Opinion of the Court, by
Judd, C.J.On the sworn information of the Attorney-General, the respondent was cited to appear before the Court, to show cause why he should not be adjudged guilty of a contempt of Court for the publication of an article in a newspaper published in Honolulu, called “ Ka Leo o Ka Lahui,” in its issue of February 5th, instant.
On the 11th of February respondent moved that the rule be discharged on the grounds :
“ 1. The act complained of in the petition, upon which said rule is based, is not, in law, a contempt of Court for which this Court has power to punish this respondent.
“ 2. This Court cannot legally punish as for a. contempt a publication of the nature of that herein complained of, made in a newspaper and not done in the immediate presence of the Court.
“ 3. No publication out of Court in relation to the Court or to any of its individual members amounts, in law. to a contempt, and the same cannot be punished as such.
*222“4. It is nowhere alleged or intimated in said petition, or in the rule issued in pursuance thereof, that said publication was made while this Honorable Court was sitting as such, nor that said publication was designed, or calculated, or had any tendency to obstruct, embarrass or prevent the due administration of justice.
“5. If this respondent were in fact the publisher of, or legally responsible for said publication, which he doth in no wise admit to be true, then such fact and offense involved therein are matters concerning which this respondent is by the Constitution and the statute law entitled to a trial by a jury of his peers.”
By the Court.
The Legislature of 1888 enacted that thereafter constructive contempts should not be punishable as such. It is claimed by the attorney for the respondent that the publication of the article in question, if a contempt at all, is a constructive contempt, and is therefore not punishable.
Contempts are generally divided by jurists into the class.es-of direct and constructive; direct being those committed in the presence of the Court, and constructive being those acts which the Court would have to construe by some process of reasoning to be equivalent to a direct contempt. But the authorities agree in the main that in order to sustain the character of a constructive contempt, the publication must have a tendency to obstruct or hinder the progress of justice in some particular case.
Were we to proceed alone upon the common law, the contention of the counsel for respondent would seem to be'sustained by authority. But we have a statute which, so far as we have learned,. is peculiar to this country, and which describes and enumerates certain acts and circumstances as contempts and makes them punishable upon indictment and conviction by a. jury and also summarily. These acts are not classified in the statute as direct and constructive contempts. Some of these acts would fall under one head and some under the other, as *223generally classified. By our penal law, however, they are all contempts and punishable either summarily or upon indictment, or in both ways.
The Legislature in enacting the law of 1888 had in mind, without doubt, the then recent cases decided by tbis Court in which certain publications, avowedly not of the character enumerated in the Penal Code as contempts, were construed hy the Court to be contempts, and these the Legislature declared to be no longer punishable as such. The first and third sections of the act of 1888 strengthen this view.
The publication in question declares, in substance, that certain Justices of this Court now in office are guilty of an unexpiated crime, and are therefore unworthy to sit in judgment upon others, thus attacking the Justices in the exercise of their judicial functions. This language fits exactly the words of the statute It is “publishing of malicious invectives against a Court tending to bring such Court (and) or the administration of justice into ridicule, contempt, discredit or odium.” We overrule the motion to discharge the Rule.
Respondent to answer.