author: KENNISH, J. WOODSON, J.

text:
    Ex parte H. P. CREASY, Petitioner.
    In Banc,
    June 10, 1912.
    1. HABEAS CORPUS: Contempt: Conclusiveness of Judgment. The judgment of the circuit court committing the petitioner for contempt is not conclusive upon the facts when issues as to facts are made upon the hearing of the writ of habeas corpus in the Supreme Court. If the facts show that petitioner was not guilty of contempt the judgment adjudging him, guilty is not conclusive, and the Supreme Court will go behind the recital in the judgment committing him and ascertain if the facts amount^to a contempt of court. A judgment committing petitioner for contempt can be attacked in habeas corpus for (1) want of jurisdiction over the person, (2) want of jurisdiction over the subject-matter and (3) want of jurisdiction in the particular case owing to the fact that the facts thereof do hot constitute contempt, although the judge rendering it has adjudged them to he contemptuous and although jurisdiction of the person and subject-matter may fully appear.
    2. -: -: Equivocating Answer at Grand Jury Inquiry. A witness who answered a question propounded to him by the foreman of the grand jury, by whom he was asked if at a certain hour and place he had bought whiskey, with the words: “I could not say; possibly I did. I cannot say; probably I did,” was not guilty of contempt. The answers may have been untruthful, and may tend to show perjury, but they are not sufficient to support a charge of contempt for refusing to answer the questions. And being adjudged guilty of contempt where there was no contempt, he is entitled to his discharge.

      Held, by WOODSON, X, concurring, that since the witness was sworn and did not refuse to answer, the court had no power to try him for contempt, hut if his answers were untrue he could he tried only by a jury and for perjury.
    3. -: -: Judgment Must Recite Facts. The statute requires that whenever any person shall be 'committed for any contempt the particular circumstances of his offenses shall be set forth in the order or warrant of commitment; and that means that, when a witness is punished for a contumacious and unlawful refusal to answer any legal and proper interrogatory ' propounded to him by the grand jury, both the questions and his answers, if he did answer, shall he set forth in the judgment, and if he refused to answer the words of his refusal should he set out; and if the judgment recites that the court believes and finds that the witness was wilfully ’ withholding proper information sought by the grand jury, the facts upon which that conclusion is based should be set forth.

      4. -: -: Excessive Punishment: Statute. A commitment for contempt to six months’ imprisonment is unlawful. The cases of State ex inf. v. Shepherd, 177 Mo. 179, and Railroad v. Gildersleeve, 219 Mo. 170, holding invalid Sec. 3882, R. S. 1909, are overruled, for the reasons stated hy RAMM, X, in the Gildersleeve case.
    5. --: -: -: Until Witness Will Testify. The statute permits a witness to he committed to jail for refusing to testify only “until he gives such evidence.” A commitment which shuts off the witness’s right to purge himself of the contempt is unlawful.
    Habeas Corpus.
    Petitioner discharged.

      McBain & Ciarle for petitioner.
    (1) The record in this case affirmatively shows that the petitioner was not in contempt of court and did not refuse to answer questions asked him by the foreman of the grand jury, and a court has no power or authority to punish one for something that in point of law and fact is not a contempt of court. State ex rel. v. Lazarus, 37 La. Ann. 314; In re Clark, 208 Mo. 121; In re Dell, 32 Kan. 668; In re Ayers, 123 U. S. 507; Ex parte Fisk, 113 U. S. 713; Bushell’s Case, 1 Vaughn, 135, 6 Hów. St. Tr. 999; People v. Kavanaugh, 220 111. 49; State ex rel. v. Wear, 135 Mo. 265; 7 Am. & Eng. Ency. Law (2 Ed.) 36; 2 Church on Habeas Corpus (2 Ed.) 454; Wyatt v. People, 17 Colo. 261; In re Shortridge, 34 Pac. (Cal.) 227. The true state of the facts may be shown, upon habeas corpus, though inconsistent with the recitals in the commitment, to show that in point of law and fact there was no contempt of court. In re Shull, 221 Mo. 623; In re Clark, 208 Mo. 121; Ex parte O ’Brien, 127 Mo. 477; Ex parte Duncan, 62 S. W. (Tex.) 758; Ex parte Irvine, 74 Fed. 954. The judgment and commitment in this case is insufficient and void because it fails to set forth the facts constituting the alleged contempt. Sec. 3884, R. S. 1909; In re Shull, 221 Mo. 623; Ex parte Kearney, 7 Wheat. 38; Church on Habeas Corpus (2 Ed.), sec. 308; Hawes v. State, 46 Neb. 149; Bachelor v. Moore, 42 Cal. 412; Schwarz v. Court, 111 Cal. 106. (2) The punishment assessed against the petitioner —six months’ imprisonment — is excessive and contrary to common law practice and the statutes of Missouri, and beyond the power and authority of the circuit court that imposed the punishment., R. S. 1909, secs. 5080-82 and 6372; Ward v. State, 2 Mo. 120; Ex parte Renshaw, 6 Mo. App. 474; In re Brockman, 233 Mo. 135; Ex parte Eichel, 223 Mo. 258; Ex parte Grauss, 223 Mo. 277; Bracy’s Case, 5 Mod. 308; People ex rel. v. Fancher, 9 N. Y. Sup. Ct. 226; In re Clark, 28 L. R. A. (Conn.) 242. Sec. 6372, R. S. 1909, giving the court power to commit a witness to jail, until he shall answer, where the witness refuses to answer, is constitutional. Railroad v. Gildersleeve, 219 Mo. 170; Pub. Co. v. Journal, 58 N. Y. Supp. 708; Ex parte Wright, 65 Ind. 504; Ex parte Crenshaw, 80 Mo. 447; State ex rel. v. Bland, 189 Mo. 197; State ex rel. v. Shepherd, 177 Mo. 205; State v. Morrill, 16 Ark. 386; Coles v. Egan, 52 Conn. 219; Wyatt v. People, 17 Colo. 261; Ex parte Edwards, 11 Fla. 174; Swafford v. Berrong, 84 G-a. 65; Little v. State, 90 Ind. 338; Stewart v. State, 140 Ind. 7; In re Millington, 24 Kan. 214; Arnold v. Comm., 80 Ky. 300; State v. St. Paul, 104 La. 203; Langdon v. Judges, 76 Mich. 358; Sloman v. Judges, 95 Mich. 264; State ex rel. v. Missen, 108 N. W. (Minn.) 513; State ex rel v. Judges, 24 Mont. 33; In re Patterson, 99 N. C. 407; Matter of Hatfield, 45 N. Y. Supp. 270; Meyers v. State, 46 Ohio St. 473; McCarthy v. State, 89 Tenn. 543; Ex parte Tinsley, 37 Tex. Crim. App. 517; State v. McClaugherty, 33 W. Ya. 250; In re Prince, 44 Wis. 411.

      E. G. Anderson and W. H. Sapp for respondent.
    (1) When a party is brought before a court on a writ of habeas corpus, and the return shows he is in custody under the commitment for contempt, the only questions to be considered are: (a) Had the court jurisdiction to commit, and (b) is the commitment in legal form charging the contempt? The primary and sole purpose of the writ of habeas corpus is to institute an inquiry for the purpose of determining whether the officer detaining the petitioner is authorized by law to so restrain him of his liberty. Its attack is directed against the paper (commitment) under which the officer is operating. For this reason it is a collateral proceeding in so far as the judgment of the court on which the commitment is based, is concerned. Naturally the questions in all such proceedings are: (a) Had the court jurisdiction to commit, and (b) is the commitment in legal form charging the contempt. Sec. 2472, R. S. 1909, makes this very plain in so far as the duty of the superior court is concerned in a habeas corpus proceeding where the records disclose a commitment for contempt. Ex parte Millet, 37 Mo. App. 76; Ex parte Groodin, 67 Mo. App. 637; Ex parte Toney, 11 Mo. 661; Ex parte McKee, 18 Mo. 600; Church on Habeas Corpus, sec. 315; 9 Cyc. 64. (2) , The commitment was issued by a constitutional court proceeding, according to the course of the common law, which unquestionably had authority to commit for contempt. Constitution, art. 6, sec. 22; Sec. 3846, R. S. 1909; Railroad y. Grildersleeve, 219 Mo. 170. (3) The judgment and commitment are in legal form and clearly charge the facts constituting the contempt. The facts recited in the judgment and commitment constitute and charge the contempt. In re Waldrip, 1 Ariz. 482; R. S. 1909, sec. 3884; In re Shull, 221 Mo. 623; In re Cogshall, 100 Mo. App. 585; Ex parte Millett, 37 Mo. App. 676; Ex parte Priest, 76 Mo. 229; Ex parte McKee, 18 Mo. 599. (4) Petitioner was guilty of a direct contempt; therefore punishment was summarily inflicted without a hearing’ or opportunity given, to petitioner to make defense which was regular. R. S. 1909, secs. 3883, 5080 and 5081; Ex parte Eichel, 223 Mo. 258; In re Clark, 208 Mo. 146; Ex parte Renshaw; 6 Mo. App. 474; Ex parte Buskett, 106 Mo. 602; Ex parte Mason, 16 Mo. App. 41; Ward v. State, 2 Mo. 120. (5) No evidence can he admitted or proof made of facts inconsistent with the recitals in the judgment and commitment to show that said recitals are false. The recitals in a judgment rendered and commitment issued, for contempt by a constitutional court possessing common law powers, are conclusive. Ex parte Millet, 37 Mo. App. 76; Ex parte Renshaw, 6 Mo. App. 474; Ex parte Hollwedell, 74 Mo. 473; Ex parte Goodin, 67 Mo. 637. The judgment of a court of record cannot he attacked collaterally although it might he possible to introduce an abundance of evidence to show that the facts on which the same was rendered were false. Ex parte Toney, 11 Mo. 661; In re Truman, 44 Mo. 195; Ex parte Page, 49 Mo. 292; Latshaw v. McKee, 50 Mo. 384; Hurd v. Sock, 81 Mo. 616; Neenan v. St. Joseph, 126 Mo. 93; Ex parte Gray, 77 Mo. 161; State ex rel. v. Riley, 219 Mo. 681. The punishment assessed against the petitioner is not excessive and is not contrary to the common law practice. Secs. 5082 and 6372, R. S. 1909, are unconstitutional and void in that the Legislature attempted thereby to abridge, limit, and impair an inherent power, viz.: Power to punish for contempt, which right is vested in all constitutional courts which have common law powers. Railroad v. Gildersleeve, 219 Mo. 170; State ex inf. v. Shepherd, 177 Mo. 209; State ex rel. v. Ryan, 182 Mo. 349. Should the court reverse the holdings of these cases, then we take it, that this court will not discharge the petitioner for a mere irregularity in the. proceedings. For if the punishment assessed by the circuit court of Boone county is in excess of that permitted by law, then this court will limit the punishment to such as may be lawful. Secs. 2511 and 5316, R. S. 1909; Ex parte Crenshaw, 80 Mo. 456; In re Boquette, 14 Mo. App. 576; Ex-parte Kinney, 105 Mo. 535; State v. Bockstruck, 136 Mo. 335; In re Knaup, 144 Mo. 665.
   KENNISH, J.

