the rule as an entirety, not to separate portions of the rule which is process, if not, as here used, also as pleading. See Continental Nat. Bldg. & L. Asso. v. Scott, 40 Fla. 386, 24 So. 473, as to appropriate procedure.

Constitutional

courts.

The Constitution (art. 5, § 1) vests "the judicial power of the state" in designated tribunals and judges, and such law-creation of tribunals and judicial officers are by the law protected from insult and interference, for the purpose of giving them their due weight and authority in performing their judicial functions in the interest of orderly government.

Respect for courts and judicial officers in the performance of their judicial functions, or in matters that are incident to administering right and justice, naturally arises in the human mind from an appreciation of the delicacy and importance of the power exercised by courts and judges, and by the becoming manner in which the functions are performed by those intrusted with the power.

An efficient, upright, painstaking, and impartial judiciary, by its own inherent influence for good, necessarily deserves, and should be spontaneously accorded, respect and moral support by all persons. Experience teaches that as a rule the courts and judicial officers are respected and deferred to in approximate proportion to the propriety of judicial conduct and the efficiency of the performance of judicial functions. As a consequence, it is seldom that complaint is made of infractions by individuals of established or generally recognized rules of conduct towards courts and judges with reference to judicial functions. See People ex rel. Connor v. Stapleton, 18 Colo. 568, 23 L.R.A. 787, 33 Pac. 167.

But, as all persons do not at all times appreciate or recognize their obligations of respect for the tribunals that are established by gov

herent power by due course of law to appropriately punish, by fine or imprisonment or otherwise, any conduct that in law constitutes an offense against the authority and dignity of a court or judicial officer in the performance of judicial functions. And appropriate punishment may be imposed by the court or judge whose authority or dignity has been unlawfully assailed. See Re Hayes, 72 Fla. 558, L.R.A.1917D, 192, 73 So. 362, Ann. Cas. 1918B, 936.

An offense against the authority or the dignity of a court or of a judicial officer, when acting judicially, is called contempt of court, a species of criminal conduct. Contempts may be direct or indirect or constructive, or criminal or civil, according to their essential nature. Gompers v. Bucks Stove & Range Co. 221 U. S. 418, 55 L. ed. 797, 34 L.R.A. (N.S.) 874, 31 Sup. Ct. Rep. 492. Contempts of court are committed against courts and judicial officers who are vested with a portion of "the judicial power of the state,' state," when judicial functions are interfered with or impugned by the contemptuous acts or conduct. A "direct contempt" is an insult committed in the pres- words and ence of the court or phrases "direct of a judge when contempt." acting as such, or a resistance to, or an interference with, the lawful authority of the court or judge in his presence, or improper conduct so near to the court or judge acting judicially as to interrupt or hinder judicial proceedings. This species of contempt may be punished at once and summarily by the court that is offended, in order to maintain its authority and dignity, but the punishment must be appropriate to the offense and not excessive. An "indirect" or "constructive

contempt" is an act done not in the

-"constructive contempt."

presence of a court or of a judge acting judicially, but at a distance, under circumstances that reasonably tend to degrade the court or the judge as a judicial officer, or to obstruct, interrupt, prevent, or embarrass the administration of justice by the court or judge. See Ex parte McCown, 139 N. C. 95, 2 L.R.A. (N.S.) 603, 51 S. E. 957.

A "criminal contempt" is conduct that is directed against the authority and dignity of a court or of a judge acting judicially, as in unlawfully assailing or discrediting the authority or dignity of the court or judge, or in doing a duly forbidden act.

-"criminal contempt."

A "civil contempt" consists in failing to do something ordered to be done by a court or judge in a civil case for the benefit of the opposing party therein. 6 R. C. L. p. 490; 13 C. J. 5.

-"civil contempt."

Contempts not committed in the presence of the court or judge acting judicially are usually prosecuted by means of appropriate procedure, affording a proper hearing before an adjudication of contempt.

In a prosecution for a criminal contempt, whether direct or indirect or constructive, the purpose is not to avenge a personal affront, but to appropriately punish for an assault or an aspersion upon the authority and dignity of the court or judge. The proceedings may be summary, if predicated upon a sufficient charge and due course of law is observed and constitutional rights are not violated in the hearing, and the imposed penalty is appropriate to vindicate the authority and dignity of the court or judge, and is not excessive or unlawful in its nature or extent.

When a court has adjudged an imprisonment for contempt of court, a superior court may, in ap

Habeas corpusfor contempt.

propriate habeas corpus proceedings, test the validity of the imprison- imprisonment ment by determining whether the court that imposed the sentence of imprisonment had jurisdiction of the person, had authority to render such a sentence, and had a proper predicate for its sentence in the charge and the proofs or admissions duly adduced before the sentence. See Ex parte Turner, 73 Fla. 360, L.R.A.1917D, 355, 74 So. 314.

If a person is illegally adjudged and imprisoned for contempt of court and the penalty imposed does not violate fundamental rights, he will not be discharged from such when prisoner imprisonment

on

discharged.

habeas corpus; but, if the matters complained of in the contempt proceeding do not in law constitute contempt of court, an adjudication that they do constitute contempt does not make it contempt, and relief from imprisonment for matters not amounting to contempt may be had by habeas corpus. Ex parte Senior, 37 Fla. 1, 32 L.R.A. 133, 19 So. 652.

The power of the court in habeas corpus proceedings to determine the validity of an imprisonment for contempt of court

er of court.

is not to test di- extent of powvergent contentions

as to the weight of the evidence adduced in proceedings to punish as for a criminal contempt of court, when the hearing of conflicting evidence is appropriate, but the function of the court in habeas corpus is simply to consider the legal question whether the evidentiary facts found by the court in adjudging the contempt had any reasonable tendency to sustain the action taken, based upon the finding by the court. The situation is controlled by the reasonable tendencies of the acts done, and not by extreme or strained assumptions on the subject. The criterion is not the influence the conduct or acts complained

of may have had upon the mind of the particular judge, but the true test is the reasonable tendency of the conduct or the acts done to improperly influence or to embarrass or hamper the judicial action of a court. Having regard for the powers of the court in contempt proceedings, as well as to the protection of society and to the honest and fair administration of justice, and to the evils that flow from embarrassing or obstructing judicial processes, the contempt for which summary punishment may be imposed accrues alone from a reasonable tendency of the acts complained of to degrade the court or to embarrass or obstruct judicial action, without reference to the consideration of how far the acts may have had improper influence in a particular case. Toledo News

paper Co. v. United States, 247 U. S. 402, 62 L. ed. 1186, 38 Sup. Ct. Rep. 560.

Adverse comment or manifestations of personal disrespect, not made or published in the presence of, or so near to, the court or judge, and with reference to his judicial functions, as to embarrass or hinder or discredit judicial action to be taken by such court or judge, may not be contempt for which summary punishment by imprisonment may be inflicted.

Punishment for contempt of court is allowed to be imposed, not to satisfy an offended judge, but to vindicate the authority and dignity of the judicial office; and the penalty should have reference to the nature and enormity of the act complained of and to the wrong done to the court.

In the provision of § 2535, Revised General Statutes of 1920, that "nothing said or written, or published, in vacation, to or of any judge, or of any decision made by a judge, shall in any case be construed to be a contempt," the term "in vacation" has the meaning of the common law, which is, "that period of time between the end of one term of court and the beginning of

another." Black's Law Dict. 6; Jacob's Law Dict. 323. See Von Schmidt v. Widber, 99 Cal. 511, 34 Pac. 109; Conkling v. Ridgely Co. 112 Ill. 36, 54 Am. Rep. 204, 1 N. E. 261; Brayman v. Whitcomb, 134 Mass. 525. Where, under the statutes, a case may be heard and decided between terms of the court, the court may be regarded as in session for that case when it is being presented, or heard, or decided; and the analogies of common-law vacations between terms of court may be applied when the judge is not hearing or considering a case between terms of court. It is not necessary to discuss the constitutionality of the latter half of § 2535, Revised General Statutes of 1920, or to determine the extent, if any, that it has been modified by § 2531, Revised General Statutes of 1920.

In this case it does not appear that the circuit judge was actually engaged in hearing or considering the case referred to in the proceedings; but it is clear that, though the letter was received by the judge, the other acts complained of were not done in the presence of the judge, or so near as to interrupt judicial proceedings, and it is also clear that the letter and the acts complained of could not reasonably have tended to embarrass the judge in his judicial functions.

The letter purports to be "a communication from a judge of an inferior court to the judge of an appellate court," and, referring to a conviction in the case of Edward Antoles, says a writ of habeas corpus had been taken to review the conviction in the municipal court, of Antoles, who was released on bond by the circuit judge, and states that "it seems that Antoles had influential friends who have signed his bond, and he also has funds to secure counsel." Reference is made to other persons without funds who were convicted in the municipal court for like offenses, and it is stated that sentences in such cases will be deferred until the Antoles Case is disposed of on

habeas corpus by the circuit judge, and that: "I took the position, your Honor, that the law should apply equally to all men, and if Edward Antoles, self-confessed violator, as indicated by his plea of guilty, can obtain his freedom even for five days, others less fortunate who also plead guilty, but are unable through lack of funds to secure legal counsel, and are without influential friends, should have like consideration extended to them. As they are therefore unable to reach your court through lack of funds, and as judge of the municipal court, I have attempted justice and fairness towards them. As will be observed, this communication is not a brief on law, but a statement of facts."

This letter does not clearly reflect upon the circuit judge, but it is perhaps a mistaken effort to give the circuit judge "a statement of facts," illustrating the writer's desire to do justice in other cases that abide the result of a test case then before the circuit judge.

In his sworn answer, the writer of the letter "denies that, by or in said letter, he intended to imply that the court was induced to grant the writ of habeas corpus by the wealth of Antelo or his friends, or that he charged in any way that the court was by that corrupt influence induced to grant said writ of habeas corpus.

In 4 Bl. Com. p. 287, referring to the common-law procedure in contempt cases, it is said: "If the party can clear himself upon oath, he is discharged." As the letter is not clearly contemptuous, the oath of the respondent denying the allegations was entitled to due weight in determining the appropriate order to be made in the premises.

One allegation in the rule is that the respondent stated to others, to whom he is alleged to have published the letter he had written to the circuit judge, that "the Knights of Columbus were behind Antoles in his effort to obtain freedom, and. were using their influence with the

court to influence the court that, by the influence so brought to bear, the court was forced to grant the writ of habeas corpus upon the petition presented to him in said case." This allegation was not supported by the affidavit of anyone having personal knowledge of the alleged fact, as the law requires. 4 Bl. Com. p. 286.

The respondent in his sworn answer denies that he exhibited copies of the letter to others and denies that he "stated to them that Davis had granted a writ of habeas corpus to Edward Antoles because of corrupt influence brought to bear upon him, the said Judge Davis."

In the order adjudicating the respondent to be "guilty of contempt of the court," the judge makes a finding that "the allegations set forth in the rule nisi. . . have been proved and substantiated by the evidence and admitted by the respondent." This is not a finding that the respondent admitted to be true any one of the material specified charges contained in the rule that the respondent had denied in his sworn answer. The charge in this case and the findings are essentially different from those in Re Savin, 131 U. S. 267, 33 L. ed. 150, 9 Sup. Ct. Rep. 699.

charge on oath.

At common law, "if the party can clear himself upon oath, he is dis- Contempt-discharged, but, if perjured, may be prosecuted for the perjury." 4 Bl. Com. 287; Re Verdon, 89 N. J. L. 16, 97 Atl. 783.

In proceedings for alleged constructive contempts, except, perhaps, where they are to enforce a civil remedy, if the -effect of full party charged fully answer to answers all the charges. charges against him, he shall be discharged, and the court cannot, after that, hear evidence to impeach or contradict him. State v. Earl, 41 Ind. 464; Re Walker, 82 N. C. 95; Underwood's Case, 2 Humph. 46.

It appears from the cited authorities that by the common law, which

1

is applicable here, when the respondent denied under oath the allegation contained in the rule nisi that he stated to others that the court was forced to grant the writ of habeas corpus to Antoles by influence brought to bear on the court by the Knights of Columbus, the respondent should have been discharged. If he violated his oath in denying the charge, the remedy was a criminal prosecution, not summary imprisonment, as for a contempt, from which he endeavored by oath to absolve himself. 4 Bl. Com. p. 287.

While it is apparent that an indiscretion was committed by the municipal judge, the petitioner here, in writing and sending the letter to the circuit judge who had appellate jurisdiction of the cases referred to in the letter, yet a perusal of the letter does not convey the impression that it was "intended as a reflection upon the court," as is charged in the rule. Nor does it appear from the letter or by its publication to others that it "was written for the purpose of embarrassing and influencing" the judge "in the disposition of" the Antelo Case, specifically referred to. And, having regard for the ordinary firmness of character a circuit judge is supposed to have, the statements found to have been made by the petitioner to persons to whom petitioner exhibited the letter he had written to the circuit judge, though reflecting upon the judge, do not warrant imprisonment for contempt after the denials under oath, even if such statements have a real tendency "to embarrass the court in the administration of justice" or "to influence the decision of the court in the case then pending." This being so, the finding of the judge that

"the letter and threats and insinua

even though such acts did in fact affect the judge as he holds they did, the controlling considerations being the natural tendencies of the acts, and the course to be pursued upon denials under oath. 4 Bl. Com. 287; Re Verdon, 89 N. J. L. 16, 97 Atl. 783.

The acts found to have been committed in publishing the letter to others, with the statements made, were not done in the presence of the judge, or so near to his presence or to judicial proceedings and under circumstances that could reasonably have affected the fortitude of the judicial mind, or to have interfered with or hindered or embarrassed the judge in disposing of the case then pending before him. The judge did in fact dispose of the case in due course within his judicial authority. This shows the judicial functions were not impeded. The adjudication of imprisonment as for a criminal contempt, after the -denial under oath of the charges as made, was not authorized by the rules of the common law. This makes the detention illegal, and a discharge from imprisonment may be had on habeas corpus.

The petitioner will be discharged. Taylor, Ch. J., and Browne and West, JJ., concur. Ellis, J., dissents.

In general.

As is indicated in the opinion in the reported case (EX PARTE EARMAN,

ante, 1226), letters or other written communications sent through the mail to a judge necessarily seem to fall