to his contention; and it seems to me they go further, and hold that the court did not have jurisdiction of his person.
Inasmuch as it occurs to me that the court in its opinion has overlooked certain well-recognized principles of the law which pertains to contempts in the presence of the court, and the power of this court on habeas corpus to examine into and review the action of the court adjudicating contempt, I deem it proper, at the outset, to state briefly the principles which govern such cases.
All courts of general jurisdiction have the inherent power incident to their very existence as courts to punish contempts committed in *Page 676 their presence. Ex Parte Degener, 30 Texas Crim. App., 572; Ex Parte Terry, 128 U.S. 306, 9 Sup. Ct., 77, 32 L.Ed., 405; Church, Hab. Corp., sec. 309; Rap., Contempts, sec. 1. In this State, as to attorneys at law (who are regarded as officers of the court), the power to punish for contempt is vested in the courts by statute. Rev. Civil Stats., art. 262. In all cases of contempts in the presence of the court, the judge bases his action on his own personal knowledge; that is, the judicial eye witnessing the act. The judicial mind comprehends all the circumstances of aggravation, provocation, or mitigation, and his judgment does not require any extraneous support to render it effective. Crow v. State, 24 Tex. 12; Ex Parte Terry,128 U.S. 289, 9 Sup. Ct., 77, 32 L.Ed., 405; In re Wood, 82 Mich. 75, 45 N.W. Rep., 1113; Ex Parte Wright, 65 Ind. 504; Middlebrook v. State, 43 Conn. 257; State v. Woodfin, 27 N.C. 199. According to some of the authorities and in consonance with the better practice, the court in finding a contempt should adjudicate the facts constituting such contempt. 4 Enc. Pl. and Prac., p. 798, and note 2 for authorities; Church, Hab. Corp., sec. 316, and note. In this State it is expressly held that the judgment must recite the facts constituting the contempt, and the commitment must also contain such facts. Ex Parte Robertson, 27 Texas Crim. App., 628; Ex Parte Kearby, 35 Tex.Crim. Rep.; Id.,35 Tex. Crim. 634. While the writ of habeas corpus is a remedy in matters of contempt, it is a collateral attack on the judgment of the court finding the contempt, and it is the received doctrine that courts, under the writ, will not act as appellate tribunals to review errors. Jordan v. State, 14 Tex. 436 [14 Tex. 436]; Ex Parte McGill, 6 Texas Crim. App., 498; Rap., Contempts, sec. 157; Ex Parte Renshaw, 6 Mo. App., 474. It is conceded, however, that courts of last resort exercise an enlarged jurisdiction — that is, greater than courts of co-ordinate jurisdiction with reference to the judgment of each other — and may ascertain the facts which render the judgment of contempt void for want of jurisdiction.
As a general proposition, before the court will exercise jurisdiction to discharge a party on habeas corpus from a contempt proceeding in another court, the judgment must be void for want of jurisdiction over the subject matter or over the party. In some jurisdictions courts will inquire whether the court had the power to render the particular judgment it did; that is, whether the matter was in fact a contempt, and our own courts have adopted this doctrine. Ex Parte Degener, 30 Texas Crim. App., 572.
In the United States courts, and in most of our State courts, the judgment of a court finding a party guilty of contempt imports absolute verity, and can not be questioned or contradicted in its findings on writ of habeas corpus by any other tribunal. Ex Parte Terry, 128 U.S. 289; Ex Parte Stearns,77 Cal. 156; Ex Parte Ahmen, 77 Cal. 198; Ex Parte Acock,84 Cal. 50; Whitten v. State, 36 Ind. 311; Smith v. McClendon,59 Ga. 523; Ex Parte Bergman, 3 Wyo. 396; *Page 677 People ex rel. v. Hinckly, 96 Ill. 68; Church, Hab. Corp., secs. 316, 317, and notes, secs. 336, 340; Rap., Contempts, 155. The general rule as to the impeachment of judgments in a collateral proceeding is the same in this State. Fitch v. Boyer, 51 Tex. 336 [51 Tex. 336], and authorities there cited. Here, however, this question has never been, as I understand it, decided as to matters of contempt. In Degener's case it does not appear that the judgment recited the facts constituting the alleged contempt. If it had so found, as to that particular matter, the court would have simply held that the facts therein recited did not constitute a contempt. It will be safe to say that in matters of jurisdiction which render the judgment absolutely void, our courts hold that the fullest latitude of investigation will be allowed. This is what I conceive to be the doctrine of Parker's case, 35 Texas Criminal Reports, 12, which involved the question whether or not the judgment was rendered in term time.
