DOYLE, -Judge,
(after stating the facts as above). It is contended by counsel for petitioner: That the proceedings in which said alleged contempt
of
court took place were wholly fictitious; no person being charged with the violation of law. That it was an inquisition being held by said county judge under authority given by section 4, art. 3, c. 69, p, 604, Sess. Laws, 1907-08, otherwise known as the “Enforcement Act.” That under the Constitution and this section of the law, it is necessary that some one be charged with a violation of the laAV. That there can be no issue in a wholly fictitious proceeding. That for this reason the question propounded to petitioner was not legal or proper, as it was too general and not confined to any person who had been charged with a violation of the prohibitory law. That the court or judge thereof was without jurisdiction or authority to issue said commitments, and that the proceedings in contempt under this statute and the punishment therefor are governed by the provisions of the Criminal Code.
Mr. Caldwell, counsel for the state, contends:
“That said section 4 of said enforcing act does not contemplate that there shall be any prosecution pending before witnesses can be examined as provided for in said section; that said section 4 of said enforcing act makes it mandatory upon the judge to entertain such proceeding whenever he is requested so to do by the county attorney; that in this case the matter being inquired into by the county attorney pertains to violations of said enforcing act; that a contempt of this sort is not, strictly speaking, a criminal contempt, but is rather a civil contempt; and that the proceedings in contempt under this statute, and the punishment therefor. are governed by the provisions of Procedure Civil.”
He admits in his brief, however; that:
“It appears that the commitment tinder which the petitioner is held purports to impose upon him a definite and fixed penalty, to wit, confinement in the county jail for a period of 60 days. In this I think the judgment of the court is in error. However, inasmuch as the court undoubtedly had power and jurisdiction to order the petitioner re-confined in the
county
jail until he should express his willingness to comply with the commands of the court, even though the result might be his confinement there for the remainder of his natural life, and since it nowhere appears from the record in this case that petitioner has, at any time since his commitment for his failure to 'answer the question which he was directed to answer, answered, and the petitioner does not even allege in his petition such willingness to answer said question, I cannot see where he has been in any way prejudiced by the aforesaid irregularity in the commitment.”
On this contention the question is: Was there a contempt committed, and did the county court, or judge thereof, have jurisdiction or authority to issue the commitment under which petitioner is now restrained of his liberty?
All courts have inherent power to punish for contempt. The statutes of this state provide (Wilson's Rev.
&
Ann. St. § 2125) :
“Contempts of court shall be divided into direct and indirect contempts. Direct contempts shall consist of disorderly and insolent behavior committed during the session of the court and in its immediate view and presence, and of the unlawful and wilful refusal of any person to be sworn as a witness, and the refusal to answer any legal or proper question.”
The cases generally further classify contempts of coui*t as either “civil” or “criminal.” The distinction between civil and criminal contempts is plainly drawn. A “civil contempt” is where a person fails or refuses to do something which he has been ordered to do for the benefit of the opposite party to the cause. The punishment by imprisonment is for the purpose of coercing the performance of the act, A civil contempt-is instituted by a private individual for the purpose of protecting or enforcing his rights. The order in such a case is not in the nature of a punishment, but is coercive to compel him to act in accordance with the order of the court. A “'criminal
contempt” embraces all acts committed against the majesty of the law, and the primary purpose of their punishment is the vindication of public authority and the dignity of the courts. In the ease of a criminal contempt the proceeding for its punishment should conform as nearly as possible to proceedings in criminal cases. We cannot assent to the suggestion that the courts can, in criminal eases of this kind, adopt by analogy the penalty provided by the provisions of Procedure Civil for civil contempt. The contempt in this case did not consist in disobedience of some writ or order for the benefit of a private litigant. Eefusal to answer a legal and proper question and to be sworn a second time are the acts averred, and the contempt, if contempt there be, is therefore criminal. It follows that the judgment pronounced was controlled by the provisions of the Criminal Code.
Every exercise of the power to punish a violation of a judicial order is, however, subject to one important qualification, namely, it is absolutely essential that the court making the order should have acted directly within jurisdictional limits, otherwise the disobedience of such an order will be no contempt. In the absence of jurisdiction the judgment is a nullity, and if the punishment he by imprisonment the contemnor will be released cn the hearing of a writ of
habeas corpxis. Ex parte Rowland,
104 U. S. 604, 26 L. Ed. 861;
Ex parte Fisk,
113 U. S. 713, 5 Sup. Ct. 724, 28 L. Ed. 1117;
Ex parte Crenshaw,
80 Mo. 447. The rule, now- supported by high and abundant authority and excellent reason, is that the court must not onW have jurisdiction over the person and the subject-matter, but authority to render the particular judgment.
