Concurring Opinion of
Mr. Justice Sulzbacher.In signing the opinion of the majority of the court I stated: “I concur in the result, subject to the legal conclusions expressed in my separate opinion.” With that end in view I deem it necessary to make a full statement of the facts in the case.
In the District Court' of Mayagiiez bíobart S. Bird was found guilty of contempt of court. A warrant was issued, and upon his arrest in San Juan,- he applied to this court for a writ of habeas corpus.
From the petition and the record of the District Court it appears that “The San Juan News,” a newspaper published in San Juan, contained an article which the District Court of Mayagiiez considered libelous and contemptuous. The *437article had reference to a certain trial by jury in ‘which the Hon. Arturo Aponte was the presiding judge, and, as authorized by law in such cases, he alone constituted the District Court for the purpose of that case. At the trial of the contempt proceeding before the Hon. Arturo Aponte, Bird, the defendant, was not 'present. He appeared by attorney, who asked for a continuance of the case on account of his client’s absence, and also moved the court to summon witnesses for his defense. There are also found in the record telegrams from said Bird, directed to the Hon. Arturo Aponte, requesting him that his trial be continued for the reason that he had also been summoned to appear before the District Court of San Juan in another libel suit for the day preceding the one on which he was required to be at Mayagüez. All these requests and motions were denied and the Hon. Arturo Aponte tried the case in the absence of Bird, convicting him and imposing a sentence of fifteen days in jail and to pay a fine of one hundred dollars.
At the hearing of the application for the writ of habeas corpus before this court, the Hon. Fiscal, representing the People of Porto Rico, moved the court to grant the writ of habeas corpus, and to discharge the prisoner for the reason that the warrant for commitment was defective and did not comply with section 3 of the Act of the Legislative Assembly of Porto Rico, approved March 1, 1902, and entitled “An act defining the offense of contempt of court and providing for the punishment thereof”, and which appears in the so-called “Revised Statutes”.
That the warrant had been signed by the clerk of the court instead of the judge delivering the sentence; that it failed to set forth the act or acts constituting the contempt, or any of the requirements prescribed by the said act of the legislature; and that therefore the sentence in said case was invalid and inoperative. In support of this motion the *439said representative of the People of Porto Rico also stated that this court, in a similar or identical case, had decided this same question, and that the writ was then granted and the prisoner discharged. This case was decided on the 1st of May, 1902. Said section reads:
“Section 3. — (146)-—When a criminal contempt is committed in the immediate presence and view of the court, the punishment therefor may be inflicted immediately by the court or the presiding judge thereof. When such contempt is not so committed, the person or persons charged therewith must be notified of the accusation and be given reasonable time to defend against such charge; and whenever a person is fined or committed to jail for a contempt of court, an order or warrant for such fine or imprisonment must be signed by the judge delivering such sentence, setting forth the act or acts constituting such contempt, with the time and place of the commission thereof, and the circumstance thereof, and ■ specifying the sentence of the court; otherwise such sentence will be wholly invalid and inoperative.
“Punishment for contempt of court under. this section shall not bar a criminal prosecution for the same offense conducted by the Fiscal of the proper jurisdiction, but where a person so punished is convicted upon such additional prosecution his previous punishment under this Act shall be taken into consideration by the court pronouncing the sentence against him.”
On a subsequent date the Hon. Fiscal appeared in court and asked leave to file a brief, and his motion was granted. By this brief it is claimed that the above-mentioned act of the legislature was repealed by the enactment of the Penal Code, which also contains a. law in reference to contempt of court. The former act, which was approved on March 1, 1902, took .effect on the day of its passage, whilst the Penal Code, which was also approved bn March 1, 1902, by its provision took effect on July 1, 1902; therefore it is claimed the first act would only be in force from the 1st of March until the 1st of July, when it would be superseded by the laws of contempt contained in the Penal Code. The effect of this position would virtually be that this court *441should reverse its former decisions and the precedent established thereby.
