Subsequent to the filing of the departmental opinion in this case—to which we refer for a statement of the facts involved (State v. Estill, 50 Wn. (2d) 331, 311 P. (2d) 667 (1957))—this court granted a petition for rehearing.
After argument en banc, a majority of the court agrees with the conclusion of the departmental opinion that the judgment of contempt must be reversed, but does not subscribe to the reasons set forth.
This is a proceeding for direct contempts committed in the presence of the trial court as distinguished from constructive contempt. See State ex rel. Erhardt v. MacGillivray, 52 Wn. (2d) 485, 326 P. (2d) 738 (1958). The court’s order adjudging contempts of court and imposing penalties sets out in detail the testimony of each appellant which was held to be false and to constitute perjury.
While perjury, or false swearing, may constitute contempt, two additional elements must be present: (1) the court must have judicial knowledge of the falsity; (2) the false testimony must obstruct the court in performance of a judicial function. 17 C. J. S. 31, Contempt, § 24.
Although the opinion (50 Wn. (2d) 331, 333, 311 P. (2d) 667), states:
“We do not question the court’s finding that the testimony was perjury or that it was intentional and willful, and given for the purpose of affecting the outcome of the trial in which they were materially, though indirectly, interested.”;
the court could not judicially know the testimony was false until testimony was taken to establish the falsity.
*578It is stated in Fawick Airflex Co. v. United Electrical Radio & Machine Workers of America, Local 735, 87 Ohio App. 371, 382, 92 N. E. (2d) 436 (1950):
“By the greater weight of judicial authority, in order to hold a witness guilty of summary contempt for testifying falsely, the court must have judicial knowledge that the witness’s sworn testimony was in fact false. A well founded belief of its untruthfulness is not sufficient. . . . ”
In In re Michael, 326 U. S. 224, 229, 90 L. Ed. 30, 66 S. Ct. 78 (1945), an adjudication of contempt on the ground of perjury was reversed because, as here, collateral evidence was necessary to prove the perjury. The court there said:
“ . . . In the instant case there was collateral inquiry; the testimony of other witnesses was invoked to convince the trial judge that petitioner was a perjurer. Only after determining from their testimony that petitioner had wilfully sworn falsely, did the Court conclude that petitioner ‘was blocking the inquiry just as effectively by giving a false answer as refusing to give any at all.’ This was the equivalent of saying that for perjury alone a witness may be punished for contempt. . . . ”
The same rule is announced in People v. Harrison, 403 Ill. 320, 86 N. E. (2d) 208 (1949).
Because it was necessary for the trial court to receive evidence in order to establish the falsity of the testimony, it did not judicially know that the accused’s testimony was false; therefore, it was not a direct contempt. The judgment must be reversed.
Further, assuming that the testimony was false, there is no showing that it obstructed the court in the performance of its duty.
In Ex Parte Hudgings, 249 U. S. 378, 383, 384, 63 L. Ed. 656, 39 S. Ct. 337, 11 A. L. R. 333, the United States supreme court held:
“ . . . that in order to punish perjury in the presence of the court as a contempt there must be added to the essential elements of perjury under the general law the further element of obstruction to the court in the performance of its duty. ... If the conception were true, it would *579follow that when a court entertained the opinion that a witness was testifying untruthfully the power would result to impose a punishment for contempt with the object or purpose of exacting from the witness a character of testimony which the court would deem to be truthful; and thus it would come to pass that a potentiality of oppression and wrong would result and the freedom of the citizen when called as a witness in a court would be gravely imperiled.”
The judgment, then, must be reversed because the testimony, assuming it was false, did not obstruct the court in the performance of its functions.
We turn next to that portion of the departmental opinion which states:
“As to the existence of common-law contempts in this state, we have set out the statutory definition in its entirety because its comprehensive nature indicates that the legislature intended to cover the entire field of contempts. The legislature has the power of superseding the common law. It has elected to do so in this instance. We, therefore, limit ourselves to an interpretation of the statute.” State v. Estill, supra, at p. 334-35.
A majority of the court does not agree that the legislature has the power to supersede the inherent power of a constitutional court to punish for contempt; nor does a majority of the court believe that the legislature has attempted to do so.
“Except where the constitution otherwise provides, the legislature may not destroy, or abridge, or limit, as by definition, the inherent power of courts to punish for contempt. . . . ” 17 C. J. S., Contempt, 58, § 43 (b).
It is stated in 12 Am. Jur., Contempt, 424, § 49, as follows:
“Generally if a court derives its powers from the Constitution, then its power to punish for contempt can be withdrawn only by constitutional provision; if it obtains its powers from the legislature, the legislature may restrict it in this respect as well as in others. ...”
The court so held in State ex rel. Dorrien v. Hazeltine, 82 Wash. 81, 87, 143 Pac. 436 (1914):
“We have held that the court has inherent power to punish for contempt, both direct and constructive, a power *580proceeding from the constitution, and that, while the legislature may not take away the power, it may define the procedure by which the recusant party may be brought before the court, and the procedure to be followed at the trial. ...”
And, again, in Blanchard v. Golden Age Brewing Co., 188 Wash. 396, 63 P. (2d) 397 (1936), this court held:
“. . . But the courts are not required to recognize a legislative restriction which has the effect of depriving them of a constitutional grant or of one of their inherent powers. What the legislature has not given, it cannot take away. The legislature cannot indirectly control the action of the court by directing what steps must be taken in the progress of a judicial inquiry, for that is a judicial function. . . . [p. 418]
“The power to punish for contempt of court being essential to the efficient action of the court and the proper administration of justice, it is lodged permanently with that department of government, and the legislature may not, by its enactments, deprive the court of that power or curtail its exercise. ...” [p. 424]
In Keller v. Keller, 52 Wn. (2d) 84, 86, 323 P. (2d) 231 (1958), this court pointed out that contempt proceedings in this jurisdiction may be placed in three categories, one of which is
“. . . contempt proceedings resulting from the long-exercised power of constitutional courts (1) to punish summarily contemptuous conduct occurring in the presence of the court, (2) to enforce orders or judgments in aid of the court’s jurisdiction, and (3) to punish violations of orders or judgments.”
Other jurisdictions have also concluded that constitutional courts have inherent power to punish for contempt, a power which cannot be taken away by the legislature.
“A power which the legislature does not give, it cannot take away. If power, distinguished from jurisdiction, exists independently of legislation, it will continue to exist notwithstanding legislation.” Hale v. State, 55 Ohio St. 210, 215, 45 N. E. 199, 200 (1896).
Also: In re San Francisco Chronicle, 1 Cal. (2d) 630, 634, *58136 P. (2d) 369 (1934); Fisher v. Pace, 336 U. S. 155, 93 L. Ed. 569, 69 S. Ct. 425 (1949).
The judgment is reversed.
Hill, Donworth, Finley, Rosellini, Ott, Foster, and Hunter, JJ., concur.