State v. Magee Pub. Co.

OPINION OP THE COURT.

BRATTON, J.

For. the sake of convenience and clarity, we shall refer to the appellants as the defendants and to the appellee as the state.

The defendant Carl C. Magee was indicted, tried, and convicted in the district court of San Miguel county of the offense of criminal libel. While that ease was pending against him, he was editor and manager and in control of a daily newspaper of general circulation throughout the state, published at Albuquerque, known as and called “New Mexico State Tribune,” which was then owned by the defendant Magee Publishing Company, a corporation. During the pendency of that case, the defendant Magee wrote and signed certain articles which were printed, published, and circulated in the said New Mexico State Tribune, wherein various phases of such libel case were discussed and great criticism directed against the presiding judge of the Fourth judicial district, which includes San Miguel county. Shortly theerafter the informations in the four cases now before us were filed by the state, acting through the district attorney of that district, charging that the defendants had thereby committed contempt of court. They were tried and convicted in each case. The defendant Magee was sentenced to serve terms in jail aggregating one year and to pay nominal fines. Fines aggregating #4,050 were imposed upon the defendant Magee Publishing Company. Both defendants prayed and were granted appeals from such convictions and sentences. After such appeals bad been granted and before the time required by law to perfect them bad expired, the Governor granted to each defendant full and complete pardons in each and all of the cases, on account of which no further steps were taken to perfect such appeals. After the return day of such appeals bad expired, the state, through said district attorney, joined by private counsel, presented skeleton transcripts in each of these eases and moved that they be docketed and affirmed. We granted the motions in so far as they prayed that the cases be docketed. the defendants thereupon appeared, and now resist the affirmance of the judgments, contending that by virtue of such pardons they are relieved and absolved from all liability to serve the jail sentence or to pay the fines imposed upon them. the district attorney and counsel associated with him, on the other band, vigorously assert that such pardons are void because the .Governor has no power to pardon for contempt of court.

After the issue bad been thus formed, the Attorney General interposed a motion in each case to dismiss. Several grounds were assigned, among others, that the Governor bad the power to pardon the defendants;'that the pardons are valid- and hence the state cannot further maintain the prosecution. As this went to the life of the cases and involved the vital questions being litigated, we took such motions under advisement to be determined along with the cases upon their merits.

Tbe four cases were briefed and submitted by counsel in consolidated form, and as tbe questions involved in all of them are identical, we will decide them in tbe same manner.

The power of courts to punish for contempts is inherent. Its existence is essential to tbe preservation of order in judicial proceedings and to the enforcement of obedience to their writs, orders, and mandates, and consequently to tbe due administration of justice. The exercise of this power is as old as tbe English history itself and bas always been regarded as a necessary incident and attribute of courts. Being a common-law power, inherent in all courts, the moment the courts of the United States were called into existence they became vested with it. It is a power coming to us from the common law and, so far as we know, has been universally admitted and recognized. 4 (Lewis) Black. Com. § 286, p. 1675; Oswald on Contempt (Canadian Ed.) pp. 1-3; 6 R. C. L. 489; State v. Morrill, 16 Ark. 390; State ex rel. Rodd v. Verage, 177 Wis. 295, 187 N. W. 830, 23 A. L. R. 491; and People ex rel. Brundage v. Peters, 305 Ill. 223, 137 N. E. 118, 26 A. L. R. 16. A splendid review of the origin and history of such power, supported by a wealth of authority, as well as its universal recognition, both at common law and in the United States, may be found in State v. Shepard, 177 Mo. 205, 76 S. W. 79, 99 Am. St. Rep. 624, to which the bar is referred.