The petitioner, H. P. Creasy, presented his application for a writ of habeas corpus to a member of Division No. 2 of this court, in vacation, alleging in his petition that he was unlawfully imprisoned and restrained of his liberty by the sheriff of Boone county. The writ was granted as prayed,' and made returnable to said Division No. 2, at the October term thereof, 1911. In due time the sheriff made return, whereupon the petitioner filed a reply, which, under the agreed statement of facts, may be treated as a demurrer to the return. The case was submitted for decision upon an agreed statement of facts which fully covers every question presented for decision. Roy, C., sitting in said division and to whom the case was assigned, submitted an opinion, concurred in by Blair, C., sustaining the judgment of the trial court committing the petitioner for contempt, and remanding him to the custody of the sheriff. That opinion is in accord with the cases of State ex inf. v. Shepherd, 177 Mo. 205, and Railroad v. Gildersleeve, 219 Mo. 170, hereinafter referred to. Without adopting that opinion as the opinion of this court (there being grave questions involved, heretofore decided by a divided Court in Banc contrary to the views of Division Two) the cause was transferred by said division to the Court in Banc, where it was again argued and submitted, and assigned to the writer for an opinion.

Before the case was so assigned in Banc, an opinion dissenting from that prepared by Rot, C., was filed by my learned associate, Graves, J. After an examination of the record and the questions of law involved, I have concluded that the opinion filed as a dissent contains such an exhaustive review of the law and is so sound in its reasoning and conclusions that it would be useless to attempt to add thereto. I shall therefore set out, as a statement of the case, the agreed statement of facts filed by the parties hereto, and adopt, as the opinion, what was thus filed by Graves, J., as a dissent.

.AGREED STATEMENT OP FACTS.

“It is agreed by and between petitioner and respondent herein, for the purpose of avoiding the necessity of taking testimony, that this, cause shall be submitted to the court upon the following statement of facts, which it is agreed, if the evidence were taken, would be disclosed by the evidence; it being further agreed that any fact hereinafter set forth may be objected to for irrelevancy or immateriality in the argument and submission of this cause, by either party hereto.

“It is further agreed that respondent waives no right to object to the consideration of the facts leading up to and surrounding the commitment of petitioner.

“1. That the grand jury called at the October term of the Boone county circuit court, 1911, before which petitioner was called as a witness, was a duly called and qualified grand jury and that W. F. Robinson was the duly authorized and acting foreman of said grand jury.

“2. That H. P. Creasy was duly subpoenaed before the grand jury on the 4th day of October, 1911. That at the time said Creasy appeared before said grand jury, said grand jury had under consideration the investigation of the illegal sale of intoxicating liquors in Boone county by divers and sundry persons.

“That petitioner was then asked the following questions by the'foreman of said grand jury: ‘Q. 1. H. P. Creasy, did you on September 22, 1911, buy one pint of whiskey for Jimmy, the tailor that works for Harrell? Q. 2. H. P. Creasy, did you on Thursday, September 21, 1911, about six o’clock p. m., buy one pint of whiskey for Tom Newby, from the negro, Squire Bannister, at Tom Morris’s drugstore?’

“That said H. P. Creasy replied to said questions that he did not remember whether he did, on September 22, 1911, buy one pint of whiskey for Jimmy, the tailor that works for Harrell, and did not remember whether he did, on Thursday, September 21, 1911, about six o’clock p. m., buy one pint of whiskey from the negro, Squire Bannister, at Tom Morris’s drugstore.

“That upon being further asked and commanded to answer, he made the following reply to the aforesaid questions: Answer to question No. 1: ‘I could not say; possibly I did.’ Answer to question No. 2: ‘I could not say; probably I did.’

‘ ‘ That the said H. P. Creasy was released and discharged from attendance upon said grand jury, but thereafter, on the afternoon of said date, to-wit, October 4, 1911, he was again .summoned to appear before said grand jury and again the questions above referred to, number 1 and number 2, were asked him, and that on this occasion, being the second time he had appeared before said grand jury, petitioner made the same answer, to-wit: Answer to question number 1: ‘I could not say; possibly I did.’ Answer to question number 2: ‘I could not say; probably I did.’

“That thereupon the foreman of the grand jury, W. F. Robinson, wrote out said questions and answers set forth in ‘Exhibit B,’ attached to petitioner’s application for the writ of habeas corpus herein, which questions and answers as there referred to are as follows :

“ ‘Number 1. H. P. Creasy, did you on September 22, 1911, buy one pint of whiskey for Jimmy, the tailor who works for Harrell? Answer. I could not say; possibly I did. Number 2. H. P. Creasy, did you on Thursday, September 21, 1911, about six o’clock p. m., buy one-half pint of whiskey for Tom Newby, from the negro, Squire Bannister,' at Tom Morris’s drugstore? Answer. I could not say; probably I did.” The above questions were asked the witness, Hi P. Creasy, and he made the answers above recorded, which are not satisfactory answers to the grand jury. W. F. Robinson, Foreman.’

“These questions and answers were sent by the foreman of the grand jury as above set forth to the Hon. David H. Harris, judge of the Boone county circuit court then in session, and the court notified the grand jury that the witness was bound to answer these questions, ‘yes’ or ‘no;’ that when the foreman of the grand jury so informed Creasy that, his answers must be ‘yes’ or ‘no,’ he stated that he could not answer the questions ‘yes’ or ‘no.’

“Said H. P. Creasy was then taken before the Hon. David H. Harris, judge of the court aforesaid, and while said court was in session, and he was asked by the court if he fully understood the questions, to which he replied that he did. To refresh his memory he was then asked by the court if he knew the persons mentioned in the questions and if he was in Columbia on the dates named, to which he replied in the affirmative. He was then asked if he was afflicted with a defective memory, to which he replied that his memory was as good as it ever was. It was then explained to him by said court that what the grand jury wanted was an unequivocal answer to their questions, that is, yes or no, and that the events being of such recent occurrence lie certainly should be able to remember them. He then replied to said court, ‘I can’t give them any different answer — this is the best I can do for you.’ And from his manner of replying to the court’s questions and from his general demeanor while before the court, there was no question in the mind of the court that the witness was wilfully and knowingly withholding proper information sought by the grand jury, and that the answer was considered by the court to be evasive and equivocal, and was considered by the court simply a subterfuge to avoid answering at all, and in the opinion of the court amounted to a refusal to answer, and so believing and holding, the court adjudged him guilty of contempt as set out in the order, a copy of which is attached to respondent ’s return.

“3. That respondent holds petitioner by virtue of the order and judgment of the circuit court of Boone county, Missouri, duly entered of record on the 4th day of October, 1911, by the clerk of said court, and a certified copy thereof under the hand and seal of the clerk of sfiid court made out and delivered to this respondent as sheriff of, Boone county, Missouri, and that respondent holds petitioner under no other warrant, commitment or authority other than the order and judgment aforesaid and the certified copy of said order and judgment delivered to said respondent by the clerk of said court as aforesaid. ’ ’

OPINION.

“I. First: I do not agree that the judgment of the court nisi in contempt proceedings is conclusive in this court upon the facts, when issues as to the facts are made upon the hearing of the writ of habeas corpus.

