The following opinion was filed May 16, 1922:
Doerfler, J.{dissenting). The writer has no thought of detracting from the able, thorough, and comprehensive majority opinion of the court; on the contrary, he realizes and appreciates the stupendous effort involved not only in the thought and study of the issues involved, but the persuasive style employed in the writing of the opinion. It is because no common ground of reconciliation can be found upon which the writer’s views can conform with those of the majority, and for the reason that it is felt that-the views of the entire court should be expressed on a subject -of such importance, that these few lines are penned and incorporated in a dissent.
The principal issue involved herein consists in determining whether the contemnor was punished for a criminal contempt, or whether the proceeding instituted against him, was remedial in its nature and resulted in the enforcement of a civil remedy by indemnity.
The court cannot, upon" a conviction for contempt, punish the contemnor criminally and at the same time and in the same order award the injured party indemnity. That would constitute such a blending of a criminal action and a civil *343action or proceeding' as is not warranted by our statutes or our code of procedure. Were that so, the contemnor would he obliged to appeal from that part of the order awarding indemnity to the injured party, and resort to a writ of error in order to review that portion of the order involving the criminal punishment. Hence, as is well said in In re Pierce, 44 Wis. 411, 423:
“The final order in contempt proceedings must be one thing or the other; it must impose criminal punishment for the misconduct, or enforce the civil remedy by -awarding indemnity. It cannot do both.”
This conclusion of the court in the Pierce Case has never been modified or receded from, unless the holding in Emerson v. Huss, 127 Wis. 215, 106 N. W. 518, can be so construed.
Great confusion has arisen in this court from a construction of ch. 117 of the Statutes, involving purely criminal contempts, and ch. 150, entitled “Proceedings to punish contempts to protect the rights of parties in civil actions.” The .offenses contemplated by ch. 150 involve criminal contempts in each instance, as much so as do the offenses referred to in ch. 117; the only distinction between the two sets of offenses consisting of the fact that ch. 117 refers to what are known as purely criminal contempts, viz. violations against the dignity and authority of the court, and therefore an affront against the administration of justice, while those included in ch. 150 contain all of the elements of the offenses referred to in ch. 117, are fully as serious in their nature and consequences, have a like effect upon the dignity and standing of the court, and equally interfere with the proper administration of justice; but, in addition to all of the foregoing, the contemnor has been guilty of something which is calculated to or actually does defeat, impede, or prejudice the rights or remedies of a party in an action or proceeding in a court.
*344The proper doctrine is laid down in 5 Crim. Law Mag. p. 174, § 22, and cited in 4 Ency. PL & Pr. p. 766:
“While contempt of court, in its essential character, is divided into various kinds, such as direct and constructive, civil and criminal, still, in every species of contempt, whatever may be the ultimate object of the redress sought in any individual case — i. e. private compensation or public vindication, — there is necessarily inherent an element of offense against the majesty of the law, savoring more or less of criminality.”
The cardinal principle underlying the subject, and one which must not be lost sight of, is the fact that at common law or under the statutes of our state or the statutes of any other state, in order to punish for contempt, or to indemnify the injured party, there must first be a finding that the con-temnor has been guilty of such misconduct as amounts to a contempt. Emerson v. Huss, 127 Wis. 215, 106 N. W. 518. It is this misconduct or contempt which is criminal in its nature.
Whether the proceedings instituted be designed under the provisions of ch. 117 or ch. 150, the basis necessarily must be a contempt. It has uniformly been held, therefore’ that in order to justify an order finding the accused guilty of contempt, the proof, as in all criminal cases, must be such as to satisfy the court beyond a reasonable doubt. 4 Ency. PI. & Pr. 768, and numerous decisions in various jurisdictions there cited.
Every presumption and intendment of innocence in a contempt proceeding is in favor of the party charged. Weeks v. Smith, 3 Abb. Pr. (N. Y.) 211; Potter v. Low, 16 How. Pr. (N. Y.) 549; Slater v. Merritt, 75 N. Y. 268; Whipple v. Hutchinson, 4 Blatchf. (U. S.) 190; Woodruff v. North Bloomfield G. M. Co. 45 Fed. 129.
The rule also obtains from the criminality attaching to contempt of court that the proceedings to redress the same should be strictly pursued. 4 Ency. PI. & Pr. 770, and numerous cases cited in note.
*345Inasmuch as no relief can be afforded the injured party in a proceeding under ch. 150 of the Statutes unless the accused is first found guilty of contempt under the rules and practices herein referred to applicable to' criminal cases, it is of little consequence to him whether, before the court malees its final order, the proceedings be considered criminal or remedial in their nature. A careful reading and study of the various sections included in ch. 150 of the Statutes has convinced the writer that the views above expressed were clearly within the contemplation of the legislature when such statutes were enacted.