Applying these well recognized rules of law to the question here involved, let us see how the relator stands as to the judgment of the court finding him guilty of contempt. I take it that no one will seriously contend that the District Court did not have jurisdiction of the subject matter at the time this contempt arose; that is, authority to appoint a committee of attorneys to examine the applicant McCord for license to practice law, and to require their attendance and service. It is contended, however, that the jurisdiction did not properly attach, because no time was fixed in the order; but the parties were present, including the relator, and knew as to the time set, and this at most was a mere irregularity. It may be conceded that the court did not have authority to order an attachment for the relator on his failure to be present at the examination on the night of the 20th of March, and that he was illegally attached and brought before the court on the morning of the 21st of March; but when he was brought into the presence of that tribunal he was then before the court in regular session, and the court could require of him to discharge the duty, which had previously been imposed on him as an officer of the court, of examining the applicant for license. It occurs to me he could no more decline to join the committee and make the examination than could a witness in a case pending in court who had been legally attached on an order of the court, when brought before it, refuse then to testify as a witness. Ex Parte Ahmen, 77 Cal. 201, and authorities there cited. Suppose a witness in such case should not only refuse to testify, because he had been brought into court under an illegal process, but should proceed to bandy words with the court, to tell the court that it must treat him as a gentleman, etc. This, according to the judgment of the court, is what the relator did. He peremptorily refused to go on with the examination. He told the court that he proposed to be treated as a gentleman, and not have an attachment served upon him to compel his attendance; that he treated the court like a gentleman, and that the court had to treat him as one. Not only so, he did this in an angry manner. *Page 678 If this was not a contempt of court, then what was it? I understand, however, the majority opinion concedes that the judgment recites a contempt, but proposes to permit this to be controverted and overcome by affidavits of bystanders, agreed to be used as evidence by the Assistant Attorney-General, as to what actually did occur, and also by affidavits as to what had previously occurred, which it is claimed stripped the conduct of the relator at the time of all contempt. If the first proposition be correct, then we have this strange anomaly (1) that the court is the judge of contempts committed within its presence; (2) that it is required, under the decisions of this court, to recite its findings of contempt in the judgment; and then the facts so found and adjudicated can be controverted and overcome by evidence presented in a collateral proceeding for the first time in this court. This is not only making of this court a court of review, but a court for the trial of matters of contempts de novo, and that on ex parte affidavits. I am not willing to give my assent to any such doctrine, and if the views expressed in the majority opinion shall become the settled law in this State, it will emasculate the courts of all power as to contempt.
While the judgment finding a contempt may not be contradicted in its recitals of fact, extraneous facts explanatory of the judgment and circumstances surrounding it, not in contradiction thereof, may be shown; and I am willing to go to this extent, because I believe it is in accord with sound principle and the authorities on the subject. Cudday, petitioner, 131 U.S. 280; Church, Hab. Corp., sec. 366, and notes. These environments or antecedent facts, so far as I have read the affidavits, only show there was some misunderstanding as to whether or not relator was excused or would be excused from the examining committee, which involves the illegality of the attachment issued on the 20th of March, and which brought him into court on the 21st of March. But, as stated before, it does not matter how he was brought into court; the court then had jurisdiction of him, and he was bound to be respectful to the court. But even if, in violation of all precedent, it should be held that the recitals in the judgment itself of the facts constituting the contempt can be contradicted, then I maintain they have not been contravened. I take it that, if the record does not speak the truth, then the affidavit of the relator would show clearly wherein it was false. It will be noted in this affidavit the relator does not claim that the court excused him from serving on the committee, but merely says, "I told the court at the time of my appointment that I could not serve on an examining committee to meet at night, and gave the court my reasons for it." He admits in his affidavit, as is recited in the judgment, his refusal to proceed with the examination. While not disclaiming anger, as is adjudicated by the court, he says he was indignant at his treatment; nor does he deny bandying words with the court on the occasion. The court finds that he stated the court had to treat him like a gentleman, while he states that he expected the court to, or the court must treat him as a gentleman. If this affidavit contains *Page 679 any essential variance as to the facts adjudicated by the court, then I fail to see it. I would not in this respect be understood as holding that, where a member of the bar or others may be illegally brought before the court, they have not the right at the proper time in a respectful manner to ask an explanation of the court as to the reasons which caused such action, and of uttering, if need be, a respectful protest; but I do not believe it accords with the dignity of the courts, and the respect in which they should be held, that their authority should be defied in threatening and menacing language and in angry tones. For aught that appears, if relator in the first instance had inquired of the court as to why he had been attached, and had done this in a respectful manner, the court would have either heard him then or have arranged to hear him subsequently. But it does not occur to me, from his own statement, that this was his conduct. On the contrary, in every essential respect it accords with the judgment of the court; and certainly it must be held, if the judgment of the court finding the contempt is to be nullified and destroyed by some other tribunal, it must be upon a clear case, showing that the matter could not under any circumstance constitute a contempt.
The majority opinion goes further than any case of which I have any knowledge. Degener's case, supra, went to the extent of holding that, where the judgment was silent as to the facts constituting a contempt, same might be inquired into, and if ascertained that they could not under any circumstances constitute a contempt, the court would hold the judgment void on the ground that the court did not have the power to render the particular judgment it did. But this case goes further and authorizes in a collateral proceeding the action of a court adjudicating the facts constituting a contempt to be contradicted by evidence dehors the record, and although the affidavit of the relator in effect does not contradict the recitals of the judgment, still they hold that the judgment is void and of no effect. That is, it is held relator had the right to defy the authority of the court in threatening and menacing language, and to justify his action on the ground that he had been brought there illegally. I believe in the rights of the American citizen; I believe in the dignity and manhood of the members of the legal profession; but I believe in the majesty of the law; and these rights, whether of life, liberty or property, and whether assailed by the illegal acts of government or by the lawlessness or violence of the individuals, will be best upheld and safeguarded by preserving the authority of the courts — for upon these depends the very existence of the tribunals themselves. That a judge here and there may act corruptly and abuse his high prerogative, is no reason why courts should not possess the power to adjudicate contempts committed in their presence. "Wherever power is lodged, it may be abused; but this forms no solid objection against its exercise. Confidence must be reposed somewhere, and, if there should be an abuse, it will be a public grievance for which a remedy may be applied by the Legislature, *Page 680 and is not to be devised by courts of justice." Ex Parte Kearney, 7 Wheaton, 38. It is not intended to intimate that the judge acted corruptly in this case; but, even if that be conceded, it would afford no reason why the authority of the court to punish for contempts should be destroyed. This is a shield and protection for the judiciary, which, in its turn, becomes a safeguard to all.
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