“The writ of habeas corpus has a peculiar constitutional sanctity, which this court will not permit to be frittered away by any judicial ascertainment of the facts, except the ascertainment made by the court trying the case under this peculiar writ of right. Our constitutional provision as to writs of habeas corpus has a deep-seated meaning. It was lodged there for the sole purpose of affording one deprived of liberty the right to have the cause of his detention investigated, and, too, whether such detention was upon the judgment of a court, or was upon some other alleged authority. To say that the committing court, in contempt proceedings, can absolutely conclude an investigation of the facts by the tribunal hearing the writ of habeas corpus, is giving the judge whose court has been the target of an alleged contempt, more power than our Constitution ever contemplated.

“If such be the law, the only thing left for the court hearing the writ of habeas corpus, is to determine whether the judgment and writ of commitment are regular upon their face. If they are, then the prisoner must be remanded, it matters not how flagrantly the offended judge may have disregarded the facts. Judgments in contempt proceedings are in a measure different from other judgments. They are judgments entered by one not altogether disinterested. They may not be cool, dispassionate judgments, but may be shaded by the feelings of one presiding over a court thought to have been outraged by the conduct of a person in attendance upon such court. Human liberty is too sacred under our Constitution to say that, under a judgment emanating from such a source, the actual facts are not for review in the court trying the writ of habeas corpus. Mere jurisdiction of the person and the subject-matter is not and should not be the test of a valid judgment in a contempt proceeding. This is the test in ordinary judgments, but out of respect for constitutional provisions with reference to the writ of habeas corpus, many courts have gone furtlier and as to contempt judgments have said that in order to sustain the contempt judgment, it must not only he shown that the court.had jurisdiction of the person, and of the subject-matter, i. e., contempt, but that it must be shown that under both the law and the facts the particular judgment could be sustained.

“A learned discussion of this exact point is found from the pen of Davidson, P. J., of the Texas Court of Criminal Appeals, in the case of Ex parte Duncan, 62 S. W. 758. In the course of his opinion in that case Judge Davidson says:

í í < There is nothing in evidence before this court, outside the facts recited in the judgment entered on the 21st of March, which shows that relator made use of any language in any way discourteous, or which could have been, under the circumstances, construed in any other way than an indignant protest of .an unoffending citizen against the unlawful arrest and humiliation to which he had been subjected, without legal authority, nor Was his manner offensive or discourteous, but, upon the contrary, all the evidence (the facts recited in the judgment excepted) shows that neither his language nor his manner was in any respect offensive, such as to form the basis for the proceeding in contempt. A judgment which is void is conclusive of nothing, and may be the subject of inquiry in a collateral proceeding. The recited facts therein are not binding in any way nor for any purpose. Nor can the court make contempt of that which is not contempt (Church, Hab. Corp., sec. 152); and every attempt to do so would be in excess of authority or jurisdiction, as much so as if the court had no authority or power to punish for contempt, either in relation to the person or subject-matter. There must be contempt in order to justify punishment for that offense. ‘ ‘ There are three essential elements necessary to render conviction valid. These are that the court may have jurisdiction over the subject-matter, the person of the defendant, and the authority to render the particular judgment. If either of these essential elements are lacking, the judgment is fatally defective, and the prisoner held under such judgment may he released on habeas corpus.” [Ex parte Degener, 30 Tex. App. 576; Ex parte Taylor, 34 Tex. Cr. R. 591; Ex parte Tinsley, 37 Tex. Cr. R. 517; Ex parte Kearby, 35 Tex. Cr. R. 531; Id., 35 Tex. Cr. R. 634; Brown, Jur., secs. 109, 110; Ex parte Lake, 37 Tex. Cr. R. 656.] “ Some of the older authorities regard jurisdiction of the matter and the prisoner sufficient to give the court jurisdiction to pronounce the judgment, which could not be successfully assailed by this writ. The rule now, supported by high and abundant authority and excellent reason, is that the court must not only have jurisdiction over the person and the matter, but authority to render the particular judgment. The judgment is not conclusive upon the question of the authority of the court to render it. ' That, as well as any other matter which would render the proceedings void, is open to inquiry. ’ ’ [7 Am. and Eng. Ency. Law (2 Ed.), 36; People v. Liscomb, 60 N. Y. 559; People v. Court of Oyer and Terminer, 101 N. Y. 245, 54 Am. Rep. 691; Ex parte Degener, 30 Tex. App. 566; Holman v. Mayor, 34 Tex. 668; Ex parte Fisk, 113 U. S. 713.]

“Jurisdiction of the person and the subject-matter are not alone conclusive, but the authority of the court to render the particular judgment is the subject of inquiry; and if, upon a review of the whole record, it appears that a judgment’unwarranted by law was entered, the party thus placed in contempt will be released under the writ of habeas corpus. [Same authorities.] Among other jurisdictional defects is also found the following: The infliction of punishment in excess of that allowed by law. [Ex parte Edwards, 11 Fla. 174; Haines v. Haines, 35 Mich. 138; People v. Liscomb, 60 N. Y. 559; In re Patterson, 99 N. C. 407; In re Walker, 82 N. C. 98; Com. v. Newton, 1 Grant Cas. 453; In re Pierce, 44 Wis. 411; as also where the commitment is for an indefinite time. Ex parte Kearby, 35 Tex. Cr. R. 531; Yoxley’s Case, 1 Salk. 351; Rex v. James, 5 Barn. & Ald. 894, 7 E. C. L. 292; Cromartie v. Commissioner, 85 N. C. 211; In re Hammel, 9 R. I. 248; In re Leach, 51 Vt. 630; People v. Pirfenbrink, 96 Ill. 68; State v. Myers, 44 Iowa, 580; Bickley v. Com., 2 J. J. Marsh, 575; Ex parte Alexander, 2 Am. Law Reg. (O. S.) 44; In re Watson, 3 Lans. 408; Com. v. Roberts, 4 Pa. Law J. 126.]

“ ‘If the judgment is not conclusive upon the question of the authority of the court to render it when the facts are not therein recited, then the recitation or partial recitation of the facts in such judgment, and upon which it is predicated, will not add anything more to its sanctity than if unrecited, and such judgment, is as much the subject of attack as if such facts were entirely omitted. If the unrecited facts would not or do not authorize the particular judgment rendered, then the mere recitation of the same facts in the judgment will not make it valid, nor add strength or vitality to it. If the judgment is- void, in either event it is the subject of inquiry in a habeas corpus proceeding, and it must be void to be so attacked. [Authorities supra.] In Parker’s Case, 35 Tex. Cr. 12, this question was expressly decided. The judgment in that case recited, as á fact that the court adjourned on May 14, 1892, and it was attacked on habeas corpus on the ground that this recitation was false, in that the court as a matter of fact did not adjourn on May 14, but did adjourn after twelve o’clock at night of said day, which rendered the judgment void, because said court by law was necessarily terminated at midnight of said day. The contention was that the verdict was returned into court after twelve o’clock at night, and on this issue the case was tried by that court. If the verdict was returned after twelve o’clock at night, it was void, because as stated above, the term of the court had necessarily terminated at the hour of midnight, and before the verdict was rendered. The recitation of fact in the judgment, if frne, constituted the verdict a legal one, and the judgment valid. It was contended in that case, as it is in this, that the recitation of the fact in the judgment was conclusive, and not subject to attack in the habeas corpus proceeding. That court, however, held otherwise, and that it was permissible “to go behind the record, and probe into the very truth of the matter,” etc. Judge Henderson, delivering the opinion of the court, uses this language: “Notwithstanding the recitals in the judgment in this case, we hold that it is competent, under the writ of habeas corpus, to go behind the record, and probe into the very truth of the matter, as to whether an act purporting to have been done during the term was in fact done during the time recited by the record.” See, also, Ex parte Juneman, 28 Tex. App. 488; White’s Ann. Code Cr. Proc., sec. 98, subsecs. 6, 7, also sections 130 and 131, for collated authorities, as well as the authorities cited supra. After hearing the facts in that case, the court sustained the judgment of the trial court. The Parker case, then, is authority for the further proposition that we will hear the facts on controverted issues of this character, and where there is a conflict in the evidence, which may or- may not support the judgment, and there is sufficient evidence to support the judgment, that we will not disturb the ruling of the trial court. The writer did not participate in the decision of the Parker case, as will be seen by the report of that case. That case is decisive against the State’s contention that the recitation of the facts in the judgment is conclusive, and cannot be attacked on habeas corpus, and that case must follow the unbroken line of decisions in this State since Ex parte Degener, supra. The same rule obtains as to orders, etc., of the court. [See Ex parte Lake, 37 Tex. Cr. R. 656.] ’

“In Ex parte Irvine, 74 Fed. l. c. 959, Taft, Circuit Judge, said:

