[678]*678'The opinion of the court was delivered by
Hurd, J.:
W. W. Dill filed his petition in this court for a writ of habeas corpus, and by it shows the following facts: On the 12th day of April, 1884, the district court in and for Sedgwick county made and -entered this order:
“The State of Kansas v. W. W. Dill. — It appearing that the defendant, being bound to be present in and not depart the court without leave, has departed from the court for the purpose of interrupting the proceedings of the court, it is ordered that an attachment issue for the person of the defendant, W. W. Dill, and that he be forthwith brought before the court or judge thereof, to show cause why he should not be punished as for a contempt of the court.”
Under this order the petitioner was arrested, and on the 28th day of April, 1884, the court made findings and rendered judgment in such proceedings, as follows:
“In the Matter of the Attachment of W. W. Dill for Contempt of Court.
“ Now on this 28th day of April, 1884, at the adjourned term of the court, comes W. W. Dill, in pursuance of the attachment heretofore issued, and the court having heard the explanations and admissions of the said ~W. W. Dill, and heard the evidence,adduced, and being fully advised in the premises, finds the facts as follows:
“At the February term, 1884, the criminal action of the State of Kansas against said ~W. W. Dill, and the criminal action of the State of Kansas against the said W. W. Dill, together with one John Rawles (Rolls), were pending for trial and were ready to be proceeded with to trial on the first day of April, 1884, the said court being then and there regularly in session, and that the said W. W. Dill was then and there under recognizance in each of said actions to appear before said court at said term to answer the charge therein, being a charge for the unlawful sale of intoxicating liquors in the county of Sedgwick, State of Kansas.
“ That the said criminal action of the State of Kansas against W. W. Dill.and John Rawles (Rolls)'was duly called for trial by the said court as against the said W. W. Dill, the first day of April, 1884.
“That the said W. W. Dill did not appear, and his attor[679]*679neys being the same now representing him in this proceeding, then and there withdrew their appearance for him in said action, so that the trial of said action could not be proceeded with.
“That on said first day of April, 1884, and prior to the commencement of the court for that day, the said W. W. Dill, without leave of the court, departed from the county of Sedgwick, and kept himself so that he could not be found by the officers of the court.
“That the court continued in open session during the daytime, from said first day of April, 1884, to Monday, the 14th day of April, 1884.
“That said W. W. Dill so absented himself until Saturday night, the 12th day of April, 1884, at an hour when the court was not in session, and ascertained that the court would again be in session on April 14th; and on Sunday, April 13, 1884, the said W. W. Dill again absented himself from said county so that he could not be found until the court had taken an adjournment from April 14, 1884, to April 28, 1884; and soon after said adjournment had been taken, appeared and entered into a new recognizance for his appearance at the June term, 1884, of said court; that by means of the absence of said Dill, and the non-appearance of any counsel for him, the court was prevented from proceeding with the trial of said actions, and has been compelled to continue the same until the June term, 1884, of said court.
“The court finds also, from said facts, that said W. Dill so absented himself from said court for the purpose and with the intent of obstructing the court in proceeding with the trial of said actions, and for the purpose of obstructing and preventing the said court in the administration of justice, the court not being able to proceed with the trial of said actions, in the absence of said Dill and his attorney.
“The said Dill offers the following facts as an excuse for his absence :• That he received a dispatch from Neolo, Iowa, on the 31st day of March, that his sister was dangerously ill, and that he went to see her in her sickness, and that on his return he had some business in Butler county, Kansas, and went there to attend the same, and returned to the city of Wichita when it was completed; that the said court was and is held in the city of Wichita, Sedgwick county, Kansas.
“The court holds said excuse insufficient, and finds the said W. W. Dill guilty of contempt of the court in the premises.
“The said W. W. Dill objects to the court proceeding in the [680]*680present matter, for the reason that it has no jurisdiction or authority in the premises, and objects to any punishment being inflicted for the same reason, and for the further reason that the facts found do not in law constitute a contempt.