Such contempts are divided into two classes, civil and criminal, and it naturally becomes necessary for us to determine at the outset into which class these cases fall. Much has been said by distinguished jurists concerning the distinction between the two, and many rules for such determination have been evolved, from which it appears that the line of demarcation is often and frequently narrow, shadowy, indistinct, and difficult to ascertain, with the result that it is not always easy to classify a particular act as belonging to either one of the two classes. In fact, it may sometimes partake of the characteristics of both. Without launching into any prolix discussion upon the subject, or attempting to resort to any superfine distinctions, we think it may be said generally that “civil contempt” includes all those proceedings in the nature of contempt, instituted to preserve and enforce the rights of private parties to suits, and to compel obedience to the orders, writs, mandates, and decrees which are made to enforce the rights as well as to administer the remedies to which such parties are entitled; the offense is committed when a person fails or refuses to do something which he has been ordered to do for the benefit of an opposite party litigant, the punishment for which is imposed to coerce the performance of such act. Such punishment is remedial in character and is for the protection of the party whose rights have been violated. Such orders and commitments are made and issued for the sole purpose of committing the offender until he yields obedience to the order which he has violated, while “criminal contempt” embraces all acts committed against the majesty of the law, or, to clothe the thought in other language, is may be said to include those acts done in disrespect of the court, or which obstruct the due and proper administration of justice, or which tend to bring the court into disrepute in the form of public opinion. It has been said that the term implies an offense against organized society. Costilla Land & Inv. Co. v. Allen et al., 15 N. M. 528, 110 Pac. 847; In re Nevitt, 117 Fed. 448, 54 C. C. A. 622; Clay v. Waters, 178 Fed. 385, 101 C. C. A. 645, 21 Ann. Cas. 897; Bessette v. Conkey Co., 194 U. S. 324, 24 Sup. Ct. 665, 48 L. Ed. 997; Gompers v. Buck’s Stove & Range Co., 221 U. S. 418, 31 Sup. Ct. 492, 55 L. Ed. 797, 34 L. R. A. (N. S.) 874; Ex parte Gudenoge, 2 Okl. Cr. 110, 100 Pac. 39; Flathers v. State, 7 Okl. Cr. 668, 125 Pac. 902; Burnett et al. v. State, 8 Okl. Cr. 639, 129 Pac. 1110, 47 L. R. A. (N. S.) 1175; Ex parte Mettler, 50 Mont 299, 146 Pac. 747; State ex rel. Hammer v. Downing, 40 Or. 309, 58 Pac. 863, 66 Pac. 917; Red River Potato Grower’s Ass’n v. Bernardy et al., 128 Minn. 153, 150 N. W. 383; Staley v. South Jersey Realty Co., 83 N. J. Eq. 300, 90 Atl. 1042, L. R. A. 1917B, 113, Ann. Cas. 1916B, 955; People ex rel. Brundage v. Peters, 305 Ill. 223, 137 N. E. 118, 26 A. L. R. 16, and Van Dyke et al. v. Superior Court et al., 24 Ariz. 508, 211 Pac. 576.

With these distinctive features in mind, it becomes easy to classify the acts charged in the information in each of these cases, as they are free from those conditions which frequently present so much difficulty. No order bas been made by tbe court directing or commanding the defendants, or either of them, to do or refrain from doing anything; they had violated no writ, mandate, or decree; the rights of no opposite party litigant had been overridden; the object or purpose of the punishment imposed was 'not to coerce performance of any act, or to compel them to yield obedience to any command whatsoever, but was solely punitive in character for the purpose of vindicating the majesty of the law and to bring about respect for the court. They were, therefore, clearly criminal contempts.

With this preliminary question disposed of, and having determined that the information, charged the defendants with criminal contempt, we approach the decisive question in the case, namely, does a conviction and punishment upon such a charge come within the pardoning power of the Governor? We shall enter our investigation and consideration, and reach our conclusion, mindful of the delicacy of the question presented and with a due appreciation of the deference which each of the three co-ordinate departments of our government — the Executive, the Legislative and the Judiciary — owes to the other. While each department is supreme within its own field of action, it should be always considerate of and loath to criticise or endeavor to interfere with either of the other two.

