The opinion of the court was delivered by
Brewer, J.:
On the 17th of May, 1880, the judge of the thirteenth judicial district caused an attachment to be issued against D. A. Millington, the editor and publisher of the Winfield Courier, for contempt, on account of certain articles published in said paper. The same day, Millington was arrested, and after a hearing, adjudged guilty and fined two hundred dollars. This order and judgment have been brought to our consideration both by habeas corpus and appeal. They are challenged on various grounds, and said to be not only erroneous, but absolutely void. It is claimed that if said Millington were guilty of a contempt, the punishment imposed is one beyond the power of the court to impose, and therefore void. Again, it is urged that the court had become adjourned by operation of law, and that therefore this entire proceeding was extrajudicial and void. Further, that the articles complained of did not constitute a contempt, and had no tendency to obstruct the administration of justice. And still further, that the answer of said Millington fully exonerated him.
It is obvious that some of these matters are not open for consideration in the habeas corpus proceeding. For in that, only questions of power, and not questions of error, are before us.
[221]*221The first proposition is, that the district court has no power to impose a fine of $200 for contempt. This is claimed under §2 of ch. 28 of the Compiled Laws of 1879. That section reads as follows:
“The judges of the district courts, within their respective districts, shall have and exercise such power in vacation, or at chambers, as may be provided by law, and shall also have power in vacation to hear and determine motions to vacate or modify injunctions, discharge attachments, vacate orders of arrest, and to grant or vacate all necessary interlocutory orders, and to punish for contempt in open court, or at chambers, by fine not to exceed one hundred dollars, and imprisonment, or either, and to assign not exceeding one attorney to prisoners who may be unable to employ counsel.”
The argument is, that as the constitution provides that the district courts shall have such jurisdiction as may be provided by law, (Const., art. 3, § 6,) and that as this is the only section in which the power of the court or judge to punish for contempt is named, it includes all the power vested in a court or a judge in matters of contempt.
We do not agree with counsel in these views. The plain language of the section is a grant of power to the judge, and not to the court, and the constitution provides that the several justices and judges of the courts of record in this state shall have such jurisdiction at chambers as may be provided by law. (Const., art. 3, § 16.) The section all the way through grants power to the judge, and not to the court. It is true, it speaks of “contempt in open court or at chambers,” but it grants no power to the court; it simply provides what the judge may do in such cases. The prior section grants power to the court, and gives it “general original jurisdiction of all matters, both civil and criminal (not otherwise provided by law)”. It may be conceded that the language of § 2 is not altogether apt or happy, but as we construe it, it contains only a grant of power to the judge in vacation in pursuance of said § 16 of the constitution, and gives to him a power at chambers to punish for a contempt committed in open court. Such is the plain reading of the language; and when we [222]*222notice that the prior section grants power to the court, the obvious meaning of the language seems imperative. If it be contended that without this § 2 no power is in terms granted to the district court to punish for contempt, we reply that it is one of the prerogatives — one of the inherent powers of a court — that it may punish for disorderly conduct in the court room, resistance of process, or any interference with its proceedings which amounts to actual contempt. The statute in terms nowhere gives to this court, which is the final tribunal, the ultimate arbiter of all rights and disputes between litigants, the power to punish for contempt of its proceedings and orders. And yet, is it possible to suppose that this court may not punish for a disturbance in its court room, or for a resistance of its process ? (Bacon’s Abridgement, title, Courts; ex parte Robinson, 19 Wall. 505; Morrison v. McDonald, 8 Shep. 550; State v. Woodfin, 5 Ired. 199.) So far as judges of the district court acting in vacation or at chambers are concerned, the legislature has limited their powers, though even as to them, it has placed no limit on the term of imprisonment they may impose. Upon the power of justices of the peace, it has also placed a limitation. (Comp. Laws 1879, p.732, §199 and 200.) But as to courts of record, it has left their powers to punish for contempt free and open to all the necessities of the occasion. There are exceptions to this, as in the matter of disobedient witnesses, etc., but outside of the several named limitations, the power of courts of record to punish for actual contempt is left free to the actual necessities of the wrong. A poor farmer who resists the process of the court may be fully punished by a fine of one hundred dollars, but a railroad magnate who tries to rob the county or defies the process of the court, would laugh at such a fine. The legislature has wisely left the power of the court equal to the wrong attempted. Any resistance of the power or process of a court of record of this state may be punished by a fine large enough to recompense the state for any loss it may suffer, and large enough to deprive the offender of any profits he may hope to receive from his wrong. That this [223]*223power is a vast one, may be conceded; that its exercise may sometimes be necessary, is clear; and to guard against any wrongful exercise of this power by the lower courts, is the reviewing power of this court, and as to all courts the power of impeachment and the severe review of public opinion. With these checks it would seem that the power, though vast, is safely lodged. All power is in a certain sense dangerous, but with an elective judiciary, a free press and the power of impeachment, the people can soon relieve themselves of a corrupt or partial judge. Power must reside somewhere— power to compel or restrain action, and the vast volume of the testimony of experience is that nobody is so safely trusted with power as the courts.