The question before this court is therefore chiefly this: What law in reference to contempt of court is in force in Porto Ribo, the first one contained in the Revised Statutes, or the one of the Penal Code ?
Courts are not infallible. They should be willing to change their views, adopt new theories, and even reverse themselves when they discover that, by their former decisions, errors have been committed. These revocations, however, must be exercised with the greatest caution. The community relies upon the decisions of the Supreme Courts in their transactions and in the advisability of litigations.
There are well-known principles of American jurisprudence in the construction of statutes. A subsequent law often repeals a prior one. When there áre two statutes upon the same subject, a court should, if possible, construe them together and harmonize them; but if it should appear that this cannot be done, and that they are incompatible and in absolute conflict, neither law is in force.
To arrive at fair and logical conclusions courts should always endeavor to ascertain the real intention of the legislator and this can frequently be determined by considering all surrounding conditions existing at the time of the passage of the laws.
During the Spanish sovereignty, punishment for contempt of court, to the extent of its existence in the United States, was not known, but when the “Foraker Act” established the judicial tribunals on this island, thereby making them American courts, they became at once vested with the *443inherent power to punish for contempt. The legislature, however, has seen fit to define this power, to prescribe the punishment which a court may impose and to outline certain rules and proceedings to carry out the law.
The power of a court to punish for contempt is an extraordinary prerogative. The courts are the judges and the judges are the courts. If a person, a's a judge, is libeled, it is contempt of court. This proceeding is almost in contravention to the ancient legal maxim “nemo propia causa judex esse debet”. Judges are human. ‘ They may not always be capable of discriminating and discerning how far the court and how far the judge has been offended. The line of distinction is narrow, and it requires frequently a keen scrutiny of the most discreet and impartial judgment, of prudence, caution, fairness and judicial independence, to determine where the individual personality ends, and where the judicial character begins.
For this reason the authorities have held that whenever extraordinary privileges are conceded, such laws must be strictly followed. They are mandatory and not directory, and any deviation makes the proceedings void. The legislature here has gpne so far as to declare that if a warrant in a contempt proceeding does not contain certain provisions “the sentence shall be wholly invalid and inoperative.”
It might be contended that a new warrant of commitment could be issued, if the first one did not comply with the law. This would, seemingly, be erroneous, for Church on Habeas Corpus lays down the following doctrine :
“Where a person adjudged to be in contempt- has been taken to jail under an illegal commitment, he cannot be held under a legal commitment subsequently made out. This rule would not apply, however, where the first commitment was merely informal and not illegal.”
*445In the case before this court the warrant was not informal, but absolutely void. The law is well settled, and based upon sound logic, that when a court in such incidents has, by its own errors, failed, it is not permitted to harass and vex a person the second time; its faculties are exhausted.
Therefore, if the first mentioned law contained in the Revised Statutes is still in force, and the warrant of commitment being invalid and inoperative, the sentence of the court is void and the prisoner must be discharged. '
From a further examination of the record I also find that the court has failed to comply with the law from its incip-iency.
Section 3 indicates that when the contempt is not committed in the immediate presence of the court “the person or persons charged therewith must be notified of the accusation and be given a reasonable time to defend against such charge.” There must be an accusation. An accusation as defined by the authorities is a “charge made to a competent officer against one who has committed a crime or misdemeanor, so that he may be brought to justice.”
The record of the District Court of Mayagüez is before this court. It does not contain any accusation of any kind. The Hon. Arturo Aponte acted entirely upon his own motion. The basis of the proceedings is his own order to show cause. It begins:
“Bule for contempt. Now comes Arturo Aponte, presiding judge of the District Court of Porto Bico, for the District of Mayagüez, upon bis own motion states,” etc.
The judgment or sentence of the court, after the trial *447does not set forth, in any direct manner, the act or acts constituting the contempt, nor the time and place of the commission thereof. True it is that the statute does not require this, but the law is imperative that a warrant ox commitment must contain those requisites. The judgment forms the basis for the warrant. If the former is insufficient the latter must naturally be fatal. And even if it were permitted to reform and amend the warrant, which, however, I hold could not be permitted, there would be nothing from which to amend. It is therefore evident that the whole contempt proceedings before Judge Aponte were void ab initio.
