(dissenting). I cannot agree with the majority opinion because to me it is clear:
That the proceedings were for a criminal contempt and therefore punitive solely;
That being such, they were subject to the pardoning power;
That the attempted transformation by the circuit court of the application to punish as for a criminal contempt into a proceeding for a civil contempt and the consequent enlarged punishment was unwarranted;
Due process of law having been accorded Hans Rodd on the charges preferred in the hearing by the executive, his determination thereon was within the field of his jurisdiction and is not subject to review or question by the judicial branch of the government.
I subscribe to the doctrine that the power to punish as for a crime, that is, by imprisonment, thereby restraining of his liberty one who violates the orders of a court or flouts its *332dignity, is an inherent, common-law power of a court of justice, essential for the upholding of its authority and maintaining its dignity and self-respect. Such power is provided, limited, and defined by ch. 117, Stats., sec. 2565 et seq.
I also believe that such power cannot be taken away by the legislature from courts which are framed by the constitution, although the procedure may be, within fair limits, regulated by that body. Some courts have so exalted this common-law power in constitutional courts as to hold it beyond legislative curtailment. Nichols v. Judge of Superior Court, 130 Mich. 187, 193, 89 N. W. 691. A list of other cases so holding is given in Walton L. Co. v. Kearney, 236 Mass. 310, 316, 128 N. E. 429. In this latter case the general subject of the inherent power of courts to- punish for contempt is discussed, and it is there held that an act of the legislature purporting to give the right to trial by jury in such cases is unconstitutional. Page 317. See, also, 8 A. L. R. note on p. 1544.
The legislature of this state, however, has always regulated such proceeding from as early as the revision of 1849. Such regulation, control, and narrow limitations as to fine and imprisonment has never been questioned by this court.
There is no question but that a court may imprison one who, violating its orders, thereby interferes with, impedes, defeats, or repudiates the rights or remedies of a litigant. This subject is regulated by ch. 150, Stats., sec. 3477 et seq.
These, however, are separate, distinct, and independent proceedings: one to protect the court’s dignity, the other for the protection of a litigant’s property rights. An individual when brought before the court to be punished as and for a contempt must be brought there by either one or the other of such proceedings, not by both or a mixture or conglomeration of both. The commitment to jail for a contempt must be either for a criminal contempt as such or a civil contempt as such, and cannot be for both in one proceeding/
*333Though the act in question may savor of both criminal and civil contempt, that is, it may be an insult to the court and also an injury to the property rights of a litigant, nevertheless the proceeding to call him to account for such act cannot savor of both, as it was said in Gompers v. Bucks S. & R. Co. 221 U. S. 418, infra, at p. 443 (31 Sup. Ct. 492), that the incidental vindication of the court’s authority in the civil and the incidental benefit to the party in the criminal “will not change imprisonment which is merely coercive and remedial, into that which is solely punitive in character, or vice versa.”
That the essential difference between these two proceedings is such that the" “two proceedings cannot be blended in one” is expressly held in the case of In re Pierce, 44 Wis. 411, 422, citing State ex rel. Mann v. Brophy, 38 Wis. 413, 425; In re Murphey, 39 Wis. 286; State ex rel. Chappell v. Giles, 10 Wis. 101, 102. It is again stated as the accepted doctrine in State ex rel. Meggett v. O’Neill, 104 Wis. 227, 229, 80 N. W. 447. There is nothing to the contrary of this view in Emerson v. Huss, 127 Wis. 215, 106 N. W. 518, relied upon by relator. That decision does, at page 225, qualify and limit certain language in the case of In re Pierce, 44 Wis. 411, 424, supra, as to the effect to be given to the word “fine” in the statute, but in no other wise is that former decision questioned, nor are the others now quoted on this point limited, much less overruled.