It is true that sec. 3477, Stats., among other things provides:
“Every court of record . . . shall have power to punish by fine and imprisonment, or either, any neglect or violation of duty or any misconduct by which the rights or remedies of a party in an action or proceeding depending or triable in such court or before a court commissioner for the same county may be defeated, impaired, impeded or prejudiced in the following cases: . . (Then follow eight subsections, the various instances in which, by the portion of the section quoted, the court may punish by fine and imprisomrient, or either.)
Sec. 3478, Stats., clearly contemplates a criminal- contempt, even though it involves an interference with private rights. Secs. 3480 arid 3481, Stats., prescribe the proceedings to be taken and followed in a contempt which involves injury to private rights. But the character of the proceedings instituted and the manner in which the proceedings shall be entitled do not obviate the necessity of first proving the contempt in every instance.
Sec. 3489, Stats., provides:
“If, trpon the hearing of an order to show cause or in such proceedings in case of an attachment, the court shall adjudge the defendant to have been guilty of the misconduct alleged and that the misconduct was calculated to or actually did defeat, impede or prejudice the rights or remedies of any party in an action or proceeding pending in such court, *346it shall proceed to impose a fine or to imprison him, or both, as the nature of the .case shall require. A warrant of commitment must be issued accordingly.”
Under the section just quoted the legislature intended a punishment for the criminal contempt, and this conclusion must be inevitably arrived at by reason of the punishment prescribed. Nothing whatever is contained in this section intended to afford relief to the injured party, but the sole purpose of the section is to provide for the punishment of the contempt in order to maintain the dignity of the court. This is made clearer by the provisions of sec. 3490,' for it is there provided that:
“If an actual loss or injury has been produced to any party by the misconduct alleged the court shall order a sufficient sum to be paid by the defendant to such party to indemnify him and to satisfy his costs and expenses, instead of imposing a fine upon such defendant.”
So that where there is an actual loss or injury, if the court desires to indemnify the person injured it can by its order make provision therefor; but nothing can be clearer than that if the court in granting the relief concludes to give this remedy, it cannot at the same time punish by fine and imprisonment, or either, for it would be then blending, as so aptly said in a foregoing quotation, the criminal and the civil nature of the proceeding.
Sec. 3490 also provides that: •
“Where no such actual loss or injury has been produced the fine shall not exceed two hundred and fifty dollars over and above the costs and expenses of the proceedings.”
This portion of the statute, in the relief given, cannot be considered criminal in its nature, for, as has been said in In re Pierce, 44 Wis. 411, the word as employed means indemnity, and nothing more. The indemnity awarded need not be commensurate with the actual damages, for there are many provisions in our statutes which give double and treble damages as punitory damages, and in every in*347stance where the rights and remedies of a private party have been impeded or interfered with there is a presumption of at least nominal damages. Such fine shall not exceed $250, and undoubtedly it was intended that, the amount thereof shall be fixed at a sum somewhat commensurate with the actual damages inflicted, with the limitation as aforesaid.
Sec. 3491, Stats., still further clarifies the views herein expressed, for it is therein provided:
“When the misconduct proved -consists of an omission to perform some act or duty which is yet in the power of the defendant to perform he shall be imprisoned only until he shall have performed such act or duty and paid such fine as shall be imposed and the costs and expenses of the proceedings.”
So that where the misconduct consist of an omission to perform an act or duty which the defendant can still perform, the legislature intended by the provisions of sec. 3491 ■ to imprison him only until he performs the act and pays the costs and expenses and until he pays the fine referred to therein, which fine is in the nature of a forfeiture or of a punishment, as is provided in numerous other instances by various statutes where double and treble damages are awarded.
The writer cannot agree with what is said in Emerson v. Huss, 127 Wis. 215, 106 N. W. 518, that the fine under a proceeding for remedial relief shall be paid to the state treasurer for the benefit of the school fund. It would stamp it as a criminal proceeding, and under such holding the civil and the criminal proceeding would be so blended as to involve both an appeal and a writ of error in the same case.
Sec. 3492 provides:
“In every other case, when no special provision is otherwise made by law, the defendant may be imprisoned for a reasonable time, not exceeding six months, and until the fine, if any, and the expenses of the proceedings are paid; and the duration of such imprisonment shall be expressed in the order and warrant of commitment.”
*348In view of the foregoing statutes, a proper construction of the section last cited conveys the thought that where a fine is imposed and the defendant is ordered to pay the expenses of the proceedings and he fails to comply, with such order, he may be imprisoned for a period not to exceed six months, such imprisonment to cease upon compliance, and in any event the duration of the imprisonment must be expressed; for while the facts and circumstances in one case may warrant a limitation of six months, in other cases they may require a shorter period.