“ It is therefore considered, ordered and adjudged by the court that the said W. W. Dill pay to the State of Kansas a fine in the sum of three hundred dollars, and pay the costs of this proceeding, taxed at $-, and that he be committed to the jail of Sedgwick county, Kansas, until said fine and costs are paid. To which findings of fact and judgment the said W. W. Dill at the time excepted.”
He states in his petition that under this judgment so rendered, he was arrested and committed to the jail of Sedgwick county, and is now imprisoned therein, and alleges that such imprisonment was and is illegal, because the act charged against him is not a contempt of court, and prays that a writ of habeas corpus be issued by this court, and that the legality of his imprisonment be inquired into, and he be discharged from imprisonment.
Under this petition a writ of habeas corpus w^as issued to the sheriff of Sedgwick county, who made his return to the writ that he holds the petitioner under a process issued in the pi’oceedings, and under the judgment mentioned in the petition. We have here presented, the judgment or order of a court having jurisdiction to commit for contempt. In the outset of our inquiry and investigation we are confronted with § 671, ch. 80 of Comp. Laws, as follows :
“Sec. 671. No court or judge shall inquire into the legality of anyjudgment or process, whereby the party is in custody, or discharge him when the term of commitment has not ex-. pired in either of the cases following:
“First, Upon process issued by any court or judge of the United States, or where such court or judge has exclusive jurisdiction; or,
“Second, Upon any process issued on any final judgment of a court of competent jurisdiction; or,
“Third, For any contempt of any court, officer or body having authority to commit; but an order of commitment as for a contempt, upon proceedings to enforce the remedy of a party, is not included in any of the foregoing specifications.
[681]*681“Fourth, Upon a warrant or commitment issued from the district court, or any other court of competent jurisdiction, upon an indictment or information.”
The question is presented whether courts of this state are by this statute prohibited in proceedings by habeas corpus from examining the proceedings or record of another court in the cases mentioned in the statute, and if it is found upon such examination that the court rendering the judgment had no jurisdiction of the subject-matter, or of the petitioner, or had exceeded its authority, or that no crime or offense had been committed, discharging the petitioner, or whether his remedy is only by appeal to a higher court.
The counsel on behalf of the state contend that the statute referred to does prohibit courts from examining such records, and from discharging the accused in the cases mentioned in it, and refer to the following decisions of this court as sustaining their position: Ex parte Phillips, 7 Kas. 48. Phillips was charged by information with grand larceny. A jury was impaneled to try the cause, and the prosecuting attorney, not being ready to proceed, with the consent of the court withdrew a juror, and the cause was continued. Phillips brought proceedings for a writ of habeas corpus, and the writ was properly denied. The court, by Brewer,, J., says:
“It is not every improper, illegal restraint of liberty that can be inquired into by habeas corpus. The limits beyond which no, court can go, are fixed by statute.”
And citing § 671, civil code, then adds:
“The plain import of this language forbids an inquiry (at this time) into the alleged errors in the proceedings of the district court. An information was filed; it still remains; no verdict or judgment was ever returned, or rendered thereon.”
In Ex parte Nye, 8 Kas. 99, the court, by Kingman, C. J., refers to § 671 of the statute. The syllabus seems to hold as claimed by counsel, though the writ was refused because of a want of proper showing on the part of the petitioner.
In In re Payson, 23 Kas. 757, the petitioner was prosecuted criminally under §§ 94 and 84 of the crimes act, for obtaining' [682]*682a signature to a deed by false pretenses, and convicted, sentenced, and imprisoned. He applied for a writ of habeas corpus on the ground that there was no law authorizing any punishment for the offense charged in the information, and that the court had no jurisdiction to render the judgment, and that the sentence Avas illegal and void. This court upon an examination of the record held that the sentence was not void, and remanded the petitioner, clearly recognizing the right of this court in habeas corpus proceedings to go behind the commitment and inquire into its cause, and determine its legality.