A review of the source of the pardoning power, as well as its origin and history, reveals that at common law it was vested in the king; it was one of the rights, attributes, and prerogatives of the crown. The king in' his coronation oath obligated himself in this language: “That he will cause justice to be executed in mercy.” 4 Black. Com. § 396; 20 R. C. L. Pardon, §§ 5, 24; Ex parte Wells, 18 How. 307, 15 L. Ed. 421; Ex parte Bustillos, 26 N. M. 450, 194 Pac. 886. Such power, howrever, was not unrestricted at common law, as certain statutes were enacted throwing regulations, limitations, and restrictions around its exercise. 4 Black. Com. § 399; Ex parte Wells, supra.

the same consideration wbicb evoked the exercise of tbis power in England caused the United States, as well as most, if not all, of the states of the Union, to vest the same power in some branch of its government. In the United States it is vested in the President. Article 2, U. S. Constitution. Most of the states bave, by constitutional provisions, conferred it upon the Governor, as the bead of the executive department is generally believed by the American people to be usually so self-restrained, so conscious of and imbued with the responsibilities of bis high office, that the power so vested will be rightly, discreetly, and properly used, free from abuse, and exercised solely in the best interest of the entire people of the state, to the exclusion of all improper, sordid, or ulterior motives. Ex parte Bustillos, supra. Tbis power is granted to the Governor of this state by section G of article 5 of the Constitution, which provides:

“Subject to such regulations as may be prescribed by law, the Governor shall have power to grant reprieves and pardons, after conviction for all offenses except treason and In case of impeachment.”

Such constitutional provision constitutes a plain and clear grant of power to grant pardons, after conviction, except in eases of treason and impeachment. Save for these, the Governor has the undeniable power to grant pardons, after conviction, for all offenses. It remains, therefore, to determine whether criminal contempt is an offense within the purview of this constitutional provision. We may, with profit, remind ourselves that at common law criminal contempt was an offense punishable in a summary proceeding (4 [Lewis] Black. Com. chapter 30), and, being an offense, was pardonable at the bands of the king (4 Black. Com., chapter 31). the texts, with little in harmony, agree that it is an offense, and, as such, comes within the pardoning power of the Governor under constitutional provisions quite similar to ours.

In 13 C. J. “Contempt,” § 154, it is said:

“Since punishment for contempt of court is not inflicted out of any personal consideration for the judge, but only to uphold the authority and dignity of the law, an order of the judge inflicting punishment for contempt is within the' range of the pardoning prerogatives vested in the executive, and it has been held that the pardoning power of the President extends to cases of contempt; but it has also been held that the pardoning power of the President extends to cases of contempt; but it has also been held that the pardoning power of the President does not extend to punishment inflicted to compel obedience to an order of court made in a civil suit for the benefit of one of the parties to the suit.”

And in 20 R. C. L. 537, this rule is tiras declared:

“That the offense arising from a contempt of the authority of a court is one which, from its nature, should be summarily punished, to the end that an efficient and wholesome exercise of judicial powers may be had, no one will Question. But a contempt of court is an offense against the state and not an offense against the judge personally, in such a case the state is the offended party, and it belongs to the state, acting through another department of its government, to pardon or not to pardon, at its discretion, the offender. And the generally accepted rule is that the pardoning power extends to cases of imprisonment for contempt of court.”

Mr. McClain, in volume 1 of his work on Criminal Law, at page 11, says:

“Courts have power to punish as contempts any interference with their proceedings or resistance of their authority. This is a power inherent in courts of superior juisdiction and essential to their existence. It is not simply an incident to the exercise of judicial functions, but is the highest exercise of judicial power. Contempts are sometimes spoken of as criminal when they involve .interference with the action of the court, and civil, when they are an injury to a private party by reason of the violation of some order or proceeding of the court to protect his rights. Criminal contempts may be punishable by fine and imprisonment, even though imprisonment for debt is prohibited. In such cases there is no constitutional right to jury trial, or to be confronted by the witnesses against him, but the defendant may be relieved from punishment by executive pardon, as in case of conviction for crime. The procedure is governed by the analogies of a criminal prosecution, and it is said the imposition of a fine in such case is a judgment in a criminal case.”

To the same effect are 1 Bishop, Crimin. Law, p. 555, and Rapalje on Contempt, § 162.

