*657Dissenting Opinion by
Chief Justice Hobson.The facts of the case are these: While one Clyde Collins with two others was driving a wagon along a street of Louisville, an automobile owned by another person collided with the wagon, breaking it and throwing out the men in the wagon. They repaired to a nearby drug store, where Collins was telephoning to his employers what had happened and also telephoning to the owners of the automobile when the defendant, Dr. Melton, and two attorneys, came in, They at once proceeded to induce Collins to bring a suit against the owners of the automobile. He told them he was not hurt, but they insisted that he was. The doctor examined him and found an injury upon his back. Collins explained to him that this was due to a previous accident. The doctor replied that that didn’t matter; they wouldn’t know, and proceeded to bandage Collins up. After obtaining a contract from Collins for the bringing of a suit, the three departed. The suit was brought a day or two later, and the facts coming to the knowledge of the judge, the information set out in the opinion was filed against Dr. Melton, and the two attorneys.
The proof on the hearing leaves no doubt that a fraudulent conspiracy was entered into between the two attorneys and Dr. Melton to induce Collins to bring a fake suit, they telling him that he would get a large amount of money, and arranging so that they would divide it with him. A clearer case of a criminal conspiracy to corrupt the administration of justice cannot well be imagined. The judgment against the two attorneys has not been appealed from, and this appeal only questions the correctness of the judgment against their eo-eonspirator, without whose aid the conspiracy would have been impossible of execution.
It is well settled that courts have an inherent power at common law to punish any act, whether committed in or out of their presence, which tends to impair, embarrass or obstruct them in the discharge of their duties; and the legislature, while it may regulate the procedure, cannot fetter the power. (In re Shortridge, 37 Am. St. Rep. 78; State v. Judge, 40 Am. St. Rep., 282; Hale v. State, 60 Am. St. Rep., 691; State v. Circuit Court, 65 Am. St. Rep., 90; In re Knaup, 66 Am. St. Rep. 435; Bradley v. State, 78 Am. St. Rep., 157; State v. Fred*658lock, 94 Am. St. Rep., 932.) Many other cases are referred to in those cited.
Contempts are divided into direct and constructive contempts, which are thus defined in 1 Chamberlain on Evidence, Section 255:
“The administrative power and dignity of the court necessarily involve the rights of punishing summarily for offenses against justice committed in the immediate presence and hearing of the judge, or so near as to interrupt proceedings before him. These are called direct contempts. An act by any person done in presence of the presiding judge which shows disrespect for his person or authority while acting in his official capacity is. an offense against the power and dignity of the court. The judge needs no evidence; he is himself, in such cases, the percipient witness; should pleadings be deemed advisable, they may be of the briefest and simplest description.
“Constructive contempts on the-other hand, may be defined as those arising from matters not occurring in court, but which tend to degrade or make impotent the authority of the judge, or which tend to impede or embarrass the administration of justice. In dealing with contempts not committed in the presence of the judge, the offender must be brought before the court by a rule or some sufficient process.
“In other words, while the power to punish in cases of direct contempts and constructive contempts is the same, the procedure is different; in cases of direct contempt the court acts spontaneously and commits the offender summarily; while in cases of constructive con-tempts the court, on information, issues a citation to the offender to show cause why he should not be punished for contempt. The information in a proceeding for contempt is sufficient if it clearly apprise the defendant of the nature of the charge against him, and no particular form is, in general, essential.” ' .
In Yates vs. Lansing, 6 Am. Dec. 290, as quoted in the opinion, the court, speaking of the power to punish for contempt, said:
“This power extends not only to acts which directly and openly insult, or resist the powers of the court, or the persons of the judges, but consequential, indirect and constructive contempts, which obstruct the process, degrade the authority, or contaminate the purity of the court.”
*659The decisions on the subject are clear and harmonious. Not a dissent or contrary view is to be found anywhere.
In 9 Cyc, 5-6, direct and constructive contempts are thus defined:
“A direct contempt is an open insult in the presence of the court to the person of the presiding judge, or a resistance or defiance in his presence to its powers or authority.
' “A constructive contempt is an act done not in the presence of the court, but at a distance, which tends to belittle, to degrade, or to obstruct, interrupt, prevent, or embarrass the administration of justice.”