“ ‘Tbe first question for consideration in tbis bearing is bow far tbis court may look beyond tbe commitment and its recitals into tbe evidence and circumstances upon wbicb tbe committing court acted. It is and must be conceded that tbe court bad full jurisdiction to try tbe indictment, to issue tbe subpoena wbicb brought tbe witness to tbe stand, and to direct bim to be. sworn. It bad jurisdiction over tbe defendants and over tbe cause. But tbe act of tbe court here complained of, while in tbe course of tbe trial of tbe indictment and of tbe defendants, concerned one who was not a party to tbe proceeding; and tbe jurisdiction of tbe court with reference to tbe witness is distinct from, though it grows out of, tbe jurisdiction to try tbe indictment. It is possible that tbe witness, by a direct proceeding in error as from a criminal case, might have tbe validity of bis sentence inquired into by an appellate court. Whether tbis be true or not, it is unnecessary to decide. It is clear that tbe decisions of tbe Supreme Court require tbis court to bold that, upon such a question as tbis, tbe testimony and facts upon which tbe court acted in committing tbe witness may and must be considered by tbe court before wbicb tbe validity of tbe commitment is to be tested in a collateral way upon habeas corpus. In tbe Counselman case, tbe whole proceeding, together with all tbe evidence given by tbe witness and tbe action of tbe court, was examined on habeas corpus. In tbe case of Ex parte Fisk, 113 U. S. 713, tbe question was on habeas corpus to determine tbe validity of tbe commitment for contempt of a party defendant to an action removed to tbe Federal court from tbe State court in New York, for bis refusal to answer a question put to bim in a proceeding authorized by a statute of tbe State for tbe examination of defendants before a master prior to the trial. In that ease tbe court held that tbe Statutory procedure was not applicable to tbe Federal court, and therefore that tbe court was without power to compel a witness to answer in such proceeding, and that the commitment was void. In that case tbe entire proceeding before tbe circuit court was considered by tbe Supreme Court. Tbe question whether tbe statute applied to tbe examination of witnesses in a Federal court was a mere matter of procedure, which, with reference to tbe cause under consideration by tbe court, could not affect its jurisdiction. It bad tbe power to decide whether that procedure should be followed in tbe cause, and a judgment rendered by it in tbe cause would not have been void, even though reached by evidence obtained in accordance with tbe State statute; but when tbe statute was used as tbe basis for a commitment for contempt by a witness who declined to answer, its application to tbe Federal practice did affect tbe power and jurisdiction of tbe court to commit tbe witness whose testimony was invoked under it. In tbe light of tbe Counselman case and tbe case of Ex parte Fisk, tbe duty of this court to examine into and consider tbe facts upon which tbe trial court acted in committing tbe petitioners cannot be doubted.- If tbe petitioners, in their refusal to answer tbe questions, were within tbe protection of tbe Fifth Amendment of the Constitution, tbe power of tbe court to commit them for their refusal was exceeded, and tbe invalidity of tbe commitment may be declared in this collateral inquiry.’

“So, too, in this State, Sherwood, J., has gone into the question. In Ex parte O’Brien, 127 Mo. l. c. 489, he says:

“ ‘But there are other grounds to be now examined which go to the validity of tbe commitment in question. Our Habeas Corpus Act contains a section which declares that: “No court under tbe provisions of this chapter, shall in any other matter have power to inquire into the legality or justice of any process, judgment, decree or order of any court legally constituted, nor into the justice or propriety of any commitment for contempt, made by any court, officer or body, according to law, and plainly charged in such commitment as hereinbefore provided.’ ” [Sec. 5379.]

“ ‘Notwithstanding this provision, however, it has' been ruled in New York, upon a similar statute, that a party committed has “an undoubted right to show that the committing magistrate acted without authority; and this is so, notwithstanding the commitment recite the existence of the necessary facts to give jurisdiction. No court or officer can acquire jurisdiction by the mere assertion of it, or by falsely alleging the existence of facts on which jurisdiction depends.” [People v. Cassels, 5 Hill, 164.] See, also, Welch v. Nash, 8 East, l. c. 403, as to the inability of assertions made on the record to create facts.

“ ‘The force and effect of the statute of New York, as already adverted to, were elaborately discussed in People ex rel. v. Liscomb, 60 N. Y. 559, where People v. Cassels, supra, was quoted from with approval, and it was there said that: ‘ ‘ The prohibition of the forty-second section of the Habeas Corpus Act, forbidding the inquiry by the court or officer, into the legality of any previous judgment, decree or execution specified in the twenty-second section, does not and cannot, without nullifying,, in good measure, the provisions of that and other sections of the act, take from the court or officer the power, or relieve him from the duty of determining whether the process, judgment, decree or execution emanated from a court of competent jurisdiction; and whether the court making the judgment or decree, or issuing the process, had the legal and constitutional power to give such judgment, or send forth such process. It simply prohibits the review of the decision of a court of competent jurisdiction. . . . The inquiry is, necessarily, in every case, whether the process is void, and the officer or court having jurisdiction of the writ must pass upon it. If a process good in form issued upon a judgment of a court having jurisdiction, either general or limited, must in all cases be assumed to be valid until the judgment be reversed upon error, the remedy by writ of habeas corpus will be of but little value.” And that the relief afforded at common law by “this, the greatest of all writs,” is, under the Constitution beyond the pale of legislative*discretion and should not be “shorn of its power and its glory by a subtle and metaphysical interpretation; rather should it receive a liberal construction, in harmony with its grand purpose, and in disregard, if need be, of technical language used.”

“ ‘An author already quoted says: “But, while it is held in many of the earlier cases, that if a court has jurisdiction of the person, place, and subject-matter, its judgment cannot be successfully attacked upon habeas corpus, other courts hold that jurisdiction of the person, place, and subject-matter are not alone conclusive, and that the jurisdiction of the court to render the particular judgment in question is a proper subject of inquiry. A court may have authority to hear and determine a case, but its determination or judgment must be within the confines of the law, and such power does not authorize it, simply because it has jurisdiction to render some judgment in the case, to trample down the prisoner’s fundamental and constitutional rights by pronouncing a sentence unauthorized by law.” [Church on Hab. Corp. (2 Ed.), sec. 368; Ex parte Lange, 18 Wall. 163, and other cases cited.] ’

“In this case the commitment recited that the contempt occurred in the presence of the court, when as a matter of fact, as shown by proof aliunde in contravention of the terms of the commitment, the alleged acts were not in the presence of the court. This was the situation in the case which called for the foregoing discussion.

“The same point was urged by counsel for petitioner in both of the cases of In re Clark, 208 Mo. 121, and In re Shull, 221 Mo. 623, but the question is not directly passed upon in either.

“In the former case however (208 Mo. l. c. 142) we did say something as to the high character of the writ of habeas corpus, which has the right ring, thus:

‘ ‘ ‘ The circuit attorney brings to our attention the decision of the St. Louis Court of Appeals denying petitioner his discharge from the same judgment and commitment challenged here. It goes without saying that, with this court, a decision bearing the hall-mark of a court of so high authority as the St. Louis Court of Appeals passes current as persuasive and instructive. We do not understand the circuit attorney to make the out-and-out contention that the decision in question rises to the plane of res ad judicata-, but if such be his position, implied or by indirection, it is not sound. A plea of estoppel by record in a habeas corpus ease is good on the same facts where the prisoner has been discharged, but is bad where the prisoner has been remanded, as here. This is so because judges may be likened unto priests attending between the horns of the altar in the temple of justice. So attending, they stand solemnly charged with keeping the lamp of personal liberty in oil, well trimmed and brightly burning. It is so because the liberty of the citizen is an immediate jewel of the law to be sacredly cherished and hedged about wdthal. Therefore, no mere legal fictions, good for use in matters of less moment, or matters of punctilio, or comity between courts, may shield any one restraining an American citizen of his liberty from having the why and wherefore of that restraint summarily looked into by any court of competent jurisdiction in the land. The discretion of one judge in remanding the prisoner does not bar tbe discretion of another in discharging the prisoner on habeas corpus. Wherefore, when the great writ goes down — a writ whose origin is beyond the dawn of English history, whose final and triumphant establishment' was a landmark in the evolution of civil liberty, making the hearts of its lovers leap for joy— to the prisoner, the doors of jails open, he comes into court with his shackles dropped and the cause of his imprisonment, the very marrow of it, is laid bare to the utmost verge and minutiae permitted by written iaw. And this, too, no matter what court has theretofore denied relief, unless it be a court of superior jurisdiction. [R. S. 1899, sec. 3546.] ’

If former adjudication in another habeas corpus proceeding will not estop a subsequent inquiry as to facts surrounding the detention of' a citizen, why should it be said that the findings of fact made by the presiding judge of the court against which the offense of contempt was committed, would forever seal the lips of a petitioning citizen from showing the facts surrounding' the judgment committing him. If the high character of the writ under the Constitution is such as to preclude the doctrine of res adjudicata, so long as the petitioner is in custody, why should not the same rule apply to facts surrounding and entering into the particular judgment.

“We are firmly of opinion that, as to contempt judgments, such judgments can be attacked in habeas corpus for (1) want of jurisdiction over the person, (2) want of jurisdiction over subject-matter, and (3) want of jurisdiction in the particular case owing to the facts thereof, although the first two requisites are fully met.

“In other words, as said by the Texas court, ‘nor can the court make contempt of that which is not contempt; and every attempt to do so would be in excess of authority or jurisdiction, as much so as if the court had no authority or power to punish for contempt, either in relation to the person or subject-matter. There must be contempt in order to justify punishment for that offense.’