These texts, all of which are standard authorities, are founded upon a limited number of decisions, wbicb we will consider. the first case to arise in any of the states involving tbis question was Ex parte Hickey, 4 Smedes & M. (Miss.) 751. the facts there were quite similar to those involved here. There the relator was editor of a certain newspaper in which be printed, published, and circulated an article wherein the acts and conduct of the presiding judge of the court then in session, with reference to a certain murder case pending in said court, were discussed and criticized. He was convicted of criminal contempt and sentenced to serve a term of five months in jail and to pay a fine of $500. He received a pardon and was released from custody. Thereupon the court issued a bench warrant upon which he was again taken into custody, and immediately thereafter sought a writ of habeas corpus from the Supreme Court. The sole question involved and decided concerned the validity of the pardon. The Constitution of the state of Mississippi (Const. 1832, art. 5, § 10) bestowed upon the Governor the “power to grant reprieves and pardons, and to remit fines in all criminal and penal cases, except in those of treason and impeachment.”

The court there held that wrongs are of two classes, public and private. That private wrongs are those which infringe upon the rights of individuals in their individual capacity, and that pubic wrongs are those which violate the rights which the 'individual owes to the entire community, when considered as a social entity. After declaring this distinction between the two classes of wrongs, it was held that criminal contempt came within the latter and that it was a crime within the contemplation of the constitutional provision quoted, and hence within the range of the pardoning power. It was further pointed out that’it differed from the ordinary criminal case, in that no jury trial was guaranteed, but it was nevertheless of that degree of public wrong as to fall within the pardoning power granted by the Constitution. It was said in that case:

“But it has been insisted by counsel that contempts of court do not come under the class of criminal or penal cases. The attachment which issues upon the information of a contempt is a criminal process. 1 Tidd, Prac. 401. 4 Bla. Comm. 231, calls the offense 'a criminal charge.’ ‘A crime, or misdemeanor, is an act committed, or omitted, in violation of a public law, either forbidding or commanding- it.’ 4 Bla. Comm. 5. The distinction of public wrongs from private, of crimes and misdemeanors from civil injuries, seems principally to consist in this, that private wrongs or civil injuries are an infringement or privation of the civil rights which belong- to individuals, considered merely as individuals, public wrong-s, or crimes and misdemeanors, are a breach and violation of public rights and duties, due to the whole community, considered as a community in its social, aggregate capacity. Ib. 6 Con-tempts of court are treated by all elementary writers as public wrongs. They are distinguished from ordinary crimes or misdemeanors, because in their punishment there is no intervention of a jury, the party being acquitted or condemned by the suffrage of such person only as the statute has appointed for his judge. Ib. 279, tit. Summary Conviction. In short, the whole doctrine of con-tempts goes to the point that the offense is a wrong to the public, npt to the person of the functionary to whom it is offered, considered merely as an individual. It follows then, that the contempts of court are either crimes or misdemeanors in proportion to the aggaravation of the offense, and as such, are included within the pardoning power of this state.’;

The case is directly in point with reference to both the law and the facts. The constitutional provision which confers the pardoning power upon the Governor is, in effect, similar to the Constitution of this state, and the facts there involved were so nearly identical with those involved in the cases before us that the principles of law declared there are applicable here.

The next case which assumed to discuss and decide the right to pardon for contempt was State v. Sauvinet, 24 La. Ann. 119, 13 Am. Rep. 115. In that case a writ of .sequestration had issued whereby it was sought to recover from the possession of the relator Sauvinec a certain cash box with its contents which he declined to surrender in obedience to the commands of the writ. He was adjudged to be in contempt for which punishment was imposed. The Governor granted him a pardon, but tbe sheriff declined to release him, from custody, because said sheriff conceived that the pardoning power did not extend to such a case; whereupon he instituted proceedings in habaes. corpus to secure his liberty. The whole case revolved around the validity of such pardon, which depended upon the power of the Governor to pardon for contempt of court. A clear distinction between civil and criminal contempt is not drawn in the opinion in that case, but it is declared in general terms that contempt of court is an offense against the state and not against the judge of the court personally, and that the state, being the offended party, had the right to grant a remission of that offense by a pardon duly granted through another department of its government — the executive. The state contends such case is not authority here because it clearly appears that it involved civil contempt. As we have previously stated, the court did not seem to clearly distinguish between the two classes of contempts, and while it may be argued with great force that the facts involved in that case constituted civil contempt, it seems that the court did not so treat it, but, to the contrary, regarded it as criminal contempt. This appears from the following language to be found in the opinion:

“It is proper to add, that Lewis, the plaintiff in seques tration, has no interest or right of property in the punishment inflicted. It is no concern of his, but concerns the state alone; and the rule therefore, that when a private person (as an informer for example) has acquired a right of property in a penalty, the executive cannot pardon, can have no application to this case,”

In Sharp v. State, 102 Tenn. 9, 49 S. W. 752, 43 L. R. A. 788, 73 Am. St. Rep. 851, the relator had been adjudged guilty of contempt of court for endeavoring to influence the sheriff to summon certain persons to serve as jurors in a case in which the relator’s soil was being tried upon a charge of making false and fraudulent entries in the books of his employers. The relator secured from the Governor a pardon, which the presiding judge of the court refused to recognize upon tbe theory that tbe pardoning power did not exist in sncb a case. Tbe court held that sucb power did exist under section 6 of article 3 of tbe Constitution, wbicb vested tbe pardoning power in tbe Governor in this language:

“He shall have power to grant reprieves and pardons after conviction, except in cases of impeachment.”

No discussion will be found in that opinion concerning the distinction between civil and criminal contempt, but we think it indubitably appears that it was criminal rather than civil contempt. the action of the relator in attempting to influence the sheriff to summon certain persons to serve upon the jury was merely an act calculated to impede or obstruct the due administration of justice. It violated no order, mandate, or decree of the court. Neither did the relator fail or refuse to do something wbicb the court bad ordered or commanded him to do, and the punishment imposed was not to coerce compliance with any such order or mandate, nor to force him to yield obedience to any process of the court, but was purely punitive in character to prevent a reptition of such conduct. It was therefore clearly criminal contempt,' and was held by that court to come within the pardoning power under a constitutional provision almost identical with ours.

the provision of the Constitution of the United States wbicb vests the pardoning power in the President is quite similar to the provision contained in the Constitution of this state vesting such power in the Governor. It is in this language:

“He shall have power to grant reprieves and pardons for offenses against the United States, except in cases of impeachment,” Article 2, U. S. Constitution.

The only differences between tbe two are that under tbe Constitution of this state, sucb power can be exercised only after conviction, and treason is expected; whereas, sucb limitation and exception are not to be found in tbe Constitution of the United States.. Otherwise, the two provisions are identical. In re Mullee, 7 Blatchf. 23, Fed. Cas. No. 9911, the relator had been adjudged guilty of contempt for violating a writ of injunction, and had been fined therefor. After being confined for some time (in default of paying such fine), he presented to the court his petition seeking his release from custody. The court held that it was without power to release him; that such power was vested exclusively in the President to grant the same by pardon. It was expressly held that contempt of court is an offense within the terms of the constitutional provision quoted. The court said:

“A contempt of court is an offense against the United States. In the present case, there is a judgment judicially declaring the contempt an offense. In Ex parte Kearney (7 Wheaton [20 U. S.] 38, 43), the Supreme Court says: ‘When a court commits a party for a contempt, their adudication is a conviction, and their commitment in consequence is execution.’ After a conviction and a commitment for a contempt, the court has no more power to discharge or remit the sentence than it has in the case of a conviction and a commitment for any other crime or offense against the United States. And such has been the practical construction of the provision of the Constitution in regard to pardons. In the case of one Dixon, a fine was imposed upon him by the Circuit Court of the United States for the District of Mississippi, for a contempt of court. He applied to the President for a pardon. The Attorney General, Mr. Gilpin (3 Op. Attys. Gen. 622), decided that the pardoning power extended to such a case, and that the contempt was an offense within the language of the provision of the Constitution. I fully concur in this view; and it necessarily follows, thar, if the power of relieving from the sentence imposed on Mullee falls within the pardoning, power of the President, it is exclusive in the President, and cannot be exercised by this court.”

That Judge Blatchf or d regarded the case as one embracing criminal contempt is fully disclosed from his opinion. This language is to be found near its close.

“The contempt of court was an offense against the United States, and the fine was inflicted as a punishment therefor.”