A second proposition of counsel is, the district court of Cowley county, the county in which these proceedings were had, had become adjourned by operation of law, and therefore that this entire proceeding was extrajudicial and void. The facts are these: This proceeding was commenced and trial had on the 17th day of May, and judgment rendered on the 18th. The 17th was the day fixed by law for the commencement of the term of the district court in Sedgwick county, and in fact both on the 17th and 18th, and at the times these proceedings were had, the district court of that county was in session, a judge pro tem. having been elected in the absence of the regular judge. It also appears that the district court of Cowley county, which had been in session for some time, was on the 13th adjourned over the 14th and 15th, and to the 17th, the day for the commencement of the Sedgwick county term.
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The opinion of the court was delivered by
Brewer, J.:
On the 17th of May, 1880, the judge of the thirteenth judicial district caused an attachment to be issued against D. A. Millington, the editor and publisher of the Winfield Courier, for contempt, on account of certain articles published in said paper. The same day, Millington was arrested, and after a hearing, adjudged guilty and fined two hundred dollars. This order and judgment have been brought to our consideration both by habeas corpus and appeal. They are challenged on various grounds, and said to be not only erroneous, but absolutely void. It is claimed that if said Millington were guilty of a contempt, the punishment imposed is one beyond the power of the court to impose, and therefore void. Again, it is urged that the court had become adjourned by operation of law, and that therefore this entire proceeding was extrajudicial and void. Further, that the articles complained of did not constitute a contempt, and had no tendency to obstruct the administration of justice. And still further, that the answer of said Millington fully exonerated him.
It is obvious that some of these matters are not open for consideration in the habeas corpus proceeding. For in that, only questions of power, and not questions of error, are before us.
[221]*221The first proposition is, that the district court has no power to impose a fine of $200 for contempt. This is claimed under §2 of ch. 28 of the Compiled Laws of 1879. That section reads as follows:
“The judges of the district courts, within their respective districts, shall have and exercise such power in vacation, or at chambers, as may be provided by law, and shall also have power in vacation to hear and determine motions to vacate or modify injunctions, discharge attachments, vacate orders of arrest, and to grant or vacate all necessary interlocutory orders, and to punish for contempt in open court, or at chambers, by fine not to exceed one hundred dollars, and imprisonment, or either, and to assign not exceeding one attorney to prisoners who may be unable to employ counsel.”
The argument is, that as the constitution provides that the district courts shall have such jurisdiction as may be provided by law, (Const., art. 3, § 6,) and that as this is the only section in which the power of the court or judge to punish for contempt is named, it includes all the power vested in a court or a judge in matters of contempt.
We do not agree with counsel in these views. The plain language of the section is a grant of power to the judge, and not to the court, and the constitution provides that the several justices and judges of the courts of record in this state shall have such jurisdiction at chambers as may be provided by law. (Const., art. 3, § 16.) The section all the way through grants power to the judge, and not to the court. It is true, it speaks of “contempt in open court or at chambers,” but it grants no power to the court; it simply provides what the judge may do in such cases. The prior section grants power to the court, and gives it “general original jurisdiction of all matters, both civil and criminal (not otherwise provided by law)”. It may be conceded that the language of § 2 is not altogether apt or happy, but as we construe it, it contains only a grant of power to the judge in vacation in pursuance of said § 16 of the constitution, and gives to him a power at chambers to punish for a contempt committed in open court. Such is the plain reading of the language; and when we [222]*222notice that the prior section grants power to the court, the obvious meaning of the language seems imperative. If it be contended that without this § 2 no power is in terms granted to the district court to punish for contempt, we reply that it is one of the prerogatives — one of the inherent powers of a court — that it may punish for disorderly conduct in the court room, resistance of process, or any interference with its proceedings which amounts to actual contempt. The statute in terms nowhere gives to this court, which is the final tribunal, the ultimate arbiter of all rights and disputes between litigants, the power to punish for contempt of its proceedings and orders. And yet, is it possible to suppose that this court may not punish for a disturbance in its court room, or for a resistance of its process ? (Bacon’s Abridgement, title, Courts; ex parte Robinson, 19 Wall. 505; Morrison v. McDonald, 8 Shep. 550; State v. Woodfin, 5 Ired. 199.) So far as judges of the district court acting in vacation or at chambers are concerned, the legislature has limited their powers, though even as to them, it has placed no limit on the term of imprisonment they may impose. Upon the power of justices of the peace, it has also placed a limitation. (Comp. Laws 1879, p.732, §199 and 200.) But as to courts of record, it has left their powers to punish for contempt free and open to all the necessities of the occasion. There are exceptions to this, as in the matter of disobedient witnesses, etc., but outside of the several named limitations, the power of courts of record to punish for actual contempt is left free to the actual necessities of the wrong. A poor farmer who resists the process of the court may be fully punished by a fine of one hundred dollars, but a railroad magnate who tries to rob the county or defies the process of the court, would laugh at such a fine. The legislature has wisely left the power of the court equal to the wrong attempted. Any resistance of the power or process of a court of record of this state may be punished by a fine large enough to recompense the state for any loss it may suffer, and large enough to deprive the offender of any profits he may hope to receive from his wrong. That this [223]*223power is a vast one, may be conceded; that its exercise may sometimes be necessary, is clear; and to guard against any wrongful exercise of this power by the lower courts, is the reviewing power of this court, and as to all courts the power of impeachment and the severe review of public opinion. With these checks it would seem that the power, though vast, is safely lodged. All power is in a certain sense dangerous, but with an elective judiciary, a free press and the power of impeachment, the people can soon relieve themselves of a corrupt or partial judge. Power must reside somewhere— power to compel or restrain action, and the vast volume of the testimony of experience is that nobody is so safely trusted with power as the courts.