In In re Petty, 22 Kas. 477, the court holds that if a sentence and judgment are wholly void, and not merely irregular or. erroneous, then the petitioner under proceedings by habeas corpus is entitled to his dischai’ge; but if the verdict is valid, and the judgment is not void, but irregular merely, the prisoner cannot be relieved under proceedings by habeas corpus, clearly recognizing the right of this court to look into the record for the cause of the commitment, aud if the judgment is void release'the prisoner.
In In re Goldsmith, 24 Kas. 758, the petitioner was convicted before a justice of the peace and imprisoned, and applied to this court for a writ of habeas corpus. The court held that the process sufficiently shoA\red that the justice had jurisdiction, and refused the writ.
In In re Millington, 24 Kas. 214, Millington Avas fined $200 for contempt, for certain publications in- a newspaper, and adjudged to be imprisoned until the fine Avas paid. The court, after an examination of the record on Aidiich the commitment Avas issued, held - that the court was not legally convened when the judgment was rendered; and therefore that the judgment was void and the commitment was illegal; apd Millington Avas discharged under a writ of habeas corpus.
Proceedings by habeas corpus antedate the constitutions of the United States and of the several states. That part of § 9 of article 1 of the constitution.of the .United States, in these words: “The.privilege of the writ of habeas corpus shall not be suspended, unless when in cases of rebellion or invasion [683]*683the public safety may require it,” refers, to the proceedings by habeas corpus as then known, established, and practiced, and is a limit on the law-making power of the United States, as well as of the several states, and they can pass no law that takes from the individual any of his rights under proceedings by habeas corpus as they existed when the constitution of the United States took effect.
The supreme court of the United States has defined the rights of persons in proceedings by habeas corpus under the constitution and laws of the United States, in Ex parte Lange, 18 Wall. 163. Lange was indicted under an act of congress “for stealing, purloining, embezzling and appropriating to his own use certain mail bags belonging to the post-office department.” On a trial the jury found him guilty of appropriating to his own use mail bags “less in value than twenty-five dollars, the punishment for Avhich offense as provided by that statute is imprisonment for not more than one year, or a fine of not less than ten dollars and not more than two hundred dollars.” The court sentenced the prisoner under such conviction to one year’s imprisonment and to pay two hundred dollars fine. The petitioner Avas committed to prison in execution of the sentence, and on the folloAving day the fine was paid to the clerk of the court, who paid it into the treasury of the United States. On the day following, the prisoner was taken before that court on a habeas corpus, the same judge presiding, and an order entered vacating the former judgment, and -the prisoner again ■ sentenced to one year’s imprisonment from that date. A second writ of habeas corpus was issued by the circuit judge, and after a hearing, the writ Avas discharged. A Avrit of habeas corpus Avas then issued by the supreme court. The court, by Miller, J., says:
“Disclaiming any assertion of a general power of review over the judgments of the inferior courts in criminal cases by the use of the writ of habeas corpus or otherwise, we proceed to examine the case as disclosed by the record of the circuit court and the return of the marshal, in whose custody the prisoner is found, to ascertain whether it shoAvs that the court [684]*684below had any poyer to render the judgment by which the prisoner is held. . . .
“ There is no more sacred duty of a court than, in a case properly before it, to maintain unimpaired those securities for the personal rights of the individual which have received for ages the sanction of the jurist and the statesman; and in such cases no narrow or illiberal construction should be given to the words of the fundamental law in which they ai’e embodied. Without straining either the constitution of the United States or the well-settled rules of the common law, we have come to the conclusion that the sentence of the circuit court under which the petitioner is held a prisoner, was pronounced without authority, and he should therefore be discharged.”