“Proof that there was in fact no contempt should avoid the judgment. We are aware that there are generalization's in the books, which appear opposed to this doctrine, but if we are to give full vitality , to the constitutional writ of habeas corpus, such should be the law. If not, the hearings upon writs of habeas corpus become mere perfunctory proceedings in which we determíne a mere paper case, i. e., (1) has the court jurisdiction of the person and subject-matter, and (2) has the court (whether truly or falsely) recited facts enough to constitute contempt. Such a hearing would be far from the hearing so forcefully put by our Brother Lamm, in Clark’s case, supra, when he said: ‘Wherefore, when the great writ goes down- — a writ whose origin is beyond the dawn of English history, whose final and triumphant establishment was a landmark in the evolution of civil liberty, making the hearts of its lovers leap for joy — to the prisoner, the doors of jails open, he comes into court with his shackles dropped and the cause of his imprisonment, the very marrow of it, is laid, bare to the utmost verge and minutiae permitted by written law.’ The italics are ours. Prison doors are but temporarily opened, if under this great and benign writ we are bound by the mere ipse dixit of a judge finding for us the facts: The leaping of hearts for joy would only last long enough for the State prosecutor to read a false finding of fact in a well written judgment, which finding made contempt wherein there was no contempt; there the ‘very marrow’ of the cause if the imprisonment might be fully shadowed by a perverse finding of facts, which would prevent its being ‘laid bare.’

“Furthermore our statute, section 2468, Revised Statutes 1909, seems to contemplate the practice for which we contend. That section reads: ‘The party brought before any court or magistrate, by virtue of any writ of habeas corpus, may deny the material facts set forth in the return, or allege any fact to show, either that his detention or imprisonment is unlawful, or that he is entitled to his discharge; which allegation or denials shall be on oath.’

“II.' Going a step further, I do not agree to. the opinion written, because on the admitted facts there was no contempt .committed. I care' not whose statement of the facts we consider. The petitioner did not fail to answer the questions propounded, when he said: ‘I could not say, possibly I did.’ ‘I could not say, probably I did.’ These two answers answered both questions propounded. The two questions were:

“ ‘Question 1. H. P. Creasy, did you on September 22,' 1911, buy one pint of whisky for Jimmy, the tailor, that works for Harrell?

“ ‘Question 2. H. P. Creasy, did you on Thursday, September 21, 1911, about six o’clock p. m., buy one-half pint of whisky for Tom Newby, from the negro, Squire Bannister,-at Tom Morris’s drugstore?’ ”

“It may be that the answers were not truthful, but they answered the questions. If not truthful the petitioner subjected himself to a charge of perjury, but not to a charge of contempt for refusing to answer a question. There is a marked difference between a refusal to answer a question so as to render one guilty of contempt of a court directing an answer, and untruthfully answering the question. The facts of this record may tend to show perjury, but do not show contempt based on the ground of a refusal to answer questions. Under the admitted facts the trial judge has found contempt, where none in fact exists. He has adjudged contempt where there was no contempt, and in this his judgment is void for want of power to enter the particular judgment. The ipse dixit of no court can make contempt of that which does not rise to the level of contempt. If this man has been gnilty of perjury the courts are open, but the summary process for contempt does not lie in such a case.

“III. The petitioner should be discharged for a further reason, apparent upon the face of the record from the circuit court.

“Our statute, Revised Statutes 1909, section 3884, reads: . . Whenever any person shall be committed for any contempt specified in this chapter, the particular circumstances of his offense shall be set forth in the order or warrant of commitment. ’ [R. S. 1899, section 1619.]

“The statutory power to punish for the kind of contempt involved in this case is found in Revised Statutes 1909, section 3881, the material portions of which section are: ‘Every court of record shall have power to punish as for criminal contempt, persons guilty of: . . . fifth, the contumacious and unlawful refusal of any person to be sworn as a witness, or, when so sworn, to refuse to answer any legal and proper interrogatory.’

‘ ‘ The circuit court was proceeding under the latter part of clause five of said section.

“The prisoner was committed upon a certified copy of the court’s judgment placed in the hands of the sheriff as his warrant of commitment. Such judgment, therefore, becomes important. It reads:

“ ‘Now at this day comes W. F. Robinson, foreman of the grand jury, duly impaneled, sworn and charged and now sitting within and for Boone county, Missouri, and reports to the court in writing that one II. P. Creasy, who has been duly subpoenaed to appear as a witness before said grand jury, has refused to answer proper and lawful questions propounded to him, the said II. P. Creasy, by said grand jury, which said questions are submittted to the court in writing by the said foreman of said grand jury, and are as follows, to-wit:

“ ‘ “Question No. 1. Did you on September 22, 1911, buy one pint of whisky for Jimmy, the tailor that works for Harrell?

“ ‘ “Question No. 2. Did you, on Thursday, September 21,1911, at about six o’clock p. m., buy one-half pint of whisky for Tom Newby from the negro Squire Banister, at Morris’s drugstore?”

“ ‘And the court having determined that the witness is bound to answer said questions and having informed the grand jury of its decision, the said H. P. Creasy, having persisted in his refusal to answer said questions so propounded to him by said grand jury, is brought before the court, and the questions being read to him and explained and being admonished by the court to answer said questions, still refuses and declines to answer said questions and says and announces to the court that he will not answer said questions, and the court, believing and finding that the refusal of said witness to answer said questions is wilful and contumacious and in contempt of said grand jury and of this court, doth find the said H. P. Creasy to be guilty of contempt of this court and doth order and adjudge that the said H. P. Creasy, for said contempt of court, be punished by imprisonment in the county jail of Boone county, Missouri, for a term and period of six months.

“ ‘And the clerk of this court is directed to forthwith make out a commitment for the said H. P. Creasy and deliver the same to the sheriff or keeper of the jail of Boone county, directing him to receive and imprison the said H. P. Creasy for the term aforesaid.’

“This judgment, to my mind, fails to measure up to the demands of the statute. Under the statute, the particular cirmmstances of his offence shall be set forth in the order or warrant of commitment. The order in this case does set forth the questions asked the petitioner, bnt does not undertake to give tbe response made by tbe petitioner. If tbe petitioner said ‘I refuse to answer those questions,’ this faot should be set- out, and not tbe mere conclusion of tbe court that tbe petitioner bad refused to answer the questions. If tbe petitioner responded in any other way, bis response should be set out, and not tbe court’s conclusion of what that response was. This case emphasizes our discussion of these statutes in the case of In re Shull, 221 Mo. l. c. 627. In that case we discharged tbe petitioner because tbe commitment stated conclusions rather than facts and circumstances. In this case the return of tbe sheriff, made a part of tbe record proper before this court, says ‘that tbe judge then explained to tbe said H. P. Creasy that, what tbe grand jury wanted was an unequivocal answer to their questions — that is, “Yes” or “No,” and that tbe event being of such recent occurrence that be, tbe said PI. P. Creasy, certainly should be able to remember them and make definite reply; that thereupon said PI. P. Creasy replied to tbe said judge of said circuit court, “I can’t give them any different answer- — ■ that is tbe best I can 'do for you. ’ ’ ’

“This return further and previously shows that at tbe time tbe petitioner was before tbe court tbe court was there informed of tbe fact that petitioner bad answered tbe questions 1 and 2 to tbe grand jury by tbe following answers: ‘That to said question No. I, H. P. Creasy made tbe following answer: “I could not say — possibly I did.” That to question No. 2, II. P. Creasy made tbe following answer: “I cannot say- — probably I did.” ’

‘ ‘ This fact and tbe circumstance should have been stated in tbe order of commitment and judgment. In contempt cases it is facts and circumstances which go to make up tbe contempt which must be set forth and not tbe legal conclusions of tbe judge as to are tbe facts and circumstances.

“In Shull’s case the court said:

“ ‘Contempt of court is a specific criminal offense, and a fine imposed is a judgment in a criminal case. Tlie adjudication is a conviction, and the commitment in consequence thereof is execution. [Church on Habeas Corpus (2 Ed.), section 308; Ex parte Kearney, 7 Wheat. 38.] It is in recognition of this principle that the General Assembly, by the foregoing’ statutory provisions, requires that when a citizen is committed to prison for contempt, the commitment itself shall contain “the particular circumstances of his offense,” or in the language of section 3576, the contempt itself must be plainly and specially charged in the commitment. When the commitment in this case is tested in the crucible of the law it is found to fall far short of the requirements of the statute. Similar statutes are found in other States. If we look at the recitals of the order leading up to the adjudication of the contempt there is no effort made-to state the particular questions, the refusal to answer which constitute the contempt. We are simply told that the petitioner had treated the court disrespectfully in refusing to answer proper and legal questions propounded to him. It is not even found that said questions were material and pertinent, but aside from this last consideration the •statute requires the facts themselves to be stated, not merely the court’s conclusions that the questions were legal and proper, and when we come to the adjudication of the contempt itself, it is not even put upon the ground of the refusal to answer questions, but the finding and the only finding is that petitioner had treated the court disrespectfully. In what manner or how the petitioner had treated the court disrespectfully the court did not adjudge and state in its judgment. If it should be said it can be inferred by the matter of inducement set out in the record, the answer of all the courts is that as this is a criminal proceeding by wbicb the citizen is deprived of his liberty, presumptions and intendments will not be indulged in in order to sustain a conviction for contempt of court. . . . In California the statute .requires that the court or officer make a statement of the facts. In Ex parte Shortridge, 90 Pac. 478, the order committing-an attorney for contempt recited that he “interrupted” the court proceedings, without stating.what he did, and it was held it did not comply with the statute requiring the court to recite the facts. The court quoted with approval the statement of the Supreme Court in Schwarz v. Superior Court, 111 Cal. 106, to-wit: “The offense being criminal in its nature, both the charge and the finding and judgment of the court thereon are to be strictly construed in favor of the accused,” and hence the order of adjudication must state facts which show the prisoner guilty of contempt, not mere conclusions, and such is the obvious meaning and purpose of our statutes, sections 1619 and 3578, Revised Statutes 1899. [9 Cyc. 48 and 50.] Without further discussion, we think the judgment of contempt and the commitment are fatally defective in not finding and adjudging the facts which would show petitioner had acted so disrespectfully towards the circuit court as to constitute a contempt within the statute.’-

“In the case at bar had the judgment showed the facts, i. e., that questions one and two had been propounded by the grand jury, and that petitioner had answered such questions to the grand jury in the manner above indicated; that these answers were before the court; that the court informed the petitioner that what the grand jury wanted was answers ‘Yes’ or ‘No’ to each question, and to such suggestion of the court the petitioner responded ‘I can’t give them any different answer — this is the best I can do for you,’ we would have an entirely different case before us. We would have the actual facts as admitted by all the parties, and not this mere legal conclusion of the judge that the witness ‘refused to answer questions.’