A second proposition of counsel is, the district court of Cowley county, the county in which these proceedings were had, had become adjourned by operation of law, and therefore that this entire proceeding was extrajudicial and void. The facts are these: This proceeding was commenced and trial had on the 17th day of May, and judgment rendered on the 18th. The 17th was the day fixed by law for the commencement of the term of the district court in Sedgwick county, and in fact both on the 17th and 18th, and at the times these proceedings were had, the district court of that county was in session, a judge pro tem. having been elected in the absence of the regular judge. It also appears that the district court of Cowley county, which had been in session for some time, was on the 13th adjourned over the 14th and 15th, and to the 17th, the day for the commencement of the Sedgwick county term. Now upon these facts it is contended that two terms of the district court cannot be held in the same district on the same day, and that as the 17th was the day fixed by law for the commencement of the Sedgwick county court, the adjournment of the Cowley county court to that day was virtually an adjournment sine die; or at least, that the Cowley county court could not be held upon that day, or until some adjournment had been made of the Sedgwick county court. In the case of The State v. Montgomery, 8 Kas. 358, it [224]*224was decided that the district court could adjourn the term in one county to a day subsequent to that fixed by law for the commencement of the regular term in another county of the same district. But this presents a very different question: Here we find the district court, which by the constitution has but one regular judge, being held in two counties by two judges. If this be proper, then in every county in the district, court may be held continuously, presided over in all ■but one by judges pro tem. This might have one advantage in preventing an accumulation of business, but it is against the spirit of the constitution. That organic law of the-state provides for one district judge in each judicial district, to be elected by the people of the district. (Const., art. 3, § 5.) Clearly, the idea is that this single elected judge is the sole responsible judicial officer for the district court of the entire district. "Whatever provision exists for judges pro tem., is not for the purpose of duplicating or increasing the judicial force, but to preserve a continuous though single force. They act for and in the absence, .sickness, or disqualification of the •elected judge. “The general principle is that the judiciary .are elective.” (The State, ex rel., v. Cobb, 2 Kas. 53.) Litigants are entitled to have this principle recognized and ■enforced. The commencement of .a term is a legislative command to the elected judge to be present and discharge the judicial duties devolving upon him in that county. It operates as a suspension of his duties in all other counties in -his district, and suspends, or closes, the terms in those counties. The legislature provides for terms, in order to secure his personal attention to the litigation in each county. It prescribes the commencement of each term, leaving the time ■of closing to the discretion of the judge acting upon the • necessities of business. It does not leave the commencement to his discretion, because it intends that each county shall have the benefit of his presence and labors at a certain and known time. The people of the entire district elect the judge. Each county is entitled to the benefit of his learning and experience. And the legislature by terms names the [225]*225time of his attendance. Impliedly, thereby commanding him to attend in one county, it equally commands him to leave all the others. The case of Grable v. The State, 2 G. Greene, 559, is strongly in point. Under similar provisions, the supreme court of Iowa there held that the term in one county was closed on the day the term was by law to commence in another. It says: “From the constitution of our judicial system, it is apparent that the court cannot be held in two counties in the same district on the same day, and by one and the same judge.” So we say here, there is but one district court and one district judge in a district. The officer is not to be duplicated, and when a term commences in one county, the court everywhere else in the district is closed, or suspended. A judge pro tern, is only a substitute, and never a -duplicate.
It follows from these considerations that the adjournment of the Cowley court to the 17th was void, and the proceedings on the 17th and 18th in that county were extrajudicial and void. There was no court then in session in that county. Habeas corpus will lie in such a case, and the petitioner is entitled to a discharge. Such is the order which must be entered in this case; and in the appeal, the order will be, that the judgment apparently rendered in court-time will be reversed, and the appellant discharged. The same order will be entered in the two cases of William Allison. Under these circumstances, it is unnecessary and probably improper for us to consider the other questions presented and discussed by counsel.
All the Justices concurring.