The distinction is clearly pointed out and defined in the case of Gompers v. Bucks S. & R. Co. 221 U. S. 418, 443 et seq., 31 Sup. Ct. 492, cited and quoted from in the majority opinion here. This distinction between the two forms of proceeding and that the act sought to be punished by the criminal contempt proceedings is crime in the full and true sense of the word is again emphatically pointed out in the case of Gompers v. U. S. 233 U. S. 604, 34 Sup. Ct. 693, an aftermath of the first Gompers Case just above cited, and further holding that, being thus a crime both by *334statute and analogy, there is a period of limitation for the prosecution of an act as being of such criminal contempt nature just as well as for its prosecution as a crime. Since the decision in the Gompers Case in 221 U. S. 418, 31 Sup. Ct. 492, supra, the holding therein made as to the distinct nature of these two proceedings has been expressly followed elsewhere. Walton L. Co. v. Kearney, 236 Mass. 310, 316, 128 N. E. 429, supra; Bijur M. A. Co. v. Int. Asso. of Mach. (N. J.) 111 Atl. 642, presenting the violation of just such an order as here, where it was held a criminal contempt and punished by fine and imprisonment. Staley v. South Jersey Realty Co. 83 N. J. Eq. 300, 304, 90 Atl. 1042; Stewart v. U. S. 236 Fed. 838; State v. Little, 175 N. C. 743, 94 S. E. 680; Smith v. Smith, 81 W. Va. 761, 95 S. E. 199. There can be, therefore, no simultaneous, cumulative, or double sentence in one proceeding.
The court having made the order of commitment for a criminal contempt loses all power thereover, and cannot stay its immediate execution, modify it, or permit its withdrawal, as seems to be held in State ex rel. Oshkosh T. Co. v. Goerlitz, 172 Wis. 581, 583, 179 N. W. 812. The only remedies of the contemnor are review by an appellate court, or, as said in Ex parte Fisk, 113 U. S. 713, 718, 5 Sup. Ct. 724, infra, by pardon.
When confined for civil contempt the prisoner is held under a lock with at least two keys, one carried by the prisoner, the other by the court.
The remedy to question in an appellate court the proceedings for criminal contempt is by writ of error (In re Murphey, 39 Wis. 286; Williamstown v. Darge, 71 Wis. 643, 38 N. W. 187) and not by appeal. State ex rel. Oshkosh T. Co. v. Goerlitz, 172 Wis. 581, 583, 179 N, W. 812.
The remedy to review the proceeding for civil contempt is by appeal. Witter v. Lyon, 34 Wis. 564, 575; In re Day, *33534 Wis. 638, 642; State ex rel. Meggett v. O’Neill, 104 Wis. 227, 229, 80 N. W. 447; Vilter Mfg. Co. v. Humphrey, 132 Wis. 587, 590, 112 N. W. 1095.
If these be separate and distinct proceedings they must necessarily, as well as logically, be so from start to finish. There should be no shifting process during the migration, especially where by such shift the term of permissible imprisonment is extended.
Thát the petitioner, evidently acting on behalf of the Rhinelander Paper Company, which sought to have Peter Christ punished for contempt, instituted proceedings against him resulting in his imprisonment, intended to bring the same for a criminal rather than a civil contempt and that such proceedings were carried on as such until the making of the final order, seems very plain.
An order had been made by the circuit court'in the suit instituted by the Rhinelander Paper Company. Sub. (3), sec. 2565, in ch. 117, Stats., providing for the acts that may be punished as criminal contempt, specifies as one of such acts the wilful disobedience of any order lawfully made by such court. The petition upon which Peter Christ was brought into court recited that “he has wilfully and contumaciously refused and still refuses to obey” such order. The prayer for the relief sought is that said Peter Christ show cause why he “should not be punished as for criminal contempt.” The attachment then issued by the court recited that Peter Christ was to be brought “to make answer concerning a certain contempt which it is alleged he has committed against said court in wilfully refusing to obey that certain order of said court.” The undertaking given by him when taken into- custody also recited that he was to answer for an alleged contempt of court for wilfully refusing to obey a certain injunctional order.
As recited in the majority opinion, the attorney for the Rhinelander Paper Company on the hearing of the matter, *336in' response to the inquiry by the court, stated that there was no desire to introduce proof of any special damages to the plaintiff.
Until this stage of the proceedings the record does not disclose anything said or done by the petitioner that suggested that the proceedings then before the court were to protect the rights of a party in a civil action. Then the findings were made by the court that the misconduct of Peter Christ was calculated to and did actually defeat, impede, and prejudice the rights and remedies of the Rhinelander Paper Company. This was the first resort, so far as the record shows, to such specific language from sec. 3477, Stats., regulating proceedings for civil contempt. No such language is found in ch. 117 regulating criminal contempt proceedings. The order directing the commitment further recited that the court found and adjudged that the “conduct of Peter Christ was in contumacious disregard and violation of the order of this court,” language which is evidently appropriate for findings in proceedings for criminal contempt.