But said section 3 also says: “and be given a reasonable time to defend against said charge”. If Judge Aponte considered that Bird could have been before his court at the time he was required to appear, but disregarded the order, he could have issued a warrant for his arrest, and punished him for another contempt; but he had no authority to proceed with the case during his absence, a fortiori, when his attorney made a proper application to the court for witnesses to be summoned for the defense of his client.
The Supreme Court of California in the suit of McClatchy v. Superior Court, 119, p. 419, decided this question fully.
This was a case where a charge for contempt of court was made against the publisher of a newspaper, alleging publications therein which were grossly inaccurate and false, and intended to degrade the said court, and incite public prejudice and contempt against it, and were unlawful interferences with the proceedings of the court. At the trial of the •case the defendant, the publisher, offered certain testimony to show that the publication in the newspaper was true. This the court denied, and the case- being carried to the Supreme Court, we find the following expressions by that tribunal:
*449“And the party charged therewith (contempt) although the proceeding is more or less summary in character, has the same inalienable right to be heard in his defense, especially in instances like the present, of a mere constructive contempt, as he would against the charge of murder, or any other crime.”
On this subject it is said in Rapalje on Contempts, section 111:
“Contempt of court is of two kinds — that which is committed in open court, and that which is committed out of view and hearing of the court. For -the punishment of the first, by commitment and fine, no proceeding need be taken contradictorily with the offender, but for the punishment of the latter and by the same means, the offender must be allowed to offer evidence and argument in his defense; otherwise any judgment which the court may pronounce will be absolutely void.”
The court, continuing, refers to the case of State v. Orleans Civil Judges, 32 La. Ann. 1256, 1262:
“ The charge of contempt should not in any case be followed by a sentence of imprisonment unless after a rule to show cause has been granted, and the party defendant therein is permitted to offer evidence and argument. And it is held that anything else than that would constitute a want of ‘ due process of law and proceeding not in accord with the law of the land’ rendering the judgment void.”
The court then cities a decision of the Supreme Court of the United States, the highest tribunal in the land:
“It is a rule as old as law, and never more to be respected than now, that no one shall be personally bound until he has had his day in court, by which is meant until he has been duly cited to appear and has been afforded an opportunity to be heard. Judgment without such citation aud opportunity wants all the attributes of a judicial determination; it is judicial usurpation and oppression, and can never be upheld where justice is duly administered.” Galpin v. Page, 18 Wall. 350.
In continuation the Supreme Court of California says:
*451“These considerations make it manifest that petitioner at his trial in the court below was denied that ‘ due process of law ’ requisite to a valid conviction; and for that reason the order convicting him of contempt must be annulled”.
In the ease before the Supreme Court of California the editor of the newspaper was personally in’ court during the trial, whilst in the ease before this District Court of Maya-giiez, the editor Bird was not even present. Church on Habeas Corpus lays down the following doctrine:
“A summary conviction which does not show that evidence against the prisoner on his examination was given in his presence is bad; and the rule applies as well to warrants of commitment, which operate in themselves as -convictions. On the return of warrant to a writ of habeas corpus ad subji-ciendum, and which fails to show that the evidence heard before the committing magistrate was given in the presence of the party to be charged the court will release the prisoner from custody.”
We must next consider whether said law was repealed by the Penal Code, which, by its section 14, provides, that “every person guilty of any contempt of court, of either of the following kinds, is guilty of a misdemeanor.” Art. 7.— “The publication of a false or grossly inaccurate report of the proceedings of any court.” The present case might perhaps come within said article.
The Code provides. that contempt of court shall be a misdemeanor, and we are met by. the proposition: what is ■a misdemeanor, how are offenses of that character prosecuted and tried and how punished ? The following sections of the Penal Code answer the questions.