To same effect see 7 Am. & Eng. Encyc. of Law, 28, note 50 Am. St. Rep. 272-285; State v. Shepherd, 99 Am. St. Rep., 624; Burdette v. Commonwealth, 106 Am. St. Rep., 916. In State v. Ives, 60 Minn., 478, the distinction between direct and constructive contempts is thus very clearly stated:
“Direct contempts are those committed in the immediate view and presence of the court. They are punishable summarily by order of the presiding judge, who takes judicial notice of such contempts, acts upon his own motion, and upon facts within his own knowledge, based upon the words or acts of the accused, or both, said or done in his presence or hearing. No formal trial is necessary. The court simply makes an order without proof, reciting what occurred in its presence or hearing, adjudging the person proceeded against guilty, and fixing’ his punishment. Gr. S. 1894, Sec. 6157. This is an arbitrary power born of necessity, which must be exercised with great prudence and always limited to cases of direct contempts. Constructive contempts are those which are not committed within the immediate presence of the court, but arise from matters not transpiring in court, but at a distance, of which it has no knowledge except as informed by others. While constructive con-tempts are punishable equally with those which are direct yet the procedure in the two cases is radically different. They cannot be punished summarily, but the ■court must be informed of the facts constituting the alleged contempt by affidavit or other evidence.”
In 2 Bishop on Criminal Law, after a discussion of the different kinds of contempt, summing up the matter in Section 261, the learned author says:
“On this question of contempts committed by per*660sons neither attached to the court, nor in its presence, we can discern no difference between those attached and those not, or between those present and those absent, other than arises from the very different degrees of ability to obstruct the working of the judicial machinery possessed by these differing classes. Since the whole doctrine of contempt of court grows out of the necessity for it to administer justice, the consequence must be that whenever any obstruction to its justice is laid before it, the judge must cause the same to be removed. And though ordinarily men in no way connected with the tribunal, either as officers or parties, cannot obstruct the course of its justice without going into its presence, yet circumstances may and do occur in which they can. If they take advantage of these circumstances, and do what tends directly to impede the course of justice, or to corrupt the justice itself, they should be dealt with summarily for the contempt.”
That the conspiracy of the defendants to have an action instituted upon grounds which were false, and which they knew to be false, carried out by the actual bringing of the suit, was the doing of that which “tends directly to impede the course of justice and to corrupt justice itself, ’ ’ there can be no question. That the courts at common law had the power to protect themselves from false and fraudulent suits must also be admitted. In Coxe v. Phillips, Hardw. 237, Lord Hardwick held a fictitious action to be a contempt of court and committed the parties and their common law attorney. See also R. J. Elsaw, 10 Eng. Com. Law, 272; Henkin v. Guerss, 12 East, 247; Gibson v. Tilton, 17 Am. Dec., 306. These were cases of feigned causes of action, and if the bringing of such an action is a contempt, how much more a contempt is it to bring a fraudulent action for the express purpose of corrupting justice?
The authorities cited by the court do not conflict with those above cited. A long quotation is made from Blackstone’s Commentaries, but it will be observed that Blackstone, among other things, says:
“Some of these contempts may arise * * * by anything in short that demonstrates a gross want of that regard and respect which, when once courts of justice are deprived of their authority, (so necessary for the good order of the kingdom) is entirely lost among the people. ’ ’
At the head of the discussion, after pointing out that *661contempts are either direct or indirect, and introducing the words quoted by the court, he says:
“The principal instances of either sort that have been usually punishable by attachment are chiefly of the following kind.”
It will thus be seen that he only undertakes to give the principal instances of either sort that have been usually punished. While Bishop uses in Section 243 the language quoted in the opinion, he also uses near .the close of the discussion the language quoted from Section 261. Section 252 closes with these words: “Among the particulars” then follow a number of more common instances of contempt. In Section 257 he discusses con-tempts in the absence of the court by other persons, and he winds up this discussion by Section 261. Neither Blackstone nor Bishop undertake to enumerate all the things that may be a contempt of court. They only give the commoner instances, and they both show that they do not intend to enumerate all the things that constitute contempt. The other authorities cited by the court are to the same effect.
The court refers to the act of Congress limiting con-tempts of court. If that act did not change the common law rule there was no necessity for it. It is known of all men that the passage of the act was due to certain contempt proceedings had in the Federal courts previous to its passage. We have no such statute in Kentucky; the common law as it stood prior to the fourth year of the reign of King James I, is in force in this State. (Ray v. Sweeney, 14 Bush, 1). Sections 1291 and 1292, Kentucky Statutes, are as follows:
“A court shall not, for contempt, impose upon the offender a fine exceeding thirty dollars, or imprison him exceeding thirty hours, without the intervention of a jury.” (See. 1291).
“In all trials by jury arising under this subdivision, the truth of the matter may be given in evidence.” (Sec. 1292).