And the court held—
“The doctrine of this court affirmed, and the cases in support of it cited, that where a prisoner shows that he is held under a judgment of a federal court, made without authority of law, the supreme court will, by writs of habeas corpus and certiorari, look into the records, so far as to ascertain that fact, and if it is found to be so, will discharge the prisoner.”
The sole purpose of the certiorari in such proceedings is to bring the record under which the imprisonment is charged, for examination. This ease and the authorities cited in the opinion, clearly show that under the constitution and laws of the United States, the court may, in proceedings in habeas corpus, look into the judgment of another court in a criminal case, and if it is found that such court had no authority to render the judgment, release the prisoner. By the practice of the courts of this state, the petitioner must produce the record if he desires the court to examine it.
The habeas corpus act of New York is as follows:
“Every person committed, detained, confined, or restrained of his liberty for any criminal or supposed criminal mattey under any pretense whatsoever (except as hereafter mentioned), may prosecute a writ of habeas corpus to inquire into the cause of such imprisonment or restraint. The following persons shall not be entitled to prosecute such writ:
“1. Persons committed or detained by virtue of any process issued by any court of the United States,” etc.
“2. Persons committed or detained by virtue of the final [685]*685judgment or decree of any competent tribunal of civil or criminal jurisdiction, or by virtue of any execution issued upon sucb judgment or decree,” etc.
Under this statute many decisions of the courts of that state have been rendered, the latest of which is The People, ex rel. William M. Tweed, v. Liscomb, Warden, &c., 60 N. Y. 559. Tweed, the relator, was confined in the penitentiary of which the defendant was warden. At a court of oyer and terminer, held in and for the city and county of New Yoi’k, the relator was tried upon an indictment containing two hundred and twenty separate counts, each charging a misdemeanor, and on a trial was found guilty on two hundred and four of the counts. Upon twelve of the counts the court sentenced him to twelve successive terms of imprisonment of one year each, and to fines of $250 each; upon other counts to additional fines, amounting in all to $12,500. The maximum punishment fixed by the statute under which he was indicted, is one year’s imprisonment and a fine of $250. A commitment was issued, and he was confined in the penitentiary, and having been there one year and paid one fine of $250, he made application for a writ of habeas corpus to inquire into the legality of his continued imprisonment. The court,, by Allen, J., says:
“The history of the writ is lost in antiquity. It was in use before magna charla, and came to us as a part of our inheritance from the mother country, and exists as a part of the common law of the state. It is intended and well adapted to effect the great object secured in England by magna charla, and made a part of our constitution, that no person shall be deprived of his liberty ‘without due process of law.’ This writ cannot be abrogated, or its efficiency curtailed, by legislative action. Cases within the relief afforded-by it at common law cannot, until the people voluntarily surrender the right to this, the greatest of all writs, by an amendment of the organic law, be placed beyond its reach and remedial action. The privilege of the writ cannot even be temporarily suspended, except for the safety of the state, in cases of rebellion or invasion. The remedy against illegal imprisonment afforded by this writ, as it was known and used at common law, is placed beyond the pale of legislative discretion, except that it may be suspended when public safety requires. . . .
[686]*686“Persons committed or detained by virtue of the final judgment or decree of any competent tribunal of civil or criminal jurisdiction, or by virtue of any execution issued upon such judgment or decree, are expressly excluded from the benefit of this act. (2 R. S. 563, §22.) And if, upon the return of the writ, it appears that the party is detained in custody by virtue of such judgment or decree, or any execution issued thereon, he must be remanded. (Id. 567, §40.) Such persons are deprived of their liberty 1 by due process of law/ and are not within the purview of the constitution, or the purposes of the writ. To bar the applicant from a discharge from arrest by virtue of a judgment or decree, or an execution thereon, the court in which the judgment or decree is given must have had jurisdiction to render such judgment. The tribunal must be competent to render the judgment under some circumstances. 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. If the record shows that the judgment is not merely erroneous, but such as could not under any circumstances or upon any state of facts have been pronounced, the case is not within the exception of the statute, and the applicant must be discharged. If the judgment is merely erroneous, the court having given a wrong judgment when it had jurisdiction, the party aggrieved can only have relief by writ of error, or other process of review. He cannot be relieved summarily by habeas corpus.