“Section 14. — -A felony is a crime which is punishable with death, or by imprisonment in the penitentiary. Every other crime is a misdemeanor.”
“Section 16. — Except in cases where a different punishment is prescribed *453by this Code every offense declared to be a misdemeanor is punishable by imprisonment in jail not exceeding two years or by a fine not exeeding two hundred and fifty dollars, or by both.”
“Section 3. — Every offense of which the District • Court has jurisdiction must be prosecuted by information filed by the prosecuting attorney in open court, verified by his affidavit that the information is based upon testimony of witnesses sworn before him or before the justice of the peace;.”
“Section 66. — All the forms of pleadings in criminal actions, and the rules by which the sufficiency of pleadings is to be determined, are those prescribed by this Code.”
“Section 67. — The first pleading on the part of the People is the information.”
“Section 68. — The information is an allegation in writing made to a District Court by the prosecuting attorney charging a person with a public offense.”
“Section 69. — The information when filed shall be known as the presentment and must be presented to the court and be filed with the clerk thereof.”
Granting that the Penal Code repealed the general law contained in the Revised Statutes, and arguing along those lines, contempt of court would he a misdemeanor, and the law of Criminal Procedure must he applied. The record of the District Court in this case plainly shows that the proceedings prescribed by the law of Criminal Procedure were totally ignored. Not alone that the prosecuting officer did not present any sworn information, as imperatively required by law, he did not even take part in the proceedings. The Hon. Arturo Aponte, one of the judges of the District Court, tried the case alone. Such a proceeding is certainly in absolute violation of the existing criminal procedure.
The law creating the District Courts reads as follows:
“Each District Court will be composed of three judges, one of whom shall *455be presiding judge and who jointly shall constitute the bench in civil and criminal business.”
Three judges constitute the District Court, except in jury trials, when, in accordance with a certain law of the Insular Legislature, one judge alone can preside, in such cases. In all others the District Court must he composed of three judges, “who jointly constitute a bench for civil and criminal business.”
Although the alleged contempt referred to a proceeding of the District Court in a jury trial, where Judge Aponte alone constituted the court, nevertheless he alone had no jurisdiction to try a case of contempt as a misdemeanor. He had no more authority to. try this misdemeanor than any other offense of a like category.
In a recent case before this court, Mauleón, Ex parte, (ante p. 227); there was cited from Ex parte Schaw, 7 Ohio State 81, the following language :
“But if the court has sentenced the relator for an offense over which by law it had no jurisdiction, so that the proceedings and sentence were manifestly coram non judice, and void, the imprisonment following such void sentence would have been unlawful and the relator entitled to be discharged on habeas corpus”.
We also find in Church on Habeas Corpus,
“Section 326.- — -If it appears that the court rendering a judgment for contempt was not legally constituted, the act is without authority, and void, and the prisoner will be discharged on habeas corpus.”
The Code of Criminal Procedurel (Habeas Corpus), by its section 483 declaring when a prisoner must be discharged on habeas corpus, states:
“Article 1. — When the jurisdiction of such court or officer has been exceeded.”
*457Judge Aponte alone did not constitute the court to try a misdemeanor, and upon the theory that the law, as contained in the Penal Code, making contempt of court a misdemeanor to be the only one in existence in Porto Rico, all the proceedings must he void, and the prisoner must likewise be discharged.
It might be contended, and with all propriety, that, at a trial for a misdemeanor, the defendant need not be in court when represented by attorney, but in view of the very fact that this issue was never tried as a misdemeanor, nor by a court having jurisdiction of misdemeanors, I need not consider whether or not the defendant’s attorney consented that the trial should proceed during the absence of his client.
These views would dispose of the case, but this court has other functions to perform, and it becomes its duty, when called upon, to solve doubtful and ambigous questions, so as to establish precedents for the better administration of justice.