Moreover, be cites witb approval, and in a large measure bases bis conclusion upon wbat is referred to as the Dixon Case (3 Op. Attys. Gen. 622), wherein Dixon was punished for contempt committed by an affray bad in the presence of the Circuit Court of the United States for the District of Mississippi, which was undeniable criminal contempt; and, we pause to suggest, the opinion further discloses that Justice McKinley, then associate justice of the United States whose circuit embraced the district of Mississippi, recommended the pardon at the bands of the President, This may be regarded as a reflection of the views entertained by Justice McKinley witb reference to the pardoning power in cases of that and this class. Before leaving the Mullee Case, it has been suggested that its force is weakened because Judge Blatcbford in the later case of Fisher v. Hayes (C. C.) 6 Fed. 63, abandoned bis original position. the most that can be said is that be receeded from the position that a violation of an injunction writ constituted criminal contempt. In the later ease, be regarded such facts as constituting civil contempt; but be never even intimated that be doubted bis position taken in the Mullee Case concerning the power of the President to pardon for criminal contempt.

While the opinions of the Attorney General of the United States are neither precedent nor controlling they may be considered as persuasive, especially upon a subject of this kind, which has been so infrequently decided by courts. It has been held in three different instances by Attorneys General of the United States that the President has the power, derived from the above-quoted constitutional provision, to pardon for criminal contempt. 3 Op. Attys. Gen. 622; 4 Op. Attys. Gen. 317; 4 Op. Attys. Gen 458.

Perhaps tbe strongest case construing this kind of charge is Gompers v. United States, 233 U. S. 604, 34 Sup. Ct. 693, 58 L. Ed. 1115, Ann. Cas. 1915D, 1044. In that case, tbe proceedings were in tbe nature of a criminal contempt to punish for past acts clone in violation of a writ of injunction, not to secure obedience in the future. The defendant pleaded the statute of limitations which is in this language:

“No person sliall be prosecuted, tried, or punished ior any offense, not capital, except as provided in section one thousand and forty-six, unless the indictment is found, or the information is instituted within three years next after such offense shall have been committed. But this act shall not have effect to authorize the prosecution, trial or punishment for any offense, barred by the provisions of existing' laws.” Rev. St. § 1044; 19 Stat. 32 (U. S. Comp. St. § 1708).

It is to be noted that the limitation applies io “offenses,” being the word used in the Constitution of the state governing the pardoning power. This fact, when considered in connection with the further fact that it is construed by the highest court of the land, makes the case of peculiar interest and of controlling force. It was argued that criminal con-tempts did not come within the purview of the statute because they were not offenses. The court expressly held otherwise, saying if they were not criminal we are in error as to the most fundamental characteristic of crimes as that word has been understood in the English speech. This pertinent language was there used:

“It Is urged in the first place that contempts cannot be crimes, because, although punishable by imprisonment and therefore, if crimes, infamous, they are not within the protection of the Constitution and the amendments giving a right to trial by ury, etc., to persons charged with such crimes. But the provisions of the Constitution are not mathematical formulas having their essence in their form; they are organic living institutions transplanted from English soil. Their significance is vital not formal; it is to be gathered not simply by taking the words and a dictionary, but by considering their • origin and the line of their growth. Robertson v. Baldwin, 165 U. S. 275, 281, 282. It does not follow that contempts of the class under consideration are not crimes, or rather, in the language of the statute, offenses, because trial by jury as it has been gradually worked out and fought out has been thought not to- extend to them as a matter of constitutional right. These contempts are infractions of the law, visited with punishment as such. If such acts are not criminal, we are in error as to the most fundamental characteristics of crimes as that word has been understood in English speech. So truly are they crimes that it seems to be proved that in the early law they were punished only by the usual criminal procedure, 3 Transactions of the Royal Historical Society, N. S. p. 147 (1885), and that at least in England it seems that they still may be and preferably are tried in that way.”

Later, and with particular reference to whether such proceedings came within the statute of limitations concerning ‘ ‘ offenses, ’ ’' the court said:

“Even if the statute does not cover the case by its express words, as we think it does, still, in dealing- with the punishment of crime a rule should be laid down, if not by Congress by this court.-”

We consider this case far more than persuasive— it is decisive. If criminal contempt is an “offense” within the statute of limitations of the United States, we cannot appreciate why it is not embraced within •the constitutional provision which vests the power in the government to pardon for “all offenses, except treason and in cases of impeachment.” How can it be said that it is an offense in one instance and not in the other?