“This case fully demonstrates the wisdom of the law which requires an outline of the facts and circumstances rather than the court’s conclusions. The- return on file here and made under oath further says: ‘The said circuit judge announced that he was convinced from the manner of the replies of said witness to the questions, and from his general demeanor whilst before and in the presence of the court that he, the said H. P. Creasy, was wilfully and intentionally withholding proper information sought by the grand jury;’ yet neither the return made to this court, nor the judgment nisi undertakes to reveal the facts. The petitioner’s manner of answering the questions is not given, nor his demeanor even vaguely described. We have only the bare naked conclusions.

“Upon the record itself this petitioner must be discharged. He may be guilty of perjury and this is a whisky case, but sound habeas corpus law must be written even in whisky cases. We cannot have different doctrines of habeas corpus law, one applicable to whisky cases, and the other for the higher toned cases.

“The Constitution guards the liberty of the felon with the same eagle eye that it does the infant and pure girl. In each-when unlawful detention is charged, the facts of that detention must be laid bare. In contempt proceedings which result in detention of one’s liberty, the law says that the facts and circumstances of the contumacious acts must be spread of record in the commitment or order of commitment. Such was not done here, and petitioner’s legal rights have been invaded, even though he be an ordinary bootlegger. With the latter charge we have nothing to do here, but the law furnishes a forum for the orderly prosecution of such offenders,'as well as for the felon-who has been guilty of perjury. Bootleg’ging and perjury, however, are not necessarily contempts of court.

“IV. The judgment is void on the face of the record, for other reasons, (a) the punishment fixed, six months in jail, is in violation of section 3882, Revised Statutes 1909. That section reads:

“ ‘Punishment for contempt may be by fine or imprisonment in the jail of the county where the court may be sitting, or both in the discretion of the court; but the fine in no case shall exceed the sum of fifty dollars, nor the imprisonment ten days; and where any person shall be committed to prison for the nonpayment of any such fine, he shall be discharged at the expiration of thirty days.’

“I am aware that this section has been declared unconstitutional in the case of State ex inf. v. Shepherd, 177 Mo. 205, and Railroad v. Gildersleeve, 219 Mo. 170, but I think those cases are wrong and ought to be overruled.

“In the Gildersleeve case, supra, our brother Lamm, in an exhaustive dissenting opinion discusses this statute. I thought then and I think now that his opinion is unanswerable. I shall not rediscuss the question there so elegantly presented. A reference to that opinion will suffice. To my mind the sooner some of the broad doctrine of both the Shepherd and Gildersleeve cases is overruled, the better it will be for the jurisprudence of the State. Let those cases be overruled to the’ extent indicated in the dissenting opinion in the Gildersleeve case, supra, (b) But there is a further reason for holding this judgment bad. The judgment should only have committed the petitioner to jail until such time as ‘he give such evidence.’ Upon the giving of such evidence he should be discharged. Section 5081, Revised Statutes 1909, provides that witnesses who refuse to testify before a grand jury shall be brought before the court and said section 5081 also provides, as to the duties of the court, this: ‘who shall proceed therein in the same manner as if the witness had been interrogated and refused to answer in open court.’ This procedure is thus outlined by section 6372, Revised Statutes 1909: ‘ . . . A person summoned as a witness, and attending, who shall refuse to give evidence which may lawfully be required to be given by such person, on oath or affirmation, may be committed to prison by the court, or other person authorized to take his deposition or testimony, there to remain, without bail, until he gives such evidence.’

“This section limits the imprisonment to such time as the witness shall give such testimony. Upon the giving of such testimony he is, perforce of the law, purged of the contempt or contumacious act. This seems to have been the construction given this statute from the early case of Word v. State, 2 Mo. 120, in the year 1827, down to this date.

“'So that we say for these reasons apparent from the face of the record the petitioner should be discharged. To the end that the importance of this little case to jurisprudence might be seen, we have elaborated more than should have been done in an opinion, but the sacredness of constitutional provisions has prompted the act and is our only excuse^ therefor.”

In accordance with the views expressed in the foregoing opinion, the petitioner should be discharged. It is so ordered.

All concur, except ValUcmt, C. J., not sittting.

CONCURRING OPINION.

WOODSON, J.

In my opinion the petitioner should be discharged for the reason that section 28 of article 2 of the Constitution of 1875 guarantees to every person the right to a trial by jury in all civil and criminal cases.

In my opinion, the conduct of the petitioner, in answering the questions propounded to him, as he did, was not in contempt of court, as provided for and defined in section 3881, Revised Statutes 1909. That section after granting to all courts of record the authority to punish for contempt, proceeds to define what contempt is, and among other things, in the fifth clause thereof, it is provided that the contemptuous and unlawful refusal of any person to be sworn as a witness, or who when sworn, refuses to answer any legal and proper interrogatory, shall be guilty of contempt within the meaning of that article.

The petitioner did not refuse to be sworn, but upon the contrary, the record shows that he was duly sworn and testified in the case; nor did he contemptuously or unlawfully refuse to answer any question which was properly propounded to him, but upon the contrary he, in a dignified and respectful manner, answered all interrogatories propounded to him. It necessarily follows therefrom that the petitioner was not guilty of contempt of court, as defined in said statute.

That brings us to the consideration of the character of the answers given, by the petitioner, to the interrogatories propounded to him by the court and counsel. If they were false, then he was guilty of the crime of perjury; and if true, then he was neither guilty of contempt of court nor of the crime of perjury, but was innocent. Consequently, the truthfulness or falsity of his testimony was one of fact, and being a felony, punishable by imprisonment in the penitentiary, he was clearly entitled to a trial by jury under the guaranty of the section of the Constitution before mentioned.

If that is true, and I am unable to see why it is not, then a jury, and not the court, should have passed upon his guilt or innocence; and as that was not done, the petitioner should be discharged.

II. The real contention of counsel for respondent is that, since the judiciary is one of the three coordinate departments of the State government, and each being separate and independent of the other two (article 3 of the Constitution), the Legislature had no power or authority under the Constitution to limit the inherent authority of the circuit court to punish persons for contempt of court, as was attempted to be done by said section 3881, Revised Statutes 1909. It is, therefore, contended by them, that said section of the statute is violative of said artcile 3 of the Constitution, and consequently is null and void.

In suport of this contention, we are cited to the cases of State ex inf. v. Shepherd, 177 Mo. 205, and Chicago, Burlington and Quincy Railway Company v. Gildersleeve, 219 Mo. 170.

There is no question but what both of those cases sustain this contention of counsel.

While the former case was decided by the unanimous court, yet the latter was by a divided court; four members concurred in holding the defendant guilty of contempt, and that the circuit court had the inherent authority to punish for contempt, and that the Legislature had no authority to limit or abridge that authority; and three members of the court dissented from the last proposition, holding in a dissenting opinion by Lamm, J., that the Legislature has such authority.

The writer was- one of the dissenters mentioned in the last ease decided, believing that under the laws of the State the Legislature has, within reasonable bounds, the authority to limit the power of all courts to punish for contempt; and I am of that opinion still.

In that case, Shepherd was proceeded against in this court, on information filed by the Attorney-General, charging him with publishing certain libelous charges against the court. The defendant was cited to appear and show cause, if any he had, why he should not be punished for contempt of court. Upon the return day, he appeared and filed return to the information, and upon the return the court found him guilty and fixed the penalty at the sum of $500. It was there insisted by the defendant, as it is here by the petitioner, that the court has no absolute inherent authority to punish him as contended for by the respondent, but that its authority was limited by sections 3881 to 3884, Revised Statutes 1909, and that said sections were constitutional and valid. This insistence, in my opinion, was well taken, and that the conclusion reached in that case was erroneous cannot be successfuly refuted. My reasons for so stating, are briefly these:

Section 14 of article 2 of the Constitution, denominated the “Bill of Rights,” provides: “That no law shall be passed impairing the freedom of speech; that every person shall be free to say, write or.publish whatever he will, on any subject, being responsible for all abuse of that liberty; and that in all suits and prosecutions for libel, the truth thereof may be given in evidence, and the jury, under the direction of the court, shall determine the law and the fact.”

- Under this constitutional guaranty, Mr. Shepherd published the article previously mentioned, and under the provisions thereof, he was clearly entitled to plead and prove the truthfulness thereof, which if true, was a perfect defense to the “prosecution” instituted by the Attorney-General; and in the express language of said section of the Constitution, he had the unquestionable right to have a jury, “under the direction of the court,” to “determine the law and the fact,” of his case.