We have no other statute modifying in any way the common law applicable to constructive contempts such as this. The only limitation upon the power of the court to punish constructive contempts is that provided in Sections 1295 and 1299, Kentucky Statutes:
“No court or judge shall proceed by process of contempt or impose a fine against any person who shall, by words or writing, animadvert upon or examine into the *662proceedings or conduct of such court or judge, by words spoken or writing published not in the presence of such court or judge in the courthouse during the sitting of the court. (Section 1295/Kentucky Statutes.)
“Nothing in this subdivision shall be construed to prevent any court, or judge thereof, from proceeding against any person writing or publishing a libel, or slanderous words, of and concerning such court or judge in relation to his judicial conduct in court, by indictment * * (See. 1299, Kentucky Statutes.)
All other constructive contempts are left as at common law except as provided in Sections 1291-1292 Kentucky Statutes, as to trial by jury and giving the truth of the matter in evidence. The common law being in force in this State, the question to be determined is not what this court, as now constituted, may think the rule on the subject ought to be; the sole question is what is the common law rule on the subject?. When the common law rule is settled, it must, under the repeated decisions of this court, be followed until changed by the Legislature. What the common law rule is as to the punishment of constructive contempt such as that before us, is shown by a long, harmonious and clear line of decisions, beginning in the earliest times and extending down to our time. No decided case sustains the conclusion of the court and no text writer sustains it when all that he says on the subject is read.
Three reasons seem to underlie the opinion of the court.
1. The transaction at the drug store took place when no suit was pending.
A conspiracy is usually carried out by a succession of acts, and the nature - of the conspiracy is to be determined by all that was done, and not by what took place on one occasion alone. The plastering up of Collins at the drug-store; the drawing of the contract by which the attorney was to receive a sum equal to one-half of the amount recovered, and the persuasion of Collins that he was injured and should bring a suit was the first step. This was followed by the actual bringing of the suit pursuant to the purpose of the conspiracy. Under a regulation in force in the Jefferson Circuit Court, suits are assigned to the different divisions in rotation, and this suit having fallen into the division presided over by Judge Field, the conspiracy culminated in the bringing of a false suit in his court. It is true that Dr. Melton did not *663write the petition, and did not file it in the clerk’s office with his own hands. This was done by his ally and fellow worker, the attorney; but Dr. Melton is as much responsible for the contempt as if he had filed the petition with his own hands; because it was all done by his associate pursuant to the plan mapped out between them and for the purpose of carrying out that plan. If A and B agree to kill C, and B loads a pistol and gives it to A, and A pursuant to the plan, kills C, B, though absent at the time of the killing, is equally liable as if he had fired the shot with his own hand. And so here as the original plan originally contemplated all that followed, and all that followed was done in pursuance of this plan to carry it into effect, Dr. Melton is equally responsible with the attorneys who were simply acting for him as well as themselves in what they did. After the suit was brought Dr. Melton, though he did not treat him professionally, directly and indirectly made efforts to get Collins to stand up to the action which had been brought and the attempt to foist the fraud upon the court. What he did at the drug store before the action was brought and what he did by himself and others after the action was brought, is all to be considered together; for it was part of one plan, and all done for one purpose. . •
This is a very serious case, and not without importance in the administration of justice. Hairsplitting distinctions should not be indulged to protect from punishment a man who is clearly guilty of an effort to corrupt public justice. Dr. Melton is a member of a learned profession. He did not act ignorantly, and it is especially important that the administration of justice should be protected against frauds devised by people of learning and position in the community. It is peculiarly important that the big fish should not escape the net of the law in which the little fish nearly always find themselves entangled.
2. Melton was not an attorney or officer of the court.
It is conceded by the court that the attorneys who filed the false suit were properly punished for contempt of court. While it is true that an attorney or other officer of the court is more reprehensible in a ease like this than a third person, it cannot be maintained that the court has not power to protect itself against third persons in a case like this, by punishing a contempt committed by them. The attorney may be disbarred for unprofessional conduct, but conduct that is a contempt in *664an attorney attempting to corrupt justice, is equally a contempt of court in a third person doing the same thing. Lord Hardwick made no distinction; he punished the parties as well as their attorney, and the precedent he set has never been criticised so far as I can find.