We have stated before what the object and purpose of the Legislature must have been in enacting laws for the punishment of contempt of court. By the law of the Revised Statutes, each court is made its own judge to try such incidents, but if the Penal Code repeals that law, a contempt is a misdemeanor, which must be referred to and tried by the courts of the proper urisdiction. In this present case, the District Court of Mayagíiez and not the Hon. Arturo Aponte alone would have had to try the case, the Fiscal of the District Court having first performed all the requirements prescribed by law. The inherent power tacitly granted by the Foraker Law to the courts to punish for contempt would have been taken away by the Penal Code to the effect that if a person would commit a contempt of court against this Supreme Court, and this court not having any *459original jurisdiction, application would have to be made to the District Court to punish the contempt committed. Inconceivable and illogical as this appears it would nevertheless be the only natural consequence, but we can safely assert that such was never the intention of the Legislature.
Both laws were enacted on the same day and had the Legislature intended that the Penal Code should repeal the general law, contained in the Revised Statutes, although the former took effect four months later, it would have indicated its purpose in plain terms. It could not be consistently urged that that body should have aimed to grant each court and each judge the prerogative to punish contempts of court for- the period of four months only, and thereafter, in some instances, to call in’ other judges to perform those functions with them or have another tribunal to do so.
It could be contended that the repeal is by implication. The Supreme Court of the United States has held: “Repeals by implication are not favored. They are seldom, except on the ground of repugnance, and never when the former act can stand together with the new act.” Ex parte Yerger, 8 Wall. 105. But the Legislature having in mind possibilities and probalities and so as to avoid conflicts, enacted the following sections in the same Penal Code.
“ Section 6. — Nothing in this act affects any of the statutes, laws, orders or parts thereof enacted by the Congress of the United States, the Executive Council under power granted by law, or the Legislative Assembly of Porto Rico, except so far as they have been repealed or affected by subsequent laws.”
“ Section 7. — This code does not affect any power conferred by law upon any court martial, or military authority or other officer, to impose or inflict punishment upon offenders; nor any power conferred by law upon any public body, tribunal, or officer, to impose or inflict punishment upon offenders.”
From these sections it appears that the Legislature did *461not intend to repeal, but on the contrary, to leave intact the prerogative law of the Revised Statutes, “ defining the offense of contempt of court,” etc. The same being i£a law of the Legislature of Porto Rico,” and thereby “imposing and inflicting punishment on offenders.”
It is conceded, that the Penal Code was copied from the statutes of Montana, and the latter from those, of California. The language of the statute here is verbatim that of Montana. When one state adopts the laws of another state they are accepted, together with the decisions of the Supreme Court of the original state, is a well established doctrine.
We find in the decisions of the Supreme Court of Montana, vol. 24, State v. District Court, 35, the following:
“ One guilty of contempt of court by wilful disobedience of an injunction order lawfully issued may be punished under the summary procedure provided for by Title V, supra, or he may be dealt with under the Penal Code as for a misdemeanor, under section 293 where a contempt of court is specifically made a misdemeanor.
“The statutes of contempt of court in Montana were taken from California, where they have been examined and passed upon repeatedly. (Ex parte Gould, 99 Cal. 360, 21 L. R. A. 751; McClatchy v. Superior Court, 119 Cal. 419, 51 Pac. 696, 39 L. R. A. 691.) In ex parte Hollis, 59 Cal. 408, followed in Ex parte Gould, supra, contempt of court is decided to be a public offense, punishable by indictment or information, as well as by the summary proceedings prescribed by the Code of Civil Procedure.”
It is therefore evident that in the States of Montana and California two concurrent remedies exist to punish con-tempts of court; one by the summary proceeding and the other trying it as a misdemeanor.
Here likewise we have, two concurrent proceedings; the one by applying the law of contempt of the Revised Statutes, *463the other following the Penal Code. Both laws can well stand together. They are not in conflict; there is no ground of repugnance.
I am therefore of the opinion that the decisions of the Supreme Court of Montana and of California are applicable and that, like in those states, also in Porto Pico, there are two concurrent proceedings to punish for contempt of court, hut a strict compliance with the one or the other law would he required.
In the case before this court neither the one nor the other has been followed.