No disinterested person, in my opinion, can read the opinion in that case, and the constitutional provision before quoted, and come to any other rational conclusion, than that this court erroneously denied to Mr. Shepherd the right to have a jury pass upon both Ríe law and the fact in that case, and to say whether or not he was guilty of contempt, as charged against him.

The section of the Constitution quoted is general in its terms, and includes all “suits and prosecutions” and no exception whatever thereto is saved by its provisions. The fact is, which is made perfectly clear by the history of said constitutional provision, that the framers of the Constitution intended-' that said section of the Constitution should specially apply to the executive, legislative and judicial departments of the State, and generally to all persons within the State.

It has been held by this court, and by all other courts of this country, where a constitutional provision similar to ours has been adopted, that it is but the adoption of the Pox Act of England, governing the same subject, and expressed substantially in the same language.

The history of that act is briefly this: Prior to its enactment, the courts of England were dominated by the king, and for centuries all publications unfavorably criticising the king or his government were promptly arrested and prosecuted for criminal libel, and of course, were found guilty and severely punished by the courts, which were but the mouth-pieces of the king. In order to remedy that evil and oppression, the Pox Act was enacted, thereby depriving the courts of England from trying the! fact, or declaring as a matter of law, as they had theretofore been in the habit of doing, that a publication was libelous, either in law or fact, and transferred that power and authority to a jury of defendant’s peers.

While the language of said act is general and includes all persons and classes, yet when viewed in the light of the history of the act, it clearly appears that it was designed especially for the governing classes of England, and when the people of this State, and country, adopted the Pox Act, they did so to prevent the commission- in this country of those evils which existed in England, and which said act was designed to abolish in that country, namely, to prevent the courts of the State from trying or declaring as a matter of law that any publication criticising the State government, or any department thereof, was libelous, and that the author thereof was guilty of a crime.

The people of this State, and of this country generally, apprehending that the governing classes might assume unto themselves the arbitrary power so frequently, unjustly and oppressively exercised by the courts of England, in trying or declaring as a matter of law that any and all publications criticising them were libelous, adopted the constitutional provision previously set forth, for the purpose of preventing those evils, and to guarantee to all persons generally the freedom of speech, and the right to publish whatever they deemed proper, being responsible only for the abuse of that liberty.

If we view said section 14 of article 2 of the Constitution in the light of its history, then there can be no doubt but what the judiciary and all other departments of the State are clearly embraced within the subjects referred to therein. That being unquestionably true, it necessarily follows therefrom that Shepherd was unlawfully denied the right to have a jury pass upon the law and fact of his guilt or innocence.

I am, therefore, clearly of the opinion that the Shepherd case was erroneously decided; and the Grildersleeve case, being bottomed upon the Shepherd case, it must also fall for want of proper support or authority upon which to rest.

It is true that other cases are cited in support of both of those cases, but when we look at the principles of our government as announced in our Constitution and laws, it is clearly seen that they are contrary to the personal liberty of the citizen, and the spirit of our institutions, and should not for that reason be followed.

I am, therefore, of the opinion that the Shepherd and Gilder sleeve cases should be no longer followed, but should be overruled, and consequently the petitioner should be discharged.

Kennish, J., concurs herein.


source: Caselaw Access Project

author: GRAVES, J.

license: Public Domain

text:
    THE STATE ex rel. MISSOURI GLASS COMPANY v. GEORGE D. REYNOLDS et al., Judges of St. Louis Court of Appeals.
    In Banc,
    June 10, 1912.
    ,1. MANDAMUS: Discretionary Writ. A sound judicial discretion is to be exercised when the court is ashed to issue a writ of mandamus, and it should be withheld where there is a condition which does not appeal to sound discretion.
    2. -; --: Laches. Delay in suing out the writ of mandamus is a valid and substantial reason for refusing it. Where an appeal from a judgment against relator was prosecuted through both the Springfield and the St. Louis Courts of Appeals, and the jurisdiction of neither, to hear the appeal, on the ground that the construction of the revenue law was involved, was raised until after the mandate of the St. Louis Court of Appeals had gone down to the circuit court and that court had entered up judgment against relator, the writ against the judges of the St. Louis Court of Appeals will be refused. To issue it after such delay in raising the question of jurisdiction would not be the exercise of a sound judicial discretion.
    3. APPELLATE JURISDICTION: Revenue Law. The Constitution in giving the Supreme Court jurisdiction in eases involving a construction of “the revenue laws of this State” has- no reference to special city charter provisions relating solely to local assessments. The Supreme Court has no jurisdiction on that ground over a controversy between the lessor and lessee as to which, under the lease contract, should pay a special assessment made by the city in a proceeding to widen the street, wherein the validity of the tax is involved and that question involves the construction of certain provisions of the city charter.
    Mandamus.
    Writ denied.

      Joseph H. Zumbalen and Henry T. Ferriss for relators.
    (1) When the Court of Appeals is not given jurisdiction of a class of cases by the Constitution, such jurisdiction cannot be conferred by consent of parties. State ex rel. v. Nixon, 232 Mo. 496. (2) Mandamus is proper procedure to compel Court of Appeals to transfer a case to this court on the ground that this court has exclusive jurisdiction of the appeal. State ex rel. v. Smith, 177 Mo. 69. (3) The fact that the Court of Appeals had already handed down its mandate and has adjourned constitutes no reason why it should not now be compelled by the court to transfer this appeal. State ex rel. v. Phillips, 96 Mo. 573 ; State ex rel. v. Smith, 172 Mo. 629 ; State ex rel. v, Gibson, 187 Mo. 550. (4) This case involves construction of a revenue law of this State, (a) The right of the plaintiff to recover in the case depends on validity of the tax which they voluntarily paid, and the validity of the tax involves the construction of relevant provisions of the charter of the city of St. Louis, (b) The charter of the city of St. Louis is a law of this State, enacted under express authorization of the Constitution, and possessing at least equal dignity with an act of the Legislature. St. Louis v. Dorr, 145 Mo. 466; State ex rel. v. Mason, 155 Mo. 486; Meier v. St. Louis, 180' Mo. 409'; Albright v. Fisher, 164 Mo’ 64; Sluder v. Transit Co., 189 Mo. 129; Constitution, art. 9; sec. 21. The city of St. Louis is a political subdivision of the State, having the functions of a county and in that respect differing from any other city in the State. Constitution, art. 9, sec. 23; Constitution, art. 10, sec. 11, last clause; St. Louis v. Dorr, 145 Mo. 479; Gracey v. St. Louis, 213 Mo. 384; Sec. 8057, R. S. 1909, clause 19. (5) The provisions of the charter of St. Louis, to wit, art. 3, sec. 26, par. 1, and art. 6, secs. 2-11, purporting to authorize the tax upon the property in question, constitute a revenue law. (a) The assessment for benefits against the property was a tax and was imposed by virtue of the taxing power of the State delegated to the city. Meier v. St. Louis, 180 Mo. 408. (b) The tax is collected directly by the city; is paid into the city treasury and then used for public purposes and thereby constitutes revenue. The city must pay the damages allowed in the condemnation proceedings whether or not it collects the taxes assessed for benefits. It differs from a special taxbill issued to a contractor for street improvements. Charter of St. Louis, art. 6, sec. 5, art. 6, sec. 10; Black’s Law Dictionary, “Revenue;” Webster v. People, 98 111. 343; Potwin v. Johnson, 106 111. 532; Herhold v. Chicago, 106 111. 547; Kilgour v. Commrs., Ill 111. 342; Sanderson v. LaSalle, 19 111. App. 632; Claypool v. Railroad, 81 111. App. 433; Shreveport v. Prescott, 51 La. Ann. 1895. In the following Missouri cases it was held that the Supreme Court had jurisdiction on ground that construction of revenue laws of the State was involved. Morrow v. Surber, 97 Mo. 155; Arnold v. Hawkins, 27 Mo. App.' 476; City v. Burrough, 43 Mo. App. 298; State ex rel. v. Angert, 53 Mo. App. 349'; Moore v. Yaughn, 53 Mo. App. 632; Moore v. Yaughn, 127 Mo. 538; Railroad v. Gray, 126 Mo. 472; Hilton v. Smith, 134 Mo. 499; City v. Jordan, 145¡ Mo. 371; State v. Hawkins, 169 Mo. 615; Park v. City, 174 Mo. 425; State ex rel. v. Adkins, 221 Mo. 112. In the following cases jurisdiction in the Supreme Court was denied. Daudt v. Drainage Dt., 149 Mo. 405; St. Joseph v. Ins. Co., 183 Mo. 1; State v. Gawronski, 179 Mo. 549; Russell v. Woemer, 207 Mo. 653; City v. Bowman, 167 Mo. 535.

