#### Thomas P. Clark, Plaintiff in Error, v. The People, &c., Defendant in Error.

ERROR TO ADAMS.

The power to punish for contempts is incident to all courts of justice, independent of statute, and the exercise of this power, resting in the sound discretion of the court, can not be reviewed by the supreme court.

If the magistrate acts maliciously or oppressively, our laws can punish him by indictment or impeachment.

Opinion of the Court by

Justice Smith.

This case is brought up to reverse the decision of the circuit court of Adams county, in dismissing the appeal from the justice of the peace for want of jurisdiction in the circuit court.

The single point presented by the case is, whether an appeal will lie to the circuit court to re-examine the decision of a justice of the peace in imposing a fine on a party for a contempt offered him while sitting as a justice of the peace, and acting in his official capacity ? It is contended in support of the grounds of error assigned by the plaintiff in error, that the appeal from the justice’s decision to the circuit court, is warranted by the statute authorizing the taking of appeals from their decision to the circuit court.* The 31st section of that statute is alone applicable, to proceedings in civil cases, and can not, therefore, embrace a case of the present character, which must be considered as partaking of a criminal nature ; nor is it given by the 7th section of the act extending the criminal jurisdiction of justices of the peace, passed in December, 1826† which is confined exclusively to the cases enumerated in that act. It is manifest that neither of the sections referred to give the right to an appeal in a case like the present.

There are other considerations which it may be proper to examine to show that the circuit court does not possess the power to review the decision of the magistrate, either by appeal or in any other form. By the 24th section of the “ act concerning justices of the peace and constables,”‡ it is provided “ that every person who shall appear before a justice of the peace, when acting as such, or who shall be present at any legal proceedings before a justice, shall demean himself in a decent, orderly and respectful manner, and for failing to do so, such person shall be fined by the justice for contempt in a *341sum not more than five dollars.” The fine imposed in this case was fixed at three dollars, but in what the contempt consisted does not appear, nor is it deemed material to inquire. It is not pretended that the magistrate has exceeded his powers in any way, nor that the contempt was not committed in his presence. The power, however, to punish for contempts, is an incident to all courts of justice independent of statutory provisions, and the power to enforce the observance of order, punish for contumacy by fine or imprisonment, are powers which may not be dispensed with, because they are necessary to the exercise of all others. The distinction that courts of inferior jurisdiction, not having a general power to fine and imprison for contempt, are restricted to such as are committed in their presence, will not alter the rule in the present case. The exercise of this power must necessarily rest in the sound discretion of the magistrate, and as such, is not the subject of review in the circuit court. To this point a train of numerous decisions may be found, but in a case where it is not pretended that the magistrate has exceeded the powers conferred on him by statute, it is not perceived why this principle should not be strictly applied. The reasoning, as to the possible abuse which might grow out of the exercise of the power to punish for contempts, if superior jurisdictions refuse to examine into the correctness of the decision of the magistrate, is readily met by the answer that if he acts maliciously or oppressively, our laws afford an adequate remedy by indictment. We are not, however, without authority on the very point in question, from a tribunal of the highest character in the country. In the case of Kearney, ex parte, 7 Wheaton, p. 88, the supreme court of the United States have said that “ they will not grant a habeas corpus where a party has been committed for a contempt by a court having competent jurisdiction ; and if granted they will not inquire into the sufficiency of the cause of commitment.” The magistrate having had competent jurisdiction to impose the fine, the circuit court properly refused to inquire into the nature of the contempt, and very properly dismissed the appeal. The judgment of the circuit court is therefore affirmed with costs, (a) , (1)

McConnel, for plaintiff in error.

Ford, state’s attorney, for defendant in error.

Judgment affirmed,.

*

Rev. Code of 1827, p. 268.

†

Rev. Code of 1827, p. 275.

‡

Rev. Code of 1837, p. 266.

(a)

The power of punishing contempts is an incident to courts of justice. Trial of Smith and Ogden, 73.

(1)

A writ of error may be sued out of the supreme court to reverse the decision *342of a circuit court, fining a person for contempt of court Stuart v. The People, 3 Scam., 395. In this case, Breese, J., speaking of the case of Clark v. The People, said: “ I do not think that case decisive of this, for the reason that there the contempt was committed in the presence of the justice of the peace, whilst trying a cause, and the statute gave him power to fine for contempt, in a sum not exceeding five dollars, in such a case, and he had not exceeded his jurisdiction, as the record shows. Besides, no law of the state allowed an appeal in such a case, partaking of a criminal nature, and it was properly dismissed.” And in Ex parte, Thatcher, 2 Gilm., 170, Scates, J., said : “It is indeed denied that any appeal or writ of error lies from its judgment for contempt by any court. I will not undertake to decide the general question, but the power has its limits. The court may not treat any and every act as a contempt, and. I have no doubt that the appellate court may revise and reverse its judgment when it exceeds its jurisdiction, by treating that as a contempt, which in law is no contempt, and can not be. The supervision will be to ascertain that fact.” In Crook et al. v. The People, 16 Ill., 536, the court said: “ In the examination of the merits of the remaining question raised in the assignment of errors, and argument, we would be understood as distinctly waiving any determination, whether a defendant, in a criminal information for contempt, can appeal or maintain a writ of error.” They also held that in such case a party was not entitled to a change of venue.

In Indiana it was held that courts of record have exclusive control over charges for contempt committed in such courts; and their conviction or acquittal is con elusive. State v. Tipton, 1 Blackf., 166. So in North Carolina. “There can be no revision, either by appeal or certiorari, of the judgment of a court of record for imposing a punishment for a contempt of the court, declared by the record to have been convicted in open court.” State v. Woodfin, 5 Iredell, 199, ib., 149. But if the court states the facts upon which it-proceeds, a revising tribunal may, on a habeas corpus discharge the party, if it appears that the facts do not amount to a contempt. Ib., 149.

The county commissioners' court had power to punish for contempt. Ex parte, Thatcher, 2 Gilm., 169.

A justice of the peace who has imposed a fine upon a person for contempt of his court, can imprison him until the fine and costs are paid. Brown v. The People, 19 Ill., 613.

Contempts of court are either direct, such as are offered to the court, while sitting as such, and in its presence, or constructive, being offered, not in its presence, but tending by their operation to obstruct and embarrass, or prevent, the due administration of justice. A newspaper publication that has not such effect will not be a contempt. Stuart v. The People, 3 Scam., 395.

The provision of the constitution of the United States, that the trial of all crimes shall be by jury, does not take away the right of courts to punish contempt in a summary manner. The provision is to be construed to relate only to those crimes which, by our former laws and customs had been tried by jury. Hollingsworth v. Duane, Wallace, 77, 106. 5 Iredell, 199.