#### STATE v. S. T. HOOKER.

(Filed 6 April, 1922.)

1. Appeal and Error — Habeas Corpus — Certiorari.

No appeal to tbe Supreme Court lie's upon tbe refusal of tbe judge, having jurisdiction, to release tbe petitioner in habeas corpus proceedings, except in cases concerning tbe care and custody of children, tbe remedy being by application for tbe writ of certiorari which lies in tbe discretion of tbe appellate court; and an appeal by tbe petitioner under sentence for contempt of court will ordinarily be dismissed. In this case, with tbe consent of tbe attorney-general, tbe court passes upon tbe appeal as if on certiorari..

2. Habeas Corpus — Statutes.

Tbe petitioner in habeas corpus proceedings adjudged in contempt of court shall, under tbe provisions of our statutes, be remanded when upon tbe bearing it is made to appear that be is held in custody by virtue of a process issued by a court or judge of tbe United States where such judge or court has exclusive jurisdiction; by virtue of a final judgment or decree of any competent court of civil or criminal jurisdiction or of any execution issued upon such judgment or decree; for any contempt, specially and plainly charged in the commitment by some court, officer or body having authority to commit for tbe contempt charged; that the time during which such party may be legally detained has not expired.

3. Habeas Corpus — Courts—Jurisdiction—Record.

Where the petitioner in habeas, corpus proceedings is held under a final sentence of a court, a commitment of contempt or other, tbe only questions open to inquiry at tbe bearing are whether on tbe record tbe court bad jurisdiction of the matter and whether on tbe facts disclosed in tbe record and under the law applicable to tbe case in band, the court has exceeded its powers in imposing tbe sentence whereof tbe petitioner complains.

4. Courts — Contempt of Court — Justices of the Peace — Habeas Corpus— Statutes.

While engaged in the trial of causes before him tbe mayor of a town, with jurisdiction of a justice of tbe peace, went just without the door of his office for a moment or two, and while there was insulted and vilely abused and threatened with attempted assault by the petitioner in habeas *764 corpus proceedings for having liad a warrant issued for the petitioner’s son under a criminal charge: Held, such acts and conduct of the petitioner constitute a direct contempt, authorizing punishment by imprisonment not to exceed thirty days or a fine not to exceed $250, or both, in the discretion of the court. O. S., 981.

5. Same — Constitutional Law — Inherent Powers.

The constitutional restriction imposed by the Constitution on the jurisdiction of justices of the peace to fines of $50 and imprisonment for thirty days, Article IV, see. 27, apply only to the administration of the law in the trial of criminal cases, and were not intended to affect the inherent or statutory powers possessed by these courts and conferred upon them as necessary to enable them