People v. Liscomb,
60 N. Y. 559, 19 Am. Rep. 211;
Ex parte Degener,
30 Tex. App. 566, 17 S. W. 1111;
Holman v. Austin,
34 Tex. 668.
In a late work on Jurisdiction, the author, in discussing the three essential elements necessary to render a conviction valid, says:
“These are that the court must have jurisdiction over the subject-matter, the person of the defendant, and authority to render
the judgment. If either of these elements are lacking the judgment is fatally defective.” (Brown on Jurisdiction, par. 110.)
“Such want of jurisdiction to render the particular judgment may arise either from a constitutional prohibition against the infliction of such punishment in such cases, or from the infliction of a punishment in excess of that, or the commitment may be for an indefinite time, or it may arise from the punishment, as a contempt of an act or default which in law is not contempt.” • (A. & E. Encyc. [2d Ed.] vol. 7, p. 37.)
The Constitution of the state of Oklahoma, in its Bill of Rights, § 21 (Bunn’s Ed. § 30), provides that:
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DOYLE, -Judge,
(after stating the facts as above). It is contended by counsel for petitioner: That the proceedings in which said alleged contempt
of
court took place were wholly fictitious; no person being charged with the violation of law. That it was an inquisition being held by said county judge under authority given by section 4, art. 3, c. 69, p, 604, Sess. Laws, 1907-08, otherwise known as the “Enforcement Act.” That under the Constitution and this section of the law, it is necessary that some one be charged with a violation of the laAV. That there can be no issue in a wholly fictitious proceeding. That for this reason the question propounded to petitioner was not legal or proper, as it was too general and not confined to any person who had been charged with a violation of the prohibitory law. That the court or judge thereof was without jurisdiction or authority to issue said commitments, and that the proceedings in contempt under this statute and the punishment therefor are governed by the provisions of the Criminal Code.
Mr. Caldwell, counsel for the state, contends:
“That said section 4 of said enforcing act does not contemplate that there shall be any prosecution pending before witnesses can be examined as provided for in said section; that said section 4 of said enforcing act makes it mandatory upon the judge to entertain such proceeding whenever he is requested so to do by the county attorney; that in this case the matter being inquired into by the county attorney pertains to violations of said enforcing act; that a contempt of this sort is not, strictly speaking, a criminal contempt, but is rather a civil contempt; and that the proceedings in contempt under this statute, and the punishment therefor. are governed by the provisions of Procedure Civil.”
He admits in his brief, however; that:
“It appears that the commitment tinder which the petitioner is held purports to impose upon him a definite and fixed penalty, to wit, confinement in the county jail for a period of 60 days. In this I think the judgment of the court is in error. However, inasmuch as the court undoubtedly had power and jurisdiction to order the petitioner re-confined in the
county
jail until he should express his willingness to comply with the commands of the court, even though the result might be his confinement there for the remainder of his natural life, and since it nowhere appears from the record in this case that petitioner has, at any time since his commitment for his failure to 'answer the question which he was directed to answer, answered, and the petitioner does not even allege in his petition such willingness to answer said question, I cannot see where he has been in any way prejudiced by the aforesaid irregularity in the commitment.”
On this contention the question is: Was there a contempt committed, and did the county court, or judge thereof, have jurisdiction or authority to issue the commitment under which petitioner is now restrained of his liberty?
All courts have inherent power to punish for contempt. The statutes of this state provide (Wilson's Rev.
&
Ann. St. § 2125) :
“Contempts of court shall be divided into direct and indirect contempts. Direct contempts shall consist of disorderly and insolent behavior committed during the session of the court and in its immediate view and presence, and of the unlawful and wilful refusal of any person to be sworn as a witness, and the refusal to answer any legal or proper question.”
