(specially concurring):
I concur in the result reached by the majority opinion, but I am concerned with language which implies that the warden of the State Prison can be held in contempt of court even though he was obeying the law as interpreted by the Attorney General, his legal counsel.
*431The early cases of State v. Superior Court, 30 Ariz. 332, 246 P. 1033 (1926), and In re Wright, 36 Ariz. 8, 281 P. 944 (1929), have never been specifically overruled, but I believe that Ellison v. Mummert, 105 Ariz. 46, 459 P.2d 306 (1969), tends to do so. In that case we said:
“An adjudication of contempt must be based on specific facts found which show knowledge of the order, ability to comply with it, and contumacious conduct on the part of the accused amounting to wilful violation.” 105 Ariz. at 46, 459 P.2d at 306.
Obviously the alleged contempt here is not criminal and therefore ARS § 12-864 applies. Under that statute wilfulness is a necessary element of the contemptuous act alleged.
With the foregoing reservation, I concur.