(dissenting) — I, dissent from the majority opinion in so far as it affirms the judgment of the trial court finding the attorney, Herbert H. DeWolfe, guilty of contempt and imposing upon him a fine of $100, for the reason that I do not think said court had any jurisdiction to make such an order. I take it as conceded that any contempt that may have been committed by said attorney was not committed in the immediate view and presence of the court, as contemplated by Bal. Code, § 5800. This being true, the only method of procedure for the court to adopt, as against said DeWolfe, was that provided by Bal. Code, § 5801, which reads as follows:
“In cases other than those mentioned in the preceding section, before any proceedings can” be taken therein, the facts constituting the contempt must be shown by an affidavit presented to the court or judicial officer, and thereupon such court or officer may either make an order upon the person, charged to show cause why he should not be arrested to *525answer, or issue a warrant of arrest to bring sucb person to answer in the first instance.”
There has been no attempt to proceed under said section. The only affidavit filed was made by one A. L. Brown, and. contained charges of contempt directed only against defendants other than said attorney. In fact, the attorney’s name was not even mentioned. The only possible reference to him was in the following language:
“That this affiant is informed and believes said defendants violated said restraining order after consultation with the city attorney of said city and with full knowledge that their action was in direct violation of the order of this court.”
This language is just as susceptible of an interpretation that said defendants violated said order after being fully and correctly advised by said city attorney as to their obligations and duties to the court under said restraining order, as an interpretation that he knowingly advised them to wrongfully and wilfully violate the same. It is impossible to deduce from said language any intelligent or accurate idea as to the character of the advice actually given. With the utmost respect for the learned and honorable member of this court who wrote the majority opinion, I feel constrained to suggest that this language scarcely justifies his conclusion stated in these words:
“When the contempt was admitted in the presence of the court and was sufficiently set forth in an affidavit already on file against other parties, we do not think the court exceeded its jurisdiction or otherwise erred in making the attorney a party to the proceedings.”
The only showing in the record as to any admissions made by the attorney appears from the following extract, taken from an order appearing in the court journal:
“The plaintiff’s motion to enjoin Attorney DeWolfe as respondent to the cause is granted. The court after finding defendant in contempt, imposes fine of $1 upon each of the defendants, except Attorney DeWolfe, exception is allowed. *526Attorney De Wolfe in, open court states that upon his advice defendants violated restraining order, and he is fined $100.”
The record before us contains a statement of facts duly certified, but it makes no reference to any such statement as being made by Attorney DeWolfe, in response to any charge preferred against him, or otherwise. The only inference that can be drawn from the entire record is that this statement, if made, was so made by the attorney when the other defendants were adjudged guilty, for the purpose of showing mitigating circumstances in their behalf. I do not wish to be understood as even intimating that, if said DeWolfe, without the presence of the court, advised his clients to violate said restraining order, he was not guilty of contempt; but do express the opinion that the question of his guilt was not before the court, for the reason that it did not have jurisdiction under any affidavit to proceed against him. The question now before this court is, not whether he was or was not guilty of contempt, but whether the trial court has ever obtained jurisdiction to proceed against him for an alleged contempt committed without its immediate view and presence. He has at all times objected to the jurisdiction of the court, and as to him this objection should have been sustained. In In Re Coulter, 25 Wash. 526, 65 Pac. 759, this court, after referring to said §§ 5800 and 5801, says:
“. . . ‘before any proceedings can be taken therein, the facts constituting the contempt must be shown by an affidavit presented to the court . . . ’ While the power to punish for contempt is inherent in all courts, as such power is essential to the preservation, of order, the due enforcement of the judgments, orders, and processes of the court, and, consequently, to the due administration of justice, it is, nevertheless, in its nature, arbitrary, capable of abuse, and, when exercised, affects either the property or the personal liberty of the individual against whom it is directed. And while the legislature may not lawfully take away this power altogether, it can, undoubtedly, to prevent its abuse* *527and to preserve the just rights of the individual, reasonably limit its exercise; . . . When, therefore, the lower court proceeded to punish the petitioner without following the prescribed procedure, it proceeded illegally, and without authority of law. It is no answer to say that the facts, were brought before the court by the return of the officer. If the court may derive knowledge of the violation of its order from this source, it may, from any other source; even the oral statement of a stranger to the proceedings. More than this, the statute is imperative. It has made an affidavit essential-to set the powers of the court in motion, and, although the rights of the parties may be as well protected in a procedure had upon the return of the officer as in a procedure had upon an affidavit, yet the courts may not alter the statute.”
In State ex rel. Martin v. Pendergast, 39 Wash. 132, 81 Pac. 324, this court says:
“The appellant contends that he was adjudged guilty of contempt for counseling and advising a violation of the order of the court of May 17th, above referred to, and that the judgment against him is erroneous for several reasons: Pirst, because no such contempt is shown by the record; second, because the order of May 17th was a nullity, and no> contempt could arise from a violation thereof; and, third, because such contempt, if any, could only be prosecuted by affidavit. Passing over the first reason assigned, the second and third are no doubt well grounded. The order of May 17th was not made in any pending action or proceeding. There was no pleading, no process, and no pretense of jurisdiction to make the order. Again, if counseling a violation of such order were a contempt at all, it was a contempt committed without the presence of the court and could only be prosecuted by affidavit.”
See, also, State v. Canutt, 26 Wash. 68, 66 Pac. 130.
In my opinion the judgment of the superior court as to the defendant DeWolfe should be reversed, for the reason that it was entered without jurisdiction of said defendant and was, as to him, absolutely void.
PuLXBETOET, J., COUCUTS with CbOW, J.