The cases generally further classify contempts of coui*t as either “civil” or “criminal.” The distinction between civil and criminal contempts is plainly drawn. A “civil contempt” is where a person fails or refuses to do something which he has been ordered to do for the benefit of the opposite party to the cause. The punishment by imprisonment is for the purpose of coercing the performance of the act, A civil contempt-is instituted by a private individual for the purpose of protecting or enforcing his rights. The order in such a case is not in the nature of a punishment, but is coercive to compel him to act in accordance with the order of the court. A “'criminal
contempt” embraces all acts committed against the majesty of the law, and the primary purpose of their punishment is the vindication of public authority and the dignity of the courts. In the ease of a criminal contempt the proceeding for its punishment should conform as nearly as possible to proceedings in criminal cases. We cannot assent to the suggestion that the courts can, in criminal eases of this kind, adopt by analogy the penalty provided by the provisions of Procedure Civil for civil contempt. The contempt in this case did not consist in disobedience of some writ or order for the benefit of a private litigant. Eefusal to answer a legal and proper question and to be sworn a second time are the acts averred, and the contempt, if contempt there be, is therefore criminal. It follows that the judgment pronounced was controlled by the provisions of the Criminal Code.
Every exercise of the power to punish a violation of a judicial order is, however, subject to one important qualification, namely, it is absolutely essential that the court making the order should have acted directly within jurisdictional limits, otherwise the disobedience of such an order will be no contempt. In the absence of jurisdiction the judgment is a nullity, and if the punishment he by imprisonment the contemnor will be released cn the hearing of a writ of
habeas corpxis. Ex parte Rowland,
104 U. S. 604, 26 L. Ed. 861;
Ex parte Fisk,
113 U. S. 713, 5 Sup. Ct. 724, 28 L. Ed. 1117;
Ex parte Crenshaw,
80 Mo. 447. The rule, now- supported by high and abundant authority and excellent reason, is that the court must not onW have jurisdiction over the person and the subject-matter, but authority to render the particular judgment.
People v. Liscomb,
60 N. Y. 559, 19 Am. Rep. 211;
Ex parte Degener,
30 Tex. App. 566, 17 S. W. 1111;
Holman v. Austin,
34 Tex. 668.
In a late work on Jurisdiction, the author, in discussing the three essential elements necessary to render a conviction valid, says:
“These are that the court must have jurisdiction over the subject-matter, the person of the defendant, and authority to render
the judgment. If either of these elements are lacking the judgment is fatally defective.” (Brown on Jurisdiction, par. 110.)
“Such want of jurisdiction to render the particular judgment may arise either from a constitutional prohibition against the infliction of such punishment in such cases, or from the infliction of a punishment in excess of that, or the commitment may be for an indefinite time, or it may arise from the punishment, as a contempt of an act or default which in law is not contempt.” • (A. & E. Encyc. [2d Ed.] vol. 7, p. 37.)
The Constitution of the state of Oklahoma, in its Bill of Rights, § 21 (Bunn’s Ed. § 30), provides that:
“No person shall be compelled to give evidence which will tend to incriminate him, except as in this 'Constitution specifically provided.”
And section 27 (Bunn’s Ed. § 36) provides:
“Any person having knowledge or possession of facts that tend to establish the guilt of any other person or corporation, charged with an offense against the laws of the state, shall not be excused from giving testimony or producing evidence, when legally called upon so to do, on the ground that it may tend to incriminate him under the laws' of the state; but no person shall be prosecuted or subjected to any penalty or forfeiture for or on account of any transaction, matter, or thing concerning which he may so testify or produce evidence.”
Section 4, art. 3, c.'69, p. 604, Sess. Laws 1907-08 provides as follows:
“Sec. 4. It shall be the duty of any judge of the district or county court, upon a request of the county attorney, or upon the complaint of any other person, supported by affidavit, to issue subpoenas for any witnesses that may have knowledge of the violation of any of the provisions of this act, and such judge shall have power, and it shall be his duty, to compel such witnesses to appear before him and give testimony and produce any books or papers that will assist in the prosecution of any person who may be charged with violating any of the provisions of this act.”
Said section further provides:
“Should any witness refuse to appear before such judge, in obedience to such subpoena, or refuse to produce any books or papers when lawfully required so to do, or having appeared, shall
refuse to answer any proper questions, or sign his testimony when so required, it shall be the duty of said judge to punish as for contempt in accordance with the constitution and laws of the -state.”
