Appellants interposed a motion to quash the show cause order, upon which they were hailed into court, on the ground that the charge constituted a criminal contempt in contemplation of Rem. Rev. Stat., § 1049 [P.C. § 7442]; and, therefore, the proceeding could be initiated and maintained only by the prosecuting attorney on behalf of the state, in accordance with Rem. Rev. Stat., § 1054.
I think the motion was well taken and should have been granted. Obviously, the purpose of the proceeding *Page 457 was to punish appellants for violation of the court's decree of March 13, 1939. To punish was the full extent of the court's power in the matter. As I read it, that is the substance of the holding in the majority opinion. Clearly, the facts of record bring this proceeding within the category of criminal contempt as defined by this court; therefore, the proceeding must be instituted and maintained by the prosecuting attorney on behalf of the state in accordance with Rem. Rev. Stat., § 1054. In reCoulter, 25 Wash. 526, 65 P. 759; In re Harrington's Estate,163 Wash. 516, 1 P.2d 850. In the former case, the court said, p. 529:
"When, therefore, the lower court proceeded to punish the petitioner without following the prescribed procedure, it proceeded illegally, and without authority of law. It is no answer to say that the facts were brought before the court by the return of the officer. If the court may derive knowledge of the violation of its order from this source, it may, from any other source, even the oral statement of a stranger to the proceedings.More than this, the statute is imperative." (Italics mine.)
And, in the latter, p. 519:
"This is a contempt proceeding. It was instituted to punish the appellant for disobedience of the court's order. It is criminal and punitive in its nature. For violation of the order to restore to the estate the money he had borrowed therefrom, the court found the appellant guilty of contempt, fined him one hundred dollars and costs, and committed him to prison to there remain until such fine and costs were paid. . . .
"The proceeding being criminal in its nature — the object of the proceeding was punishment — the state is the real prosecutor, and under our statute the proceeding should have been brought in the name of the state."
In attempting to make the decree of March 13, 1939, coercive by broadening it into a mandatory order directed to respondent, the trial court could not transform that which was necessarily a criminal contempt *Page 458 into a civil contempt. The majority have, it seems to me, recognized this by striking the mandatory features from the order of contempt.
I dissent.
MALLERY, J., concurs with BLAKE, J.