CONCURRING OPINION.
WOODSON, J.In my opinion the petitioner should be discharged for the reason that section 28 of article 2 of the Constitution of 1875 guarantees to every person the right to a trial by jury in all civil and criminal cases.
*710In my opinion, the conduct of the petitioner, in answering the questions propounded to him, as he did, was not in contempt of court, as provided for and defined in section 3881, Revised Statutes 1909. That section after granting to all courts of record the authority to punish for contempt, proceeds to define what contempt is, and among other things, in the fifth clause thereof, it is provided that the contemptuous and unlawful refusal of any person to be sworn as a witness, or who when sworn, refuses to answer any legal and proper interrogatory, shall be guilty of contempt within the meaning of that article.
The petitioner did not refuse to be sworn, but upon the contrary, the record shows that he was duly sworn and testified in the case; nor did he contemptuously or unlawfully refuse to answer any question which was properly propounded to him, but upon the contrary he, in a dignified and respectful manner, answered all interrogatories propounded to him. It necessarily follows therefrom that the petitioner was not guilty of contempt of court, as defined in said statute.
That brings us to the consideration of the character of the answers given, by the petitioner, to the interrogatories propounded to him by the court and counsel. If they were false, then he was guilty of the crime of perjury; and if true, then he was neither guilty of contempt of court nor of the crime of perjury, but was innocent. Consequently, the truthfulness or falsity of his testimony was one of fact, and being a felony, punishable by imprisonment in the penitentiary, he was clearly entitled to a trial by jury under the guaranty of the section of the Constitution before mentioned.
If that is true, and I am unable to see why it is not, then a jury, and not the court, should have passed upon his guilt or innocence; and as that was not done, the petitioner should be discharged.
*711II. The real contention of counsel for respondent is that, since the judiciary is one of the three coordinate departments of the State government, and each being separate and independent of the other two (article 3 of the Constitution), the Legislature had no power or authority under the Constitution to limit the inherent authority of the circuit court to punish persons for contempt of court, as was attempted to be done by said section 3881, Revised Statutes 1909. It is, therefore, contended by them, that said section of the statute is violative of said artcile 3 of the Constitution, and consequently is null and void.
In suport of this contention, we are cited to the cases of State ex inf. v. Shepherd, 177 Mo. 205, and Chicago, Burlington and Quincy Railway Company v. Gildersleeve, 219 Mo. 170.
There is no question but what both of those cases sustain this contention of counsel.
While the former case was decided by the unanimous court, yet the latter was by a divided court; four members concurred in holding the defendant guilty of contempt, and that the circuit court had the inherent authority to punish for contempt, and that the Legislature had no authority to limit or abridge that authority; and three members of the court dissented from the last proposition, holding in a dissenting opinion by Lamm, J., that the Legislature has such authority.
The writer was- one of the dissenters mentioned in the last ease decided, believing that under the laws of the State the Legislature has, within reasonable bounds, the authority to limit the power of all courts to punish for contempt; and I am of that opinion still.
In that case, Shepherd was proceeded against in this court, on information filed by the Attorney-General, charging him with publishing certain libelous charges against the court. The defendant was cited to appear and show cause, if any he had, why he *712should not be punished for contempt of court. Upon the return day, he appeared and filed return to the information, and upon the return the court found him guilty and fixed the penalty at the sum of $500. It was there insisted by the defendant, as it is here by the petitioner, that the court has no absolute inherent authority to punish him as contended for by the respondent, but that its authority was limited by sections 3881 to 3884, Revised Statutes 1909, and that said sections were constitutional and valid. This insistence, in my opinion, was well taken, and that the conclusion reached in that case was erroneous cannot be successfuly refuted. My reasons for so stating, are briefly these:
Section 14 of article 2 of the Constitution, denominated the “Bill of Rights,” provides: “That no law shall be passed impairing the freedom of speech; that every person shall be free to say, write or.publish whatever he will, on any subject, being responsible for all abuse of that liberty; and that in all suits and prosecutions for libel, the truth thereof may be given in evidence, and the jury, under the direction of the court, shall determine the law and the fact.”
- Under this constitutional guaranty, Mr. Shepherd published the article previously mentioned, and under the provisions thereof, he was clearly entitled to plead and prove the truthfulness thereof, which if true, was a perfect defense to the “prosecution” instituted by the Attorney-General; and in the express language of said section of the Constitution, he had the unquestionable right to have a jury, “under the direction of the court,” to “determine the law and the fact,” of his case.
No disinterested person, in my opinion, can read the opinion in that case, and the constitutional provision before quoted, and come to any other rational conclusion, than that this court erroneously denied to Mr. Shepherd the right to have a jury pass upon both *713Ríe law and the fact in that case, and to say whether or not he was guilty of contempt, as charged against him.
The section of the Constitution quoted is general in its terms, and includes all “suits and prosecutions” and no exception whatever thereto is saved by its provisions. The fact is, which is made perfectly clear by the history of said constitutional provision, that the framers of the Constitution intended-' that said section of the Constitution should specially apply to the executive, legislative and judicial departments of the State, and generally to all persons within the State.
It has been held by this court, and by all other courts of this country, where a constitutional provision similar to ours has been adopted, that it is but the adoption of the Pox Act of England, governing the same subject, and expressed substantially in the same language.
The history of that act is briefly this: Prior to its enactment, the courts of England were dominated by the king, and for centuries all publications unfavorably criticising the king or his government were promptly arrested and prosecuted for criminal libel, and of course, were found guilty and severely punished by the courts, which were but the mouth-pieces of the king. In order to remedy that evil and oppression, the Pox Act was enacted, thereby depriving the courts of England from trying the! fact, or declaring as a matter of law, as they had theretofore been in the habit of doing, that a publication was libelous, either in law or fact, and transferred that power and authority to a jury of defendant’s peers.
While the language of said act is general and includes all persons and classes, yet when viewed in the light of the history of the act, it clearly appears that it was designed especially for the governing classes of England, and when the people of this State, and country, adopted the Pox Act, they did so to pre*714vent the commission- in this country of those evils which existed in England, and which said act was designed to abolish in that country, namely, to prevent the courts of the State from trying or declaring as a matter of law that any publication criticising the State government, or any department thereof, was libelous, and that the author thereof was guilty of a crime.
The people of this State, and of this country generally, apprehending that the governing classes might assume unto themselves the arbitrary power so frequently, unjustly and oppressively exercised by the courts of England, in trying or declaring as a matter of law that any and all publications criticising them were libelous, adopted the constitutional provision previously set forth, for the purpose of preventing those evils, and to guarantee to all persons generally the freedom of speech, and the right to publish whatever they deemed proper, being responsible only for the abuse of that liberty.
If we view said section 14 of article 2 of the Constitution in the light of its history, then there can be no doubt but what the judiciary and all other departments of the State are clearly embraced within the subjects referred to therein. That being unquestionably true, it necessarily follows therefrom that Shepherd was unlawfully denied the right to have a jury pass upon the law and fact of his guilt or innocence.
I am, therefore, clearly of the opinion that the Shepherd case was erroneously decided; and the Grildersleeve case, being bottomed upon the Shepherd case, it must also fall for want of proper support or authority upon which to rest.
It is true that other cases are cited in support of both of those cases, but when we look at the principles of our government as announced in our Constitution and laws, it is clearly seen that they are contrary to the personal liberty of the citizen, and the spirit *715of our institutions, and should not for that reason be followed.
I am, therefore, of the opinion that the Shepherd and Gilder sleeve cases should be no longer followed, but should be overruled, and consequently the petitioner should be discharged.
Kennish, J., concurs herein.