“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.”
Tweed was released from imprisonment, the court hold[687]*687ing that the court rendering the judgment had exceeded its authority. In this case, under constitutional and statutory provisions substantially like ours, that court laid down the following rules in relation to writs of habeas corpus and the powers and duties of courts thereunder, which may well be adopted in this state:
“The right to relief from unlawful imprisonment through the instrumentality of the writ of habeas corpus is not the creation of any statute, but exists as part of the common law of the state.
“ The writ cannot be abrogated, or its efficiency impaired, by legislative action, and cases within the relief afforded by the writ at common law cannot, under the state constitution, be placed beyond its reach.
“ The various statutes relating to the writ have not been intended to detract from its force, but to add to its efficiency.
“The provision of the habeas corpus act excluding from its benefits persons committed or detained by virtue of the judgment or decree of a 'competent tribunal/ only applies where the tribunal had jurisdiction to render the judgment under some circumstances.
“The prohibition contained in said act forbidding an inquiry, upon return to Avrit, into 'the legality and justice of any process, judgment, decree, or execution/ specified in the provision above referred to, does not take from the court or officer having jurisdiction of the Avrit the power, or relieve from the duty, of determining whether the judgment or process emanated from a court of competent jurisdiction, and whether the court had the 'power to give the judgment or issue the process.
“Jurisdiction of the person of the prisoner and of the subject-matter is not alone conclusive, but the jurisdiction of the court to render the particular judgment is a proper subject of inquiry; and while the court or officer cannot, upon return to the writ, go behind the judgment and inquire into alleged errors and irregularities preceding it, the question is presented and must be determined whether, upon the whole record, the judgment was warranted by law, and was within the jurisdiction of the court.
“The presumption in favor of the jurisdiction of a court of general jurisdiction is not conclusive, but is one of fact, and may be rebutted.
“Where the jurisdiction depends upon certain facts, and [688]*688the court has passed upou those facts, its determination is conclusive until reversed or set aside.”
In Ex parte Summers, 7 Pa. Law Journal, 107, it was held that where a court imposes a fine or imprisonment for a contempt, and the court does not state the facts constituting the contempt, no other court can reverse its decision. But if the court does state the facts upon which it proceeds, a revising tribunal may, on a habeas corpus, discharge the party if it appear that the facts do not amount to a contempt.
In The People v. Hackley, 24 N. Y. 75, the prisoner was confined for a contempt in refusing to answer questions before a grand jury, basing his refusal on the ground that any answers he might make would “tend to accuse him of crime.” The court, by Denio, J., says:
“ As a general rule, the propriety of a commitment for contempt. is not examinable in any other court than the one by which it was awarded. This is especially true where the proceeding by which it is sought to be questioned is a writ of habeas corpus; as the question of the validity of the judgment then arises collaterally, and not by way of review. The habeas corpus act, moreover, declares that where the detention of the party seeking to be discharged by habeas corpus appears to be for any contempt, plainly and specially charged in the commitment, ordered by a court of competent jurisdiction, he shall be remanded to the custody in which he was found. But this rule is of course subject to the qualification, that the conduct charged as constituting the contempt must be such that some degree of delinquency or misbehavior can be predicated of it; for if the act be plainly indifferent or meritorious, or if it be only the assertion of the undoubted right of the party, it will not become a criminal contempt by being adjudged to be so. ’ The question whether the alleged offender really committed the act charged will be conclusively determined by the order or judgment of the court; and so with equivocal acts which may be culpable or innocent according to circumstances; but where the act is necessarily innocent or justifiable, it would be preposterous to hold it a cause of imprisonment.”