The maximum punishment permissible under the statute for criminal contempt is thirty days, as specified by sec. 2568, Stats., which has been in force in this state since the revision of 1849, appearing there as sec. 8 of ch. 87. The maximum term of imprisonment that the court could inflict, if the proceedings had be4n for civil contempt, is limited by sec. 3492, Stats., to- not more than six months. The proceedings having been instituted as and for a criminal contempt, Peter Christ being brought into court to answer for such a criminal contempt, having entered a plea of guilty to what was evidently supposed to be such a charge, the court nevertheless proceeded to grant to the Rhinelander Paper Company more than it asked or from the nature of its proceedings' had any right to expect, and to deal out to- Peter Christ more than he expected, and, under the law, had the right to expect.
*337Immediately following the preamble to the constitution of this state, wherein is expressed gratitude to Almighty God for our freedom, the very first section of the very first article of that document reads as follows:
“All men are born equally free and independent, and have certain inherent rights; among these are life, liberty and the pursuit of happiness; to secure these rights, governments are instituted among men, deriving their just powers from the consent of the governed.”
At the time of this hearing the Rhinelander Paper Company, through the petitioner Mr. Hanke, stood before the court with its property rights involved, but asked for no relief as against Peter Christ for any impairment or injury to such property rights, and had confined itself to the matter of asking, as any third person might have asked, that one who had flouted and disregarded the order of the court should be punished as and for a criminal contempt and that only. Peter Christ stood before the court at the same time surrounded by his constitutional right, a right as old as Magna Charta, that he should not be deprived of his personal liberty except and unless by due process and under proper proceedings in law.- This right surrounded him as it does every one, no matter how much such individual may ultimately deserve punishment for what he has done, just as much as did'the right to protection of property rights surround the plaintiff in that action. Yet one was made superior to the other by the change then made by the court in the very essence of the proceedings before him; as substantial a change as that which this court declared in State ex rel. Schumacher v. Markham, 160 Wis. 431, 152 N. W. 161, the legislature could not make by the corrupt practices act in so far as it denied to one his constitutional right to a jury trial.
The apparent reason for this change and for the imposition of the more extended prison sentence appears to have *338been considered by the court inflicting it and by the majority opinion here that thereby the property rights of a litigant were more efficiently safeguarded.
This is permissible, the majority say here, because though it be doubtful as a question of law whether the circuit court was correct, yet if there was judicial error it was within the jurisdiction of the court to err, and such error, if error it was, became conclusive on the world. Yet elsewhere in the majority opinion it is declared the executive, however, has no jurisdiction to err in any conclusion of his as to the nature of the proceedings over the result of which he proposes to exercise his pardoning power, but is tied fast by the prior judicial ruling, error or no error.
I fully appreciate and freely admit the possibility of error in the judicial branch of the government, but do not join in any assertion of such exclusive right to err.
I cannot agree with the grounds which underlie such result or concur in the result.
I have no sympathy with the particular individual here concerned, who deserved punishment so far as the law permitted, but whose right to have the punishment stop where the plain letter of law said that it should was as much entitled to consideration as the property rights of a litigant to protection. The possible meriting by the individual of the extended sentence should not be sufficient excuse for a wandering from the straight path of the constitution. I do not subscribe to the doctrine which must be the foundation of the holding by the majority opinion in this case, that the property rights of a litigant are superior and paramount to the right to be free from unlawful restraint of personal liberty. They should stand at least bn equal footing.
Although the question is only discussed and not decided in the majority opinion, I think that, under the broad and general language as to the pardoning power placed by the constitution in the hands of the executive, a person confined for a criminal contempt may be properly released from *339such confinement by a pardon. 13 Corp. Jur. 97; 3 Ruling Case Law, 540; Am. & Eng. Ann. Cas. 1915D, 1062, note. In the suggestions in the majority opinion on this subject, In re Nevitt, 117 Fed. 448, is cited as impliedly holding that there is no such pardoning power in the federal executive. Yet on the other hand, in Ex parte Fisk, 113 U. S. 713, 718, 5 Sup. Ct. 724, such power is apparently recognized, and also in the cases of In re Mason, 43 Fed. 510, 515; In re Mullee, 7 Blatch. 23; and Fischer v. Hayes, 6 Fed. 63, 73. Campion v. Gillan, 79 Neb. 364, 112 N. W. 585, is cited and relied upon by the relator as holding the contrary. The decision in that case held that the governor has no power to pardon a prisoner found guilty of bastardy. It was then held in that case (p. 370) that a prosecution for bastardy is a civil action. That single statement makes that decision inapplicable here/ It is also held in that case that the pardon sought to be relied upon was before the conviction of the defendant and therefore not within the power of the governor under the constitution, which gives him the right to pardon “after conviction.” Page 367.