An inquisition under the provisions of said section 4 of said enforcement act is a proceeding special in its nature, and no presumption can attach in favor of its jurisdiction; and before petitioner could be held guilty of contempt it must be shown affirmatively that a criminal case was pending in which he was sworn as a witness. It is apparent from t-he language of section 27 of the Bill of Bights that the immunity therein granted to persons called to testify contemplates a charge against some person or corporation with a violation of the law; and the language of said section 4 expressly requires as a condition precedent that the request of the county attorney, or the complaint of other persons, be supported by affidavit, and while it is not essential that the complaint and affidavit designate by name the person or persons charged, if not known, the complaint should so state. We believe it is a prerequisite, under the Constitution and said law, that -the proceedings under said section 4 of said enforcing act should be predicated upon a complaint supported by affidavit. The relations of petitioner to the subject of inquiry before the county judge, as shown by the questions put to him and his answers thereto, in connection with the penal provisions of the prohibitory law, entitled him to invoke the protection of section 21 of the Bill of Bights, unless section 27 of the Bill of Bights removes the protection of the constitutional privilege. Section 27 must be construed as declaring that no evidence obtained from a witness by means of a judicial proceeding shall be given in evidence, or in any manner used against him, in any criminal proceeding, or for the enforcement of any penalty or forfeiture. Similar constitutional provisions have received many interpretations in the federal and state courts, and the uniform holding has been that no statute which leaves the party or witness subject to prosecution, after he answers the crim-inating question put to him, can have the effect of supplanting the privilege conferred by the Constitution; however, in the view
we take of this ease, we do not think it necessary to review the adjudicated cases.
It is apparent that in this case, and it is conceded by counsel for the state, that no person was charged with an offense against the laws of the state in the proceedings had before said county judge, and in the absence of this essential condition precedent, for the reasons hereinbefore stated, the witnesses could not be compelled ¡to answer the question propounded. Whatever the power may be of the court or judge sitting in chambers, or whether that power be inherent or conferred by statute, to punish summarily for a contempt, persons guilty of criminal contempt, our Constitution and laws contemplate that the power shall be exercised only where the court or judge has jurisdiction of the person and the subject-matter, and without such jurisdiction the judgment is void.
The contention that said section 4 of said enforcing act makes it mandatory upon the judge to entertain such proceedings whenever he is requested so to do by the county attorney is not'well taken. It will be noticed that said section 4 seeks to make this the duty of the district judges. The Constitution (section 183, Bunn's Ed.) takes from the district courts all jurisdiction, original and appellate, in misdemeanor cases, and gives jurisdiction to county courts, as follows:
“The county court shall have jurisdiction concurrent with justices of the peace in misdemeanor cases, and exclusive jurisdiction in all misdemeanor cases of which justices of the peace have not jurisdiction."
The absurdity of this contention is apparent when we consider that said- section 4 seeks to make it the duty of the judge of a district court to investigate matters outside the jurisdiction of his court on the request of a county attorney, or upon the complaint of any other person supported by. affidavit. We can hardly believe that the business of district courts could be interrupted in this manner, and the said section, in so far as it relates to district judges, is apparently in conflict with the foregoing constitutional provisisn
It has been deemed necessary, in order to prevent abuses of the power thus conceded, to prescribe and limit by statute the punishment to be imposed for contempts. The federal laws and laws of nearly all the states so provide. The statute of this state (section 2'12'6, Wilson’s Eev. & Ann. St. 1903) is as follows:
“Punishment for contempt shall be by fine or imprisonment, or both, at the discretion of the court; but the fine in no case shall exceed fifty dollars or imprisonment a longer term than ten days in the county jail; provided, that when any person shall be imprisoned for the nonpayment of a fine he shall be discharged at the expiration of thirty days.”
Thus it will be seen that the county court or judge thereof was without power or authority of law to render the judgment and issue the commitment for 60 days, as was done in this ease. This statute limits the duration of the imprisonment and the amount of the fine, and the punishment must conform .to such limitation, and cannot exceed it. If there had been a criminal contempt, the judgment and sentence would still have been without authority of law.
From a consideration of the language of the constitutional provisions in the Bill of Eights referred to, and section 4 of the so-called “enforcement act,” we are clearly of opinion that the petitioner was entitled to refuse, as he did, to answer. The examination of the record shows that the questions propounded are not in proper form, and assume the fact that petitioner carried whisky to his home. The commitment, as shoAvn by Exhibit A, does not conform to the requirements of the statute. Section 2128, Wilson’s Eev. & Ann. St. 1903, provides:
“Whenever a person shall be imprisoned for contempt the substance of the offense shall be set forth in order for confinement and made a matter of record in the court.”
For the reasons hereinbefore stated, the writ of
haheas corpus
is hereby allowed, and the petitioner discharged.
FUEiTAN, Presiding Judge, and BAKEE, Judge, concur.