The same rule was followed in Lord v. Veazie, 8 How., 251. In Cleveland v. Chamberlain, 1 Black, 419, the appellant who carried on a pretended controversy by counsel whom he employed for the purpose of obtaining a decision injurious to the rights of third parties was held guilty of contempt. In like manner the bringing of a fictitious action to ascertain the legality of the issue of certain stock, was held a contempt of court (Smith v. Junction Railway Co., 29 Ind. 546), or the bringing of an action in the name of another person without his knowledge or consent (Butterworth v. Stagg, 2 Johns Cass. 291), or deceiving’ the court by falsely pretending to be sick (Welch v. Barber, 52 Am. Rep., 567), or filing a false answer (Martin Cantine Co. v. Warshauer, 28 N. Y. Sup., 139).
If the case referred to had come to trial and on the trial the facts had come to light, could it be maintained under the authorities above cited that Dr. Melton and his associates had not been guilty of contempt in bringing this fabricated action. And if this is true how can ie be maintained that they were not guilty of contempt in filing the petition and having the defendant in that action summoned to answer it? Has not the court power to protect its process from abuse for fraudulent purposes? Do not such abuses of the processes of the court destroy respect for it, no less than the bringing of a fictitious action or the use of the name of a party without his knowledge or consent?
The court says: “If there had been a suit pending in the Jefferson Circuit Court and Melton had attempted to manufacture evidence in this suit, or had endeavored to persuade a witness to give false evidence or conceal the truth, or had in any manner or form interfered with the due administration of justice in the court in which the case was pending, we would have no doubt of the right of the court in which the case was pending to proceed against him in the summary manner adopted by Judge Field in this case.”
If this is true, how is the bringing of the suit to be distinguished from subsequent steps in the action? And the proof shows that Melton did not cease his activities *665when the petition was filed, hut continued in one way and another to try to get Collins to stand up to it.
In Commonwealth v. Berry, 141 Ky., 477, Berry was indicted for obstructing justice and it was insisted for him that he could not be punished because the witness, he ran off, had not been subpoenaed, and in answer to this objection the court said the gist of his offense was not a contempt of court. No other question was involved in the case; and yet this is cited to sustain the opinion of the court. The other cases relied on by it support its conclusion no more than that case.
Mr. Bishop as shown above also takes the same view. The cases are numerous where persons who fabricated evidence in pending suits have been punished for contempt; and certainly no sound distinction can be maintained' between the fabrication of evidence in a pending suit, and the fabrication of evidence with a view to a suit and the immediate consummation of the plan by bringing the suit. The authority of the court and respect for it are as much destroyed in one case as the other. If the guilty parties may be punished for such conduct in a pending suit, how can it be maintained that their dismissal of the false suit shall purge the contempt and shield them from punishment for the contempt they committed before it was dismissed? Can “the purity of the court” be preserved if it has no power to protect itself from such frauds. If, as has been held time and again, the court has power to punish as a contempt the fabrication of testimony or the fabrication of a record, how can it be maintained that it has not power to punish as a contempt a deliberate fabrication of a case? If such bold attempts to pervert justice may not be summarily dealt with, how is the purity of the court to be maintained? Summary punishment in such cases is essential; the court is j^)t powerless to protect itself without calling to its aid the grand jury; but under all the authorities has inherent power to punish such contempts which strike at the very foundation of the administration of justice.
3. The conduct of Dr. Melton may be punished under an indictment for obstructing public justice.
If this were a sufficient reason for dismissing this case it is safe to say few prosecutions for contempt of court could be maintained for corrupting public justice. If a witness is suborned to swear falsely, the person knowingly inducing him to do so may be indicted for subornation of perjury. If a record is changed', the person *666so changing it may be indicted for forgery. If a witness is persuaded to leave the State, and justice is thus obstructed, the person inducing him to leave may be indicted for obstructing public justice. But the fact that in any case a crime has been committed, does not prevent the act being a contempt of court, and from being punished as a contempt of court. The books are full of illustrations. Bishop in Section 264 says, “Many acts are both contempt of court and indictable crimes.” In Bradley v. State, 78 Am. St. Rep., 163, the court said :
“Nor does it make any difference that the same act is indictable under the penal laws of the State. On this subject Judge Seymour D. Thompson, in an admirable article in 5 Criminal Law Magazine, says (page 155): “The power of the courts in this Regard being founded in the principle of self-preservation, it does not at all go to deprive them of it that the law has provided some other mode for punishing the offender; it is quite immaterial that offense is indictable. Courts are not obliged to trust the preservation of their dignity and authority to such weak agencies as information, indictment, and trial by jury, it may be, before some other tribunal where the success of the prosecution and the conviction of the offender may depend upon the zeal of a prosecuting witness, or the State’s attorney, or upon circumstances purely accidental.”
