CONCURRING OPINION OF
GALBRAITH, J.The petitioner was charged and found guilty of contempt of the Circuit Court of the First Circuit of this Territory. This court cannot in habeas corpus examine and determine whether or not the facts were sufficient in our opinion to constitute the offense or the sentence unduly severe, as might be done on appeal or writ of error if such process were available. The only question presented in this proceeding is one of jurisdiction or power of the court to impose the sentence complained of, the court’s jurisdiction over the subject matter and the person of the petitioner being admitted. Ex parte Fugihara Oriemon, 13 Haw. 102, 106, 107.
It is argued with great industry in the brief of the petitioner that the legislative had the power to define' what shall constitute contempt of court and prescribe the punishment in all legislative courts and that the Circuit Court of the First Circuit is such a court. This position may be admitted. The legislature has acted on the subject and I may concede, rightfully.
Section 257, Penal Laws, reads as follows:
“Contempt of Court.
“Sec. 257. Whoever, after trial by jury, is adjudged guilty of contempt of any judicial court, whether by open resistance to the process or proceedings thereof, or of any Judge or Justice thereof in the lawful exercise of his judicial functions; or by insulting, contemptuous, contumelious, disrespectful or disorderly language, behavior or act, or breach of the peace, noise or other disturbance in the presence or hearing thereof when in session; or by willful disobedience or negjlect of any lawful process or order; or by refusing to be sworn as a witness, or when sworn, to answer any legal and proper interrogatories; or by publishing animadversions on the evidence or proceedings in *252a pending trial tending to prejudice the public respecting the same, and to obstruct and prevent the administration of justice; or by knowingly publishing an unfair report of the proceedings of a Court, or malicious invectives against a Court or jury tending to bring such Court or jury, or the administration of justice into ridicule, contempt, discredit or odium, shall be punished by imprisonment at hard labor not exceeding two years, or by fine not exceeding five hundred dollars; provided, however, that every judicial tribunal, acting as such, and every Magistrate acting by authority of law in a judicial capacity, may summarily punish persons guilty of contempt, as follows:
“1. The Supreme Court, by imprisonment not more than three months, or by fine not exceeding one hundred dollars, or by both such fine and imprisonment, in the discretion of the Court.
“2. Any Circuit. Court, or any Court of Probate, by imprisonment not more than two months, or by fine not exceeding one hundred dollars.
“3. Any Circuit Judge or Police Justice, by imprisonment not more than thirty days, or by fine not exceeding fifty dollars.
“4. Any District Justice, Coroner, or other person acting in a judicial capacity by authority from any Court of Record, by imprisonment not more than ten days, or by fine not exceeding ten dollars.”
The Circuit Courts of this Territory are authorized by this statute to punish summarily persons adjudged guilty of contempt of court. It will be observed that some' of the acts set out in the statute would be under the common law direct contempt and that others would be indirect or constructive contempt, but the legislature in enacting the statute did not classify the offense according to the common law or otherwise, and I dispute the authority of this court to make a classification that the legislature did not make or authorize.
It is not profitable to* discuss the mittimus or its contents, since there is a judgment in the record before the court. The-petitioner was charged in the motion and affidavit- with contempt of court in the language of the statute (Sec. 257) and the judgment runs, “It is therefore the judgment of this court that you be and you are hereby adjudged guilty of contempt of court *253as set forth in the affidavit.” “This language fits exactly the words of the statute.” (In re Bush, 8 Haw. 223.)
But it is contended that under the definition given in the Law Dictionary and in the decisions of some courts, the acts charged in the affidavit would not constitute direct contempt but would be indirect or constructive contempt and that the legislature has taken away the power of the court to punish summarily for constructive contempt and therefore the judgment was void. This argument is based principally on the construction of the Act of August 20, 1888. This Act contains three sections (Session Laws 1888, p. 98). It is entitled “An Act to define and limit the authority of courts and judges to punish for contempt in certain cases.”
“Sec. 1. The publication of proceedings before any court or judge shall not be deemed to' be contempt, nor shall such publication be punishable as contempt.
“Sec. 2. Constructive contempts shall not hereafter be punishable as such.
“Sec/ 3. The terms of this Act shall apply to the publication of all proceedings in all courts, or before all judges, hitherto' had, now pending or which may hereafter be brought.”
There is no repealing clause with the Act and no reference is made therein that would indicate any intention on the part of the legislature to repeal any existing statute. Sec. 257, P. L., was in force at that time. The title of the Act shows that the intention of the legislature was not to repeal some existing statute but to “define” and “limit the authority.” The definition was given in the first section, i. e., publication of proceedings and the limitation in the second section, constructive contempt. The publication of proceedings before the court had been held to be contempt although not made so by Sec. 257. It was this construction that the legislature intended to restrain and this power limit. It is generally supposed that this Act resulted from certain decisions of this court rendered a short time previous. In Ackerman v. Congdon, 7 Haw. 31, the publication of pretended facts in relation to a civil case pending in this court, was held not to be within any. of the provisions of Sec. 257, but *254that aside from the statute it was a constructive contempt and punishable by the court. In Smith v. Aholo, 7 Haw. 115, it was held that the publication of the contents of a bill in equity filed in court was constructive contempt under the rule announced in the Ackerman case and punishable as such. I think that the constructive contempt in the legislative mind was that as defined in the Ackerman and Smith cases expressly held by the court not to- be within the provisions of Sec. 257.
This construction is supported by the decision of this court rendered at the February term, 1891, wherein the same contention was made by the petitioner as is made-in this case. The court said, “Were we to proceed alone upon the common law, the contention of counsel 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 another, as generally classified. By our penal law, however, they are all contempts and punishable either summarily or upon indictment, or in both ways.”
“The legislature in enactly the law of 1888 had in mind, without doubt, the then recent cases decided by this court in which certain publications, avowedly not of the character enumerated in the- Penal Code as contempts, were construed by the court to be contempt and these the legislature declared to be no longer punishable as such.” In re Bush, 8 Haw. 222, 223.
This decision interpreting and defining the intention of the legislature in passing the Act of 1888, was rendered when the court was composed of the late Chief Justice Judd, Justices McCully, Bickerton and Dole. Each member of the court at that time was closely identified with the interests of the islands and thoroughly familiar with their history. They were certainly in a better position to know the intention of the legislature in enacting the law of 1888, than any one of the present mem*255bers of tbe court. It seéms to me that the decision in the Bush case is controlling in this. I concur in the judgment of the Chief Justice remanding the petitioner.