I concur in the conclusion that in this character of contempt cases the court can initiate the proceedings, and that its jurisdiction to punish, for contempt does not depend on the filing of an affidavit or information by some third person, as in cases of civil contempt. York v. State, 89 Ark. 76. The correct view is aptly stated as follows by the New York court in a case involving the construction of a statute identical with our statute on the subject:
“The statute does not require that the charge should be made upon affidavit or other sworn testimony. The charge may undoubtedly be made by the court, as it is alleged that it was in this case, and the charge is clearly specified in the order to show cause and a time appointed for showing cause, and the relator was duly notified of the accusation, and an opportunity given to him to make his defense. * * * It is an error to suppose that in a case like the present the jurisdiction of the court to make the order to show cause depends upon the presentation of affidavits or other evidence to substantiate the charge. The order contains the charge, and I apprehend that, in practice, such evidence will rarely be furnished, as it is not made the duty of any officer connected with the administration of justice, or any other person, to make charges or accusations of facts constituting criminal contempts. It is a duty imposed upon all courts to preserve order in court, and see to it that its proceedings are not interrupted, or that the respect and authority due to the court are not impaired. And the statute, to enable the court to discharge this duty, confers the necessary power upon the court. The court may act upon its own motion and make the accusation, causing the party accused to be notified, and giving him a reasonable time to make his defense. ” Greeley v. The Court, 27 Howard’s Practice, 14.
In addition to the case just quoted from the following authorities sustain this view: In re Cheeseman, 49 N. J. Law, 115; Telegram Newspaper Co. v. Commonwealth, 172 Mass. 294, 44 L. R. A. 159; Ex parte Steinman, 95 Pa. St. 220; In re Moore, 63 N. C. 397; Langdon v. Judges, 76 Mich. 358; People v. Wilson, 64 Ill. 195; State v. Frew, 24 W. Va. 416; State v. Shepard, 177 Mo. 203.
The cases which hold to the contrary entirely ignore the distinction between civil contempts, where the court can not proceed unless so moved by a party aggrieved, and criminal contempts, where only the maintenance of the court’s dignity is involved. In the latter class of cases it is primarily the duty of the court itself to see that it is not brought into public contempt by words or conduct of individuals. It is not bound to wait for some third person to initiate proceedings, for it would be anomalous to say that the first duty rests with the court, and yet it must wait for some individual to institute proceedings before the court can take any steps to maintain its own dignity. I think no one can read Judge English’s opinion in the Morrill case (16 Ark. 384) without being impressed with the idea that such was the view of the court on the subject. Indeed, a careful analysis of the decision leads to the conclusion that that was what the court regarded as the proper- practice, for the court did not treat the letter of the attorney as the basis of the proceedings. The court proceeded entirely on its own initiative in bringing the accused to the bar of the court to answer for the alleged contempt.
In Cossart v. State, 14 Ark. 538, Chief Justice Watkins used the following language: “The power of punishing summarily and upon its own motion contempts offered to its dignity and lawful authority is one inherent in every court of judicature. The offense is against the court itself, and if the tribunal have no power to punish in such case, in order to protect itself against insult, it becomes contemptible, and powerless also in fulfillment of its important and responsible duties for the public good.”
That case was a proceeding to punish as for contempt a contumacious witness who refused to testify in a case pending before the court, but the learned Chief Justice was attempting to lay down a principle which is applicable to all cases involving, not civil rights, but only the dignity of the court itself.
Since the majority of the court hold that the court can initiate proceedings of this kind, I think it should follow that when an accused has been given due notice, as in this case, of the particular form of his alleged contempt, the ends of justice are fully met, and that after he has been brought into court under such citation, none of his rights have been prejudiced by the court’s failure to énter of record an order reciting the charge. The accused when he came into court had due notice of the charge which he was called on to meet, and that is all the statute required. The citation had served its purpose, in bringing the accused into court, and, having had notice of the charge, he was not prejudiced by the fact that it had not been previously entered on the record during the sitting of the court. The court could have ordered a new citation, and can do so yet. Therefore no prejudice resulted from the proceeding without a new citation. It is making too strict a rule to say that the court must make an order of citation in advance before it can proceed to punish for contempt.
As to the amount of punishment inflicted, I am of the opinion that the statutory limitation applies, and that, as the contemptuous conduct was not committed in the immediate presence of the court and did not consist'of disobedience of the process of the court, the punishment should not have exceeded that provided by the statute.
Wood, J.: I concur.