Counsel for the state have strongly urged upon us the cases of Re Nevitt, 117 Fed. 448, 54 C. C. A. 662, and State ex rel. Rodd v. Verage, 177 Wis. 295, 187 N. W. 830, 23 A. L. R. 491, as two of the leading cases which deny the right to pardon. A casual reading of these demonstrates that in each instance the court determined that the facts set forth constituted civil contempt. All that is said with reference to the pardoning power in cases of criminal contempt Is purely dictum and was so regarded by the writers. This is particularly apparent from the language used by Judge Sanborn in the Nevitt Case:

“It is not, however, necessary to a decision of the application before us, nor is it our purpose, to here decide whether or not criminal contempts, contempts instituted solely for the purpose of vindicating the dignity ■of the courts, preserving their power, and punishing disobedience of their orders, fall within the pardoning power of the executive.”

It is equally apparent in State ex rel, Rodd v. Verage, by tbe use of this- language:

“This disposes of the case without reaching the question whether the Governor has power to pardon in criminal contempt cases; that is, where the punishment is inflicted for purely punitive purposes and to expiate the con-temner’s public offense. This is a very interesting question, and one to which we have devoted no little thought and consideration. It may be said to be an unsettled question in this country, as instances of its judicial consiedration are rare.”

What is said upon tbe subject is, therefore, neither precedent nor authority; at most, it can be considered in the nature of texts.

We have carefully considered the further case of Taylor v. Goodrich, 25 Tex. Civ. App. 109, 40 S. W. 515, which is strongly relied upon by counsel for the state. While the court expressly denied the power of the Governor to pardon for criminal contempt, we think the. conclusion reached was based upon the peculiarity of the constitutional and statutory provisions of that state which differ from the constitutional provision of this state which we now have under consideration. The Constitution of Texas vested the power in the Governor to pardon in all “criminal cases,” except treason and impeachment. Originally the common law with regard to crimes, where not abrogated by statute, was in force there. Grinder v. State, 2 Tex. 338. Later, and with the design of enacting into Code form eyery offense against the laws of that state, a complete system of penal laws was adopted with the sweeping provision that no person should be punished for any act or omission unless the same was made penal and a penalty affixed therefor in and by said Code. These statutory provisions are to be found in articles 1, 2, and 3 of the Penal Code of that state, which so provide thusly:

“The design of enacting this Code is to define in plain language every offense against the laws of this state, and affix to each offense its proper punishment.” Article 1.

“The object of punishment is to suppress crime and reform the offender.” Article 2.

“In order that' the system of penal law in force in this state may be complete within itself, and that no system of foreign laws, written or unwritten, may be appealed to, it is declared that no person shall be punished for any act or omission, unless the same is made a penal offense, and a penalty is affixed thereto by the written law of this state.’1 Article 3.

Since the enactment of such Penal Code, it -has been uniformly held in that state that no act constitutes a crime for which punishment may be imposed, unless expressly denounced by the terms of the Code and a penalty affixed therefor. In other words, no other law regarding crimes or offenses is known in that state. Scott v. State, 86 Tex. 321, 24 S. W. 789; Ex parte Ligenfelter, 64 Tex. Or. App. 130, 142 S. W. 555, Ann. Cas. 1914C, 765.

With this in view as the settled law of the state, the court held (in Taylor v. Goodrich), and rightly so, we think, that the term “criminal cases,” as used in the constitutional provision vesting the pardoning power in the Governor, meant and referred to those crimes provided for in the Criminal Code, and that criminal contempt was nowhere mentioned in such Code; hence an action to punish for such an offense was not a “criminal case.” We quote from the language adopted by that court in expressing its views which resulted in such conclusion:

“If the words ‘criminal case’ are confined to the crimes mentioned in the Penal Code and should be held to be construed only as the terms crime and offense are therein defined, there would be little difficulty in reaching a correct conclusion upon this question, for the question of contempt is not mentioned in the Penal Code and is not there characterized as a crime or offense. ~ * * And it is believed, as before stated that the term ‘criminal cases,’ as there used, was intended to be understood as meaning those cases and crimes provided for in the Criminal Code, for which a conviction must be had in the manner provided by law for the trial of criminal cases.”