Where the proceedings are designed for remedial purposes solely, and the defendant is adjudged in contempt and a proper fine or indemnity is provided for, the defendant may be committed for coercive reasons, such commitment, however, not being in the nature of a criminal punishment; and in all such cases the defendant has the key in his own possession by the use of which he can relieve himself from imprisonment.
The views above conveyed are fully and aptly contained and set forth in what is pei'haps the most important and celebrated case of contempt in the history of our jurisprudence. In Gompers v. Bucks S. & R. Co. 221 U. S. 418, 441-443, 31 Sup. Ct. 492, it is held:
“It is not the fact of punishment, but rather its character and purpose, that often serve to distinguish between the two classes of cases. If it is for civil contempt the.punishment is remedial, and for the benefit of the complainant. But if it is for criminal contempt the sentence is punitive, to vindicate the authority of the court. It is true that punishment by imprisonment may be remedial as well as punitive, and many civil contempt proceedings have resulted not only in the imposition of a fine, payable to the complainant, but also in committing the defendant to prison. But imprisonment for civil contempt is ordered where the defendant has refused to do an affirmative act required by the provisions of an order which, either in form or substance, was mandatory in its character. Imprisonment in such cases is not inflicted as a punishment, but is intended to be remedial by coercing the defendant to do what he had refused to do. *349The decree in such cases is that the defendant stand committed unless and until he performs the affirmative act required by the court’s order.
“For example: If a defendant should refuse to pay alimony, or to surrender property ordered to be turned over to a receiver, or to make a conveyance required by a decree for specific performance, he could be committed until he complied with 'the order. Unless there were special elements of contumacy, the refusal to pay or to comply with the order is treated as being rather in resistance to the opposite party than in contempt of the court. The order for imprisonment in this class of cases, therefore, is not to vindicate the authority of the law, but is remedial, and is intended to coerce the defendant to do the thing required by the order for the benefit of the complainant. If imprisoned, as aptly said In re Nevitt, 54 C. C. A. 622, 117 Fed. 451, ‘he carries the keys of his prison in his own pocket.’ He can end the sentence and discharge himself at any moment by doing what he had previously refused to 'do.
“On the other hand, if the defendant does that which he has been commanded not to do, the disobedience is a thing accomplished. Imprisonment cannot undo or remedy what has been done, nor afford any compensation for the pecuniary injury caused by the disobedience. If the sentence is limited to imprisonment for a definite period, the defendant is furnished no key, and he cannot shorten the term by promising not to repeat the offense. Such imprisonment operates not as a remedy coercive in its nature, but solely as punishment for the completed act of disobedience.
“It is true that either form of imprisonment has also an incidental effect. For if the case is civil and the punishment is purely remedial, there is also a vindication of. the court’s authority. On the other hand, if the proceeding is for criminal contempt and the imprisonment is solely punitive, to vindicate the authority of the lavo, the complainant may also derive some incidental benefit from the fact that such punishment tends to prevent a repetition of the disobedience. But such indirect consequences will not change imprisonment which is merely coercive and remedial, into that which is solely punitive in character, or vice versa.”
This decision is a crystallization of the judicial wisdom of the ages by the highest court of the greatest country in the *350world, and the writer considers it not only good law but unanswerable. No vested property rights or interests have resulted from any judicial holding upon the subject of contempt, and we are therefore at liberty to adopt the reasoning in the Gompers Case, above cited.
Whatever may have been the title of the proceeding in the instant case, the complainant demanded in his affidavit punishment of the defendant for criminal contempt. This is persuasive but not conclusive. When the crucial period arrives, the defendant having necessarily been surrounded by the highest protection involved in a criminal case, it is for the court to say what the punishment shall be; whether it shall be of a remedial nature, or whether it shall be in the nature of a criminal punishment. 'It is the punishment inflicted that determines whether it is criminal or not.
And, in conclusion upon this subject, the writer will repeat what is said in In re Pierce, 44 Wis. 411, 423:
“Hence, the final order in contempt proceedings must be one or the other; it must impose criminal punishment for the misconduct, or enforce the civil remedy by awarding indemnity. It cannot do both.”
The writer will not extensively discuss the subject of pardon as applicable to convictions for criminal contempt. Uniformly, with perhaps one exception, the highest courts in this country and in England have held in favor of the pardoning power. It is admitted that the right to punish for contempt is inherent in the courts; that it is necessary to maintain their dignity and standing and to properly enable them to administer justice. While in England the pardoning power rests with the King, so in this country it rests with the President and with the governors of the states. Such power was so vested in the President by the federal constitution, and in the governors by the state constitutions. It is no more reflection upon the courts to recognize the pardoning power in the governor in a case of a criminal contempt than to recognize such power where the criminal laws of *351the people enacted by the legislature have been violated and the defendant is sentenced to imprisonment by the court. The right to punish for contempt, while an inherent right in the courts, is not superior to the rights of the people, for all power, in the last analysis, is granted by and comes from the people. Even in monarchical governments with arbitrary powers the pardoning power rests with the king, the emperor, or a provincial governor. Such was the case even in Russia and in Germany prior to the downfall of their imperial governments. Such power involves the element of forgiveness and of mercy. All criminal laws are designed for the protection of the people, and where a situation arises where a pardon or forgiveness of an offense is contemplated to produce the public welfare, such pardon ought to be granted.