The suggested fear that the judiciary will be emasculated if it recognizes the constitutional pardoning power of a co-ordinate branch of the government as extending into the field of commitments in statutory contempt proceedings does not impress me at all. It is like the myth of possible despotism arising on the ruins of our liberties if the power of removal from office is made easy, as said by the late Mr. Chief Justice Winslow in his dissent in the case of Ekern v. McGovern, 154 Wis. 157, 319, 142 N. W. 595. The inherent and much extolled power to commit for contempt.has already been pretty thoroughly fettered and tied down by legislative limitations, at least in this state. If during a hearing of a trial in a court of record a violent assault be made upon an officer of the court, a witness, or party in the case, to the manifest disturbance of the proceedings and the consequent flouting of the authority of the court, the most *340the court as such could do would be to confine such contem-nor to the county jail for a term not exceeding thirty days. Yet if the individual be prosecuted for the same act under sec. 4377, Stats., as for an assault to do great bodily harm, he may be imprisoned in state’s prison up to three years, or if under sec. 4388, Stats., for simple assault and battery, up to six months in the county jail. In either of these latter instances he might, immediately upon conviction, be pardoned.
The legislature, under its recognized constitutional authority, has defined and fixed the terms of punishment for such offenses as murder, rape, arson, burglary, and theft, all of which certainly are offenses against the rights to life, liberty and the pursuit of happiness, under which last phrase, I take it, for there is no other applicable, the right to property must come, to secure which rights our government is instituted. The constitution has delegated to- the judiciary alone the function of trying such offenders charged with such offenses and adjudging the penalties. All of this is done for the protection of all the people, by all the people, through their recognized agent, the legislature. Yet the solemn ceremony of declaring an offender under any of the above mentioned or similar statutes deserving of a certain designated term of imprisonment for the protection of just such rights may nevertheless become but an idle form by reason of the 'unquestioned power of the executive to liberate such offender after conviction and even before the door of the prison has clanged behind him. Such sübstantial limitations upon the power of the judiciary both as to' contempt proceedings in fornTand penalties as well as to offenses against the peace and dignity of the state have been acquiesced in without serious, outward at least, indications of chafing by the judiciary against such limitations and fetters. Wherein there is any more danger that the functioning of the courts is to become spineless by the recognition of the constitutionally granted power of pardoning him who sits in durance vile because a contemnor of the court than when the same kind *341of document frees him who is in the same confinement because a contemnor of God, man, and the peace and dignity of the state of Wisconsin, I am unable to see.
Impotence of the judiciary is not of the future only but it has often been recognized in the past. Its machinery often permits of the sending of a.man to jail for an excessive term for the offense with which he is charged, and yet, after the brief period allowed for suing out a writ of error has expired, is self-confessedly powerless to let him out. In re Carlson, 176 Wis. 538, 186 N. W. 722. An instance where this court invited rather than repulsed the pardoning power is shown in the case of Bruno v. State, 165 Wis. 377, 380, 162 N. W. 167.
The power to punish for contempt, in which in a measure the magistrate sits as prosecutor, judge, and jury, while necessary and essential for a proper upholding of the power and the dignity of a court of justice, is nevertheless one to be sparingly used. Though a creation of the common law and existing from the time whereof the memory and reading of man runneth not to the contrary, yet in England, the home of the common law, it is very seldom resorted to, for as stated in Gompers v. U. S. 233 U. S. 604, 611, and at p. 612 (34 Sup. Ct. 693), “The English courts seem to think it wise, even when there is much seeming reason for the exercise of a summary power, to leave the punishment of this class of contempts to the regular and formal criminal process.”
I shall not speak at length on other points involved except to say that I cannot agree that the legislature has the power to lessen the effect of the broad language of the constitution which grants to the governor the power to remove certain elective officers including sheriffs. I believe that the constitution itself, not legislative restricting declarations, must be resorted to in determining the governor’s power. Furthermore, that the judicial branch of the government, in reviewing the action by or proceedings before an executive of the *342state, can go no further than to see that the provisions of the constitution, and especially as to due process of law, are followed by or before him; that those constitutional mandates being first observed, then his determination of matters within his discretion and judgment' cannot be overturned, and that such and no more was the effect of the decision in Ekern v. McGovern, 154 Wis. 157, 142 N. W. 595.
I think the reasoning and decision upon the similar provision in the New York constitution as to removal of elective officers as presented in Matter of Guden, 171 N. Y. 529, 64 N. E. 451, is applicable here and should control.
For the above reasons I think the writ should be denied.