Ex parte Clancy

Harrison, J., concurring.

I concur in the judgment. The petitioner, by not questioning, concedes that the order of the superior court directing him to “ turn over or pay to the receiver, at its cost, four thousand dollars in assets, goods, wares, or merchandise, or its avails,” found by the court to have been' in his possession or under his control at the date of his adjudication in insolvency, was an order which the court had jurisdiction to make; and that it was made after a hearing, upon due *556notice to him thereof, and on an application therefor. His only attack upon this order is, that the finding of the court was not in accordance with the evidence. This, however, was but error, and no appeal having been taken from the order, it is conclusive upon the petitioner. Being a lawful order of the court, the disobedience thereof by the petitioner was a contempt of the authority of the court (Code Civ. Proe., sec. 1209, subd. 5); and the court having, under proper proceedings therefor, determined that he was guilty of the contempt charged, was authorized, under section 1219, to direct him to be imprisoned until he complied with the order. This judgment and order of the court was, by section 1222, “final and conclusive,” and from it no appeal is permitted. (Tyler v. Connolly, 65 Cal. 28; Ex parte Vance, 88 Cal. 262.)

By the constitution the superior court is vested with original jurisdiction of proceedings in insolvency; but in all matters pertaining to procedure in the exercise of such jurisdiction, the court is governed by statutory provisions. The court does not, however, in the exercise of this jurisdiction, become merely a special tribunal for carrying into effect the provisions of the statute, but the proceedings authorized by the statute are taken in it as the superior court, and when acting thereon it has the functions and powers of the superior court in all matters pertaining to its actions as a court. As such court, it has the power to determine and punish all contempts of its authority, even without the provisions found in the Insolvent Act giving it such authority.

“ Contempt ” is not only made a special title in the Code of Civil Procedure, wherein specific instances thereof are enumerated, and the mode and limit of punishment therefor are defined (secs. 1209-1222), but the right of protecting itself against contempts of its authority, and enforcing punishment therefor, is essentially inherent in every court of general jurisdiction; and any *557definition of acts constituting contempt, or limitation upon the mode or extent of punishment therefor, has its appropriate place in a statute relating to the jurisdiction and procedure of the court.

The Insolvent Act is a special statute adopted for a particular object; its title is “An act for the relief of insolvent debtors, for the protection of creditors, and for the punishment of fraudulent debtors.” It does not purport to prescribe the jurisdiction or limit the power of the superior court, but is merely a system of procedure in that court for accomplishing the objects specified in the title of the act. The incorporation in section 64 of this act of certain provisions concerning the power of the superior court relating to contempts cannot be construed as any limitation upon the power conferred by the Code of Civil Procedure, or as being a grant of such power to the court for the purpose of exercising its authority under that act. If there be any conflict between the two, the provisions of the Code of Civil Procedure, which professes to define the powers of courts and the effect of their judgments for contempt, must prevail over the provisions of the Insolvent Act, and the provisions of that act must be limited to the purposes defined in its title.

The contempt consists in the disobedience of a lawful order of the court. It is the dignity of the court, or the majesty of the state as represented by the court, against which the offense is committed. The character of the offense is the same, whether it be committed by disobeying an order made in proceedings in insolvency, or one made in probate, or in any civil action. Any law for the punishment of this offense is necessarily of a general nature, and must have a uniform operation. It was not competent for the legislature to provide a different procedure for contempts of the superior court committed while in the exercise of its jurisdiction in proceedings for insolvency from that which is provided *558for those committed while it is exercising its jurisdiction in any other matter.

The clause of section 64 of the Insolvent Act which provides an appeal shall be allowed to the supreme court from any order adjudging any person guilty of contempt” is in conflict with the provisions of section 1222 of the Code of Civil Procedure, which declares: “ The judgment and orders of the court or judge made in cases of contempt are final and conclusive.” To give effect to this provision of the Insolvent Act is to permit an appeal from judgments of contempt in one class of cases which, under the general law applicable to con-tempts, is denied to all other judgments for the same offense. Such construction would except cases arising in insolvency from the uniform operation of this general law, and thereby destroy its uniformity, and violate the provisions of section 11, article 1, of the constitution. (French v. Teschemaker, 24 Cal. 544; Omnibus R. R. Co. v. Baldwin, 57 Cal. 160; Miller v. Kister, 68 Cal. 142; People v. Henshaw, 76 Cal. 445.)

De Haven, J., concurred in the views expressed in the foregoing opinion of Mr. Justice Harrison.