The power expressed in a pardon is the most sacred and godlike exercised by man in his capacity of dispensing justice on earth.
“The quality of mercy is not strain’d;
It droppeth as the gentle rain from heaven Upon the place beneath; it is twice blest:
It blesseth him that gives, and him that takes;
’Tis mightiest in the mightiest; it becomes The throned monarch better than his crown;
It is an attribute to God himself;
And earthly power doth then show likest God’s
When mercy seasons justice.”
This power has been vested in the highest representative of the people in the state of Wisconsin, who is answerable to his constituents every two years. Such power has not been abused in the history of this state. Courts must shine not by reason of any arbitrary power vested in them, but by their inherent desire to do justice between man and man.
This pardoning power is designed to relieve the innocent, the weak, and those who have repented of their wrongdoings, and those who, from an honest conviction in the *352righteousness of their position, have taken an attitude based on what they, deem a correct principle.
It is intimated in the majority opinion that where a defendant is imprisoned in a contempt proceeding such as in the instant case, he can find relief by repentance and by asking forgiveness of the judge who sentenced him. No man who assumes a position righteously based bn principle will ever be guilty of playing the part of a hypocrite. It was the great Luther who, when confronted with the charge of heresy, said, “Here I stand.” ITe was willing to die for principle.
Judges are human beings, and, despite their good intentions, may be actuated by motives of resentment and may make the cause of the court their own. Relief from such a situation is dispensed by the exercise of the pardoning power by the executive.
For the reasons- above stated the writer respectfully dissents from the majority opinion in this case.
Crownhart, J., took no .part.A motion for a rehearing was denied, without costs, on June 6, 1922.
The following was filed May 17, 1922:
Per Curiam.Since the filing of the opinion in this case the Hon. A. IT. Reid, the trial judge who committed Christ for contempt, has addressed a communication to the members of this court which is as follows:
“Wausau, Wisconsin, May 1, 1922.,
“To the Honorable the Chief Justice and the Associate Justices of the Supreme Court of the State of Wisconsin:
“I, A. IT. Reid, believe that the portion of the opinion in State ex rel. Rodd v. Verage which does not deal with the merits of that controversy does me a serious injustice. Fol *353lowing the precedent set by former Chief Justice Dixon in Wight v. Rindskopf, 43 Wis. 344, 368, I submit this statement for your consideration.
“Your opinion implies that I permitted myself ‘to discuss in public places and before public audiences’ the merits of this case, and that I ‘deliberately indulged in a discussion of the merits of this case under circumstances where the discussion was more than likely to come to the attention’ of your Honors while the case was still pending.
“I am in most hearty accord, as I think must be every one entitled to the respect of the courts, the bar, or the community, in disapproving public discussion of a pending case under circumstances appearing to be calculated to influence the court either directly, or indirectly through public opinion. If the portion of the opinion referred to is to remain a part of the record, I ask in justice to myself that this statement of the facts may also be part of the record.
“I have never at any time publicly discussed this case except as hereinafter stated. There was a most vital principle at stake, and I deemed it my official duty to enforce on the sheriff who held my order his duty to obey me, notwithstanding any executive pardon, and I did so.' The controversy received much newspaper notoriety in' which I took no part.
“In January I was invited to be the guest of the Rock County Bar Association at their annual banquet and there give an address. I accepted and prepared such an address on the subject ‘Impediments to Justice,’ to be delivered March 6th. In that address I referred to the question raised in the Rodd Case just as I referred to other pertinent questions of public interest. I had no idea or expectation that the proceedings at that banquet of lawyers would be reported in the public press nor that any of your Honors would be present.
“On observing some of your Honors present, I asked those accessible to me at the table whether I should omit from my prepared address (a pretty difficult thing to do and preserve the ' continuity) the references to the Rodd Case. I was advised to deliver the address just as written. I followed this advice, but, when coming to the portions referring to that case, stated that the paper which I had now prepared contained some references to that case and that I *354was embarrassed by the presence of some of your Honors, but deemed it best to proceed.
“If this conduct merits the prominence and condemnation which the opinion gives it, then I must accept the censure, but in fairness to myself I ask that this statement be ordered printed with the opinion so as to present the entire facts on which censure is based. .
“Respectfully submitted, A. H. Reid.” ^
It is ordered that the request be granted, and that this order be published with and as a part of the official report.