      J. L. Hornsby for respondents.
    (1) The defenses pleaded in the case of Plead-well v. Missouri Glass Co. do not involve “the construction of the revenue laws of this State” (Art. 6, see. 12, Constitution), and this court has no jurisdiction of the ease. State ex rel. v. Aclkins, 221 Mo. 112; Hannibal v. Bowman, 167 Mo. 535; St. Joseph v. Ins. Co., 183 Mo. 1; Park v.-City, 174 Mo. 425; Harper v. Town, 23 Ga. 5701; Davenport v. Dow, 82 U. S. 390; Johnson v. Planseom, 90 Tex. 321. (2) The issues presented involve the construction of provisions of the charter of the city of St. Louis, which is in no sense and under no theory part of the “revenue laws of the State.” Hannibal v. Bowman, 167 Mo. 535; Johnson v. Hanscom, 90 T'ex. 321. (3) The judgment of the Court of Appeals having been rendered at its October term, 1911, and its mandate to the circuit court having been issued during that term, and that term of court having expired before the present writ was served or ever issued, it is not within the power of said Court of Appeals to recall said mandate. (4) The relator has been guilty of such laches in raising the question of the jurisdiction of the St. Louis Court of Appeals that it is not entitled to the assistance of the writ of mandamus. Merrill on Mandamus, sec. 87; Wood on Mandamus, p. 174; Spelling on Extraordinary Remedies, sec. 1382; 26 Cyc. 393; 19 Ain. & Eng. Ency. Law, 755; State ex rel. v. Gibson, 187 Mo. 554; Curtice v. Schmidt, 202 Mo. 707; State ex rel. v. McIntosh, 205 Mo. 611.
   GRAVES, J.

This is an original proceeding of mandamus. Respondents, the judges of the St. Louis Court of Appeals, filed their return to our alternative writ, and relator then moved for judgment on the pleadings. By the suit relator seeks to compel the St. Louis Court of Appeals to certify to this court for final determination a certain cause of Theodosia Wallace Pleadwell et al., plaintiffs, v. Missouri Glass Co., defendant, on the ground that the determination of the cause involved a construction of the revenue laws of this State. A brief history of the case as contained in the record and briefs before us is as follows:

Plaintiffs in that canse are the successors in title, by devise from Marie E. Patterson, of certain real estate in the city of St. Louis. Defendant in that suit, the Missouri Glass Company, was a lessee of said property from the said Marie E.. Patterson. The lease between Patterson and the Glass Company contained a clause by which the lessees thereiri named were to “pay all taxes, whether general or special, levied or assessed, against said property or the improvements therein during said term.” During the term of this lease the city of St. Louis undertook to and did assess benefits against this property in a proceeding to widen a street. A taxbill was issued, but it was not paid by the Missouri Glass Company, and the plaintiffs in the said circuit .court proceeding paid the same, and then brought their said action against the Glass Company, on the covenant in the lease, to recover from it the amount' they had paid, with interest. -

Upon a trial in the circuit court defendant was successful. Appeal was taken by plaintiffs to the St. Louis Court of Appeals, but by order of record that court transferred the cause to the Springfield Court of Appeals, where it was submitted and decided, the opinion resulting in a reversal of the circuit court judgment and a remanding of the cause. [Pleadwell et al. v. Missouri Glass Co., 151 Mo. App. 51.] After our decision in State ex rel. v. Nixon, 232 Mo. 496, the cause was returned by the Springfield Court of Appeals, to the St. Louis Court of Appeals, which court reversed the judgment of the circuit court and remanded the cause with directions to the circuit court to enter judgment for the plaintiffs for the amount of the said tax-bill and interest. This judgment was of date November 7, 1911. On-February 5, 1912, the circuit court in compliance with the mandate of the said court of appeals, entered judgment for plaintiffs and against defendant, the relator in the proceeding at bar, for $4,148.35.

February 28, 1912, the defendant in that cause filed its motion in the court of appeals asking that it recall its mandate to the circuit court and transfer the cause to this court because the revenue laws of the State were involved in the determination of the cause. On March 2, 1912, this motion was overruled, and on the same day the alternative writ was ordered issued by this court, and on the same day the court of appeals finally adjourned its then term of court. Other matters more in detail may be required in the course of the opinion, but this sufficiently states the case for the present.

I. The peremptory writ should be refused in this case for at least two reasons. In the first place relator’s extreme laches should preclude the issuance of the writ. In this court the writ of mandamus is looked upon as more or less a discretionary writ. Of course a sound discretion must "always be exercised. Wkatvve aim to say is that there are no fixed and hide-bound rules which compel the issuance of such a writ, and even in cases where it could very properly be issued our courts have withheld it, because of conditions which did not appeal to sound discretion. [State ex rel. v. Finley, 74 Mo. App. 213.]

Laches and delay in suing out the writ is recognized as a valid and substantial reason for its refusal.

In State ex rel. v. Gibson, 187 Mo. l. c. 555, this court said: “The correct rule, deduced from the modern practice, seems to be that mandamus, while no longer a mere prerogative writ, is yet somewhat of a discretionary writ and should be issued, not in the exercise of an arbitrary or capricious discretion, but in the exercise of a sound legal discretion in accordance with the established rules of law. [19 Am. & Eng. Ency. Law (2 Ed.), 751.] And among the things appealing to the discretion of the court are laches, and herein of mere delay not necessarily sufficient to involve the. bar of Statutes of Limitation. ’ ’ That case was a proceeding by mandamus to eompel a circuit judge to sign a bill of exceptions. Tbe application for tbe writ was made a year or more after the judge bad refused to sign tbe bill of exceptions. Among other things we held that tbe laches of tbe parties would defeat their cause.

So in tbe case at bar. Tbe circuit court case was fought through both tbe Springfield and St. Louis Courts of Appeals. No finger is raised as to jurisdiction until after tbe mandate of tbe latter court has gone down to tbe circuit court, and tbe circuit court in pursuance of such mandate bad entered up a judgment for tbe plaintiffs. Relator’s laches precludes tbe issuance of tbe writ under tbe circumstances of this case. To issue it would not be tbe exercise of sound discretion. Ordinarily we would let this determine tbe ease, but there is another question chiefly argued in this ease, which may rise up to vex us in tbe future, and we deem it tbe better policy to settle it here and now. It is a question going to tbe very vitals of tbe case, and hence what we say cannot be considered as mere obiter. That question we take next.

II. Does the determination of the Pleadwell case involve the construction of tbe revenue laws of this State, in tbe sense which confers tbe appellate jurisdiction of that cause upon this court ¶ Relator affirms and respondents as vigorously deny. By answer in the Pleadwell case, this relator, as tbe defendant therein, did challenge tbe validity of tbe taxbill which was mentioned in plaintiffs’ petition, and in that way tbe city charter of tbe city of St. Louis, as to tbe issuance and payment of such taxbills, was involved and bad to be construed. Tbe question is, do these provisions of tbe St. Louis city charter pertaining to special taxes for city improvements fall within tbe constitutional category of “causes involving tbe construction of tbe revenue laws of this State.” Counsel for relator makes, an ingenious and able argument on tbe point, raised. He calls attention to the peculiar standing of the St. Louis city charter under our Constitution. He calls ■attention to the dual capacity in which the revenue ■officers of the city act. He urges that they act under this peculiar charter both' for the State and the city. Our cases as pointed out to us speak of this dual capacity, and that such officers do so act, we have no doubt. But all these things do not, in our judgment, make those portions of the city charter relating to •the assessment of benefits to property for public improvements, “revenue laws of this State,” so as to give appellate jurisdiction to this court.

In State ex rel. v. Adkins, 221 Mo. 112, Lamm, P. J., thoroughly reviewed our case law upon this subject. After such review he thus concludes: “From a review of the case we conclude: (1) That when our jurisdiction is put upon the ground that the construction of the revenue laws of the State is involved, the law up for construction must be a State law as contradistinguished from the provisions of a special city charter; (2) that it makes no difference where the law is to be found, whether under the title of ‘Revenue’ or any other title, so long as it relates', to the subject-matter of revenue; (3) that the revenue must be directly and primarily concerned, not merely indirectly or as an incident; (4) that the term ‘revenue law’ covers and includes laws relating to the disbursement of the revenue and its preservation, as well as provisions relating to the assessment, levy and collection -of it; and (5) finally, that where the question in the case is merely one relating to the general practice in circuit court or before justices of the peace, although the case may pertain to the collection of taxes, yet the revenue laws are not involved in a constitutional -sense.”

“With these conclusions' we are fully satisfied. We would emphasize but one point. Our brother uses the phrase “revenue laws of the State” whilst the Oonstitution uses the phrase “the revenue laws of this State.” We are not prepared to say that the word “this” is more pointed as to the laws referred to than is the word “the,” but it occurs to us that its use more strongly tends to show that the legislative mind was dealing with State laws as contradistinguished from city charters. But this is adrift.

Upon the question before us the Adkins case followed the case of the City of Hannibal v. Bowman, 167 Mo. l. c. 536. We see nothing in the case at bar to take it out of the rule established by the two cases, supra. Nor do we see that any good would result from broadening the rule, even if we could. We do not think that the Constitution-makers when they used the phrase “the revenue laws of this State” had any reference to special city charter provisions going solely to local assessments.

It is urged that the Illinois court has given a different construction to a similar provision of their constitution. These cases we have examined, and even if relator’s contention with reference thereto is correct, such would not justify us in receding from the construction in the cases supra.

But we do not agree with counsel upon the question of the similarity of the two constitutional provisions, and therefore the reasoning of the Illinois court need not be noted here.

In view of our own case law, and in my judgment well considered case law, this court has no appellate jurisdiction over the appeal in the case of Pleadwell et al. v. Missouri Glass Co., adjudicated by the St. Louis Court of Appeals.

For this reason the alternative writ of mandamus as heretofore issued by this court is quashed, and the peremptory writ is refused.

All concur.