In Fisher v. McDaniel, 87 Am. St. Rep., 971, the court said:
“It is well settled that if an act is a contempt of court, the fact that the same act is indictable as a criminal offense does not take away the jurisdiction of the court to punish the offender as for a contempt.”
To same effect see Hale v. State, 60 Am. St. Rep., 691, People v. Tool, 117 Am. St. Rep., 198, State v. Faulds, 17 Mont. 140, Ex Parte Sabin, 131 U. S., 267, McCarthy v. Hugo, 135 Am. St. Rep., 270.
The books are full of cases where publications in newspapers have been punished as contempts in the absence of some statute such as 1295 Ky. St., although in all these cases the publication might have been indicted' as a libel. (Chamberlain on Evidence, Section 243). They are full of cases where the .tampering with a witness or the fabrication of evidence has been punished as con-tempts, although in all these cases an indictment for obstructing public justice might have been maintained. (Chamberlain on Evidence, Sections 246, 247, 248.) The *667false swearing by a witness has been punished as a contempt, although the witness might have been indicted for perjury. (Chamberlain on Evidence, Section 249); also the intimidation of a witness and the suppression of testimony, advising a witness to leave and the like. (Chamberlain on Evidence, Sections 249-252.) This court has followed the same course in French v. Commonwealth, 30 R., 98. French was fined $5,000 for causing a witness to leave and the judgment was affirmed by this court, although clearly French might have been indicted for obstructing public justice. The same rule was followed in Arnold v. Commonwealth, 80 Ky., 300, where a like indictment might equally have been maintained, and where it was earnestly insisted that under the statute the defendant could only be punished by indictment. These, two cases are not now overruled. But it is maintained that the court has no power to punish as a constructive contempt, the abuse of its process in a fabricated suit, although it has power to so punish the abuse of a subpoena in a real suit.
Though the acts committed by Dr. Melton constituted an indictable offense, still they may be punished as a contempt.
i£A contempt is an offense against the court as an organ of public justice; and the court can rightfully punish it on summary conviction whether the same act be punishable as a crime or misdemeanor on indictment or not. A conviction on indictment will not purge the contempt; nor .will a conviction for a contempt be a bar to an indictment. The offense, may be double and so are the remedy and punishment.” (Yates v. Lansing, 9 Johns (N. Y.) 417, 6 Am. Dec. 290, cited also in the opinion of the court herein.)
This is a well settled rule. 9 Cyc., 32 and cases cited: 7 A. & E. Enc. of L., 66 and cases cited; In re Fellerman, 149 Fed., 244 (cited in the opinion of the court); Arnold v. Commonwealth, 80 Ky., 300, 44 Am. Rep. 480; Hale v. State, 55 Ohio St., 210; 60 A. S. R. 691, 36 L. R. A. 254; Sherman v. People, 210 Ill. 552; Niches v. Judge, 130 Mich., 187, Rickets v. State, 111 Tenn., 380, Fisher v. McDaniel, 9 Wyo., 457, 87 A. S. R., 971; Bradley v. State, 111 Ga., 168, 78 A. S. R., 157; U. S. v. Debs, 64 Fed., 724; Chicago Directory Co. v. U. S. Directory Co., 123 Fed., 195, Ripon Knitting Works v. Schreiber, 101 Fed., 810; State v. Woodfin, 42 Am. Dec., 161.)
The sum of the opinion of the court is that the court *668thinks it will he a better practice that offenses snch as this should be punished by indictment rather than the summary process for contempt. It may be that the rule suggested by the court might be a proper one for legislative consideration; but by what power does the court establish it in the face of the common law authorities?
The slightest consideration of the origin of courts at common law will show that this never could have been the common law rule. At the first all litigants were heard before the King; the King heard litigants at court. As population increased,, the King could not hear all litigants, and so he designated certain officers to hear them in his stead. The sittings of these officers were therefore called courts of our lord the King, the officers sitting as the representatives of the King’ and in his place. .Any indignity to them was an indignity to the King. So it came about that to bring a feigned suit was a contempt of court, and it went without saying that a fraudulent suit would be a contempt; for certainly to knowingly attempt to foist a falsehood upon the King would have been regarded by him as a grave offense to his dignity; and what would be a contempt to the King would be a contempt to the officers sitting in his stead. In this way until this time the word “court” is used to designate the tribunal sitting for the hearing of causes; and these tribunals are protected now no less than they were originally by the power to punish for contempt.
For these reasons I dissent from the opinion of the court.
Judge Hannah concurs in this dissent.