(after stating the facts). It is contended that the circuit court was without authority to punish the petitioner for a criminal contempt, not committed in its immediate view and presence, without an affidavit or information bringing the facts to its knowledge first made.
Courts of record and general jurisdiction have inherent power to punish for contempts and the conferment of the power by statute upon a superior court of record is deemed no more than declaratory of the common law. Such court may go beyond the powers given by statute in order to preserve and enforce its constitutional powers when acts in contempt invade them. Rapalje on Contempts, § 1; art. 7, § 26, Constitution 1874; State v. Morrill, 16 Ark. 384.
This charge was of criminal contempt, being directed against the dignity, integrity and authority of the court, and constructive, not having been committed in its immediate presence.
In Brown on Jurisdiction, § 116, it is said: “In constructive contempts, the court can only act upon a showing of the facts invoking jurisdiction, and time should be given the accused to resist the charge.”
Our statute provides “contempts committed in the immediate view and presence of the court may be punished summarily; in other cases, the party charged shall be notified of the accusation and have a reasonable time to make his defense.” Section 722, Kirby’s Digest.
In York v. State, 89 Ark. 76, the court said: “As to the mode of procedure in cases of contempt not committed in the immediate view and presence of the court, the authorities are well agreed that the contempt must be brought before the court on affidavits of persons who witnessed it, or have knowledge of it.” Citing and quoting from State v. Henthorne, 26 Pac. 937.
But that proceeding was to punish as for contempt the violation of an injunction issued by the court, and the statute provides that it shall be done upon affidavit of breach of the injunction against the party committing the same. Section 3989, Kirby’s Digest.
Nevertheless, it is contended that that case was for a civil contempt, growing out of conduct in disobedience of process for the protection of the rights of a party to a judicial proceeding, and that the rule as to procedure therein does not control here.
The authorities all agree that in cases of criminal contempt of this kind the accused is entitled to a distinct notice of the accusation against him and must be given a reasonable opportunity to present his defense, or, as expressed in our statute, “shall be notified of the accusation and have a reasonable time to make his defense.”
There was no affidavit filed in this cause, setting out the publication and charge against the petitioner before the citation was issued, neither was there any statement of the facts constituting the charge made of record and signed by the judge in vacation, nor any order of the court, while in session, reciting that it had come to its knowledge that such publication had been made, setting it out, .and directing a citation to issue against the petitioner to show cause why he should not be punished for contempt for causing the publication and, if any such procedure was necessary, the petitioner did- not waive it, having objected to the jurisdiction of the court specifically on that account.
In the case of State v. Morrill, 16 Ark. 386, the publication made was in a newspaper in Arkansas County, reflecting upon the Supreme Court in relation to a decision made by it. An attorney of the court, living there, called the court’s attention to the publication, sending it a copy thereof and expressing an opinion that the court should take some notice of it. The court concluded that it was due to the honor and dignity of the State, and its own usefulness, not to pass the matter by without some official action, and to institute an inquiry as to whether its constitutional privilege had not been invaded by the publication and, “accordingly, an order was made, reciting the publication, and directing that the defendant be summoned to appear before the court at its present term to show cause why proceedings should not be had against him as for criminal contempt. No attachment, but a mere summons was issued in the outset, because the constitutional power of the court to punish as for contempt in such cases had not been determined, and was supposed to be not altogether free from doubt.” Such was the statement of the procedure therein. A like course was pursued by the Supreme Court of California, In re Shay, 117 Pac. 442.
A great many of the authorities hold that it is necessary to decide whether the charge constitutes a civil or criminal contempt in order to determine the procedure for its punishment, and many of them seem to hold that if the contempt arises in disobedience of a judgment or order in a civil suit for the protection of the rights of one of the parties therein in a judicial proceeding it is a civil contempt, and that the ¿ccused can not be proceeded against without an affidavit of the charge first filed.
It appears to us, however, and especially in this State, when the punishment is inflicted for disobedience to the order of, and to compel a proper regard for, the dignity and authority of the court making it, and the proceeding is in the name of the State against the accused, as in other criminal offenses and the fine and imprisonment are paid and discharged in the same way as fines and imprisonment inflicted in misdemeanor cases are satisfied, that there is in effect no difference.
The York case, supra, seems to be authority for this conclusion, and the United States Supreme Court appears to hold the same view. Gompers v. Buck Stove & Range Co., 221 U. S. 448.
The spectacle of a court of record and general jurisdiction being without power to initiate a proceeding to punish for contempt the author of publications in the press of the State reflecting upon the dignity, integrity and honor of the court and judges, and calculated to bring it and them into public disfavor and contempt, without an affidavit of some third person first made setting out the charge, would be pitiful in the extreme, and was not contemplated by our statutes and under our Constitution. The court would thus be rendered impotent, powerless to protect its authority and enforce its mandates and retain the respect and confidence of the people, for whose benefit it was organized and exists, except by the grace of some third-person.
Under our system of procedure, the accused is entitled to be informed with reasonable certainty of the facts constituting the offense with which he is charged and an opportunity to make defense thereto — his day in court. The different kinds of procedure have been outlined for the punishment of other offenses, but the statute, as to this one, says only that he shall be notified of the accusation and have a reasonable opportunity to make his defense.
There must be an accusation before the accused can be notified of it, and there is no reason why the court in session can not recite that the matter offending has come to its knowledge, setting it out in an order, and direct a citation thereon to show cause. This was done by the Supreme Court in the case of the State v. Morrill, supra, and was as effectual notice of the charge or accusation as an affidavit or information would have been. The summons and warrant of arrest are but to notify and bring the accused into court to answer the charges there made against him and the citation in this case, although it contains the whole matter constituting the offense with which the petitioner was attempted to be charged, was not a charge of record for him to answer, or an accusation within the meaning of the statute, the notice having been issued in vacation, by authority of the clerk alone, so far as the record shows, there being no order of the court authorizing the issuance of the citation, and without an order of the court first made setting out the charge, or a statement thereof made of record and signed by the judge of the court in vacation.
The petitioner could have waived this irregularity in the procedure by appearing in court and making his defense, without objecting thereto, but he did not do this; he raised the objection and insisted upon it throughout.
It may be said that, since he could have waived the affidavit, certificate or order of record constituting the charge or accusation, having been in court and exercised his right to defend, he thereby did do so, and that no prejudice resulted to him on that account. This is the view held by Chief Justice McCulloch and Justice Wood. But there is no difference between this and the case of a prisoner appearing and defending against a charge upon an insufficient indictment, when by objecting to it properly he may have it quashed, while, if no objection is made, he may be convicted and punished thereunder; and since objection was here made duly and in due time, the objection should have been sustained, and the court erred in overruling the motion to dismiss.
Hart and Frauenthal, JJ.,are of the opinion that the court was without power to initiate the contempt proceeding as attempted, and that it was necessary that an affidavit or information setting out the charge should have been first filed, within the doctrine announced in the case of State v. York, supra.
This opinion is, therefore, only authoritative as to the power of the court to initiate the proceeding; the Chief Justice, Mr. Justice Wood and the writer concurring in this view.
It follows, however, since the other two Justices are of opinion that the court was without power to proceed without an affidavit first made, and the writer that the court erred in refusing to dismiss the proceeding upon the grounds set out for the reasons as already expressed, that the judgment must be quashed. It is so ordered.