Under the authorities before cited, and on principle, we think that §671 of the statute does not prohibit one court, by and under proceedings in habeas corpus, from examining the [689]*689judgment or commitment for contempt of another court under which a person is restrained of his liberty; and if on such examination it appears, and the record shows, that the court rendering the judgment was without jurisdiction to render it under some circumstances, or if the charge on which the petitioner is convicted and imprisoned does not constitute an offense for which punishment can be inflicted, or that the court has rendered a judgment which it had no authority to render, or has exceeded its authority, from discharging the petitioner from imprisonment.
Do the facts found by the court and embodied in the judgment constitute a contempt of court? The substance of the charge and facts found is, that the petitioner was under a recognizance to appear in court for trial upon criminal charges pending against him therein; that he did not appear during the term to which he was recognized, and absented himself from the county and kept himself so that he could not be found by the officers of the court, intending thereby to obstruct the court in proceeding with his trial.
To constitute a direct contempt of court there must be some disobedience to its order, judgment or process, or some open and intended disrespect to the court or its officers in the presence of the court, or such conduct in or near the court as to interrupt or interfere with its proceedings, or with the administration of justice.
To constitute a constructive contempt of court, some act must be done, not in the presence of the court or judge, that tends to obstruct the administration of justice, or bring the court or judge or the administration of justice into disrespect.
The petitioner violated no order, direction or judgment of the court, nor was he at large by direction or order of the court. He had entered into a recognizance as the statute permitted him to do, by which he bound himself to the state, to appear in court at the time and term of the court stated in the recognizance, and submit to a trial of the criminal charges therein pending against him. He did not appear in the court [690]*690as required by the recognizance, and absented himself from, the county in which the court was held. The extent of his offending was in not appearing in' court and submitting to the trial as he had bound himself to do by the recognizance, and in absenting himself from the county where the court was held. The statute (Comp. Laws of 1879, ch. 82, §65) provides that when a person under recognizance in any criminal proceeding shall fail to perform the condition of such recognizance, his default shall be recorded and proceedings entered upon the recognizance, and this entry must necessarily be made and these proceedings be taken under the direction of the court, and so far as the statute provides, the authority of the court to direct proceedings then ends. The only penalty imposed by law on the petitioner for his non-appearance, pursuant to the terms of the recognizance, was the forfeiture and prosecution of the recognizance. We think that his nonappearance in court during the term for which he was recognized to appear and his absenting himself from the county, were not a contempt of court, and that the charge against him on which he was convicted and is now imprisoned did and does not constitute such an offense as renders him liable to punishment beyond the punishment provided by the statute; and as there was no offense, there could be no lawful conviction, and the court had no jurisdiction to render any legal judgment, and the judgment rendered is void, and the imprisonment of the petitioner under it is unlawful.
The only case within our knowledge bearing upon the question whether the acts or omissions of the petitioner were a contempt of court, is Ingle v. The State, 8 Blackf. 574. In that case a party was indicted, and bound by his recognizance to appear and answer the charge. He was advised by an attorney “ that, if he could not procure a continuance on affidavit, he could escape and. forfeit his recognizance, which would work a continuance of the cause to the next term, at a trifling cost.” Held, That the attorney, for giving such advice, was not guilty of a contempt of court. If an attorney, who is an officer of [691]*691the court, can give such advice and not be in contempt, surely the client who acts upon the advice cannot be guilty, and if the accused under such circumstances, certainly a party whose only offense is absenting himself from the court on his own volition, cannot be guilty of a contempt of court.
The petitioner could have taken proceedings in error in this court, and thereby relieve liimself from this void judgment and illegal imprisonment, but that is not his only remedy. The proceedings by habeas corpus are proper, and he is entitled to be discharged from imprisonment under them.
The order is, that the petitioner be discharged from the arrest and imprisonment of which he complains in his petition for the writ issued.