This is not the rule here, and no such restrictions have been promulgated by statute or rule of decision. The common law of crimes is in force in this state, except where it may have been modified or repealed by statute, and the common-law procedure in criminal cases is in force, 'except where special provision is made by statute to the exclusion of the common law. Territory v. Montoya, 17 N. M. 122, 125 Pac. 622; Ex parte De Vore, 18 N. M. 246, 136 Pac. 47. For the reasons stated, the three cases cited and relied upon by the state cannot be considered as precedent or authority for its contention that the pardoning power does not extend to cases of this kind. Aside from them, we have been referred to no case, and we have been unable to find one which does sustain such contention. On the contrary, the weight of authority supports the contention of the appellants.

We pause here to give expression to one other thought which we have taken into consideration. It has occurred to us that if the word “offense,” as used in the Constitution, was intended to be limited to its narrow sense of embracing only strictly criminal or penal cases, in which the right to trial by jury, and to be confronted with the witnesses and many similar characteristics attending such criminal, or penal cases were guaranteed, impeachment would not have been expressly excepted from its terms. That is certainly not an ordinary or strict criminal proceeding. The charge is not presented by indictment or information. Trial by jury is not guaranteed. A conviction therefor is not followed by either fine or imprisonment. And yet it was deemed advisable to expressly except it from the operation of the constitutional provision in question, which clearly indicates that it was never thought or intended that the term “offenses” should be so limited; but that it should cover a wider field.

From all that has been said, we have reached the firm conclusion that criminal contempt is an offense arising from a contumacious act against the authority of the court and is not one against the presiding judge personally. In such an instance, the judge merely represents the sovereignty in the realm of its judicial department of government. the offense is therefore one against the community when considered as a social entity — it is one against the state, and the state, being the offended party, bas the power to extend grace or forgiveness. Tbat power is exercised tbrougb another department of the government, namely, the executive, and when be bas granted the same, the subject is freed and the incident closed. In the first instance the soverign state is represented by its judicial department, acting tbrougb the particular court against which the contumacy is directed, and in the second instance, by the executive department, acting tbrougb the Governor.

In our investigation of this case, which bas consumed no little of our time, patience, and research, we have given due consideration to the urgent contentions of counsel for the state tbat a construction of the Constitution giving to the Governor the right to pardon in this kind of cases will result in making the courts weak, ineffective, impotent, and vassal; tbat, while the executive department could not influence their actions and determinations, it could control their effect. In fact, all of the considerations suggested in the Nevitt, Rodd v. Verage, and Taylor v. Goodrich Cases, have been brought forward and pressed upon us with great zeal by counsel in their presentation of the ease upon behalf of the state,' and we have not minimized their effect. Neither have we failed to seriously consider the argument tbat this is not an offense by reason of numerous distinctive features, wherein it is different from the ordinary criminal case. Among others, it is suggested tbat a trial by jury is not guaranteed. This is completely answered by the Supreme Court of the United States in Gompers v. U. S., supra. Many other distinctions are suggested. None of them are more forcible. In response, it is trite to say tbat the power to pardon is not inherent in any official, board, or body. It is vested in the sovereign people, and they have the power to repose it in any official or body which they can deem wise and expedient. In this state, it has been vested in the Governor. The people, in the adoption of the Constitution, reposed it in that officer. With the wisdom of such action we are not concerned. Neither does the wisdom nor propriety of its exercise by that department of the state enter into the case. When we have determined that the power is vested in the Governor, our connection with the matter ceases, as courts exist for the purpose of construing and enforcing laws, not to make them.

We shall not further lengthen this opinion by added discussion. It is perhaps too long now. Before closing, we desire to say that counsel have carefully, thoroughly, painstakingly, and scientifically presented the various considerations entering into its decision, and we have been greatly assisted by their able arguments and briefs.

It follows that the motion of the state, acting through its district attorney and private counsel, in so far as they pray an affirmance of the several judgments, must be denied; and that the motion of the Attorney General praying that they be dismissed because the pardons were valid and effective, and barred any further prosecution, must be sustained, and the cases therefore dismissed. And it is so ordered.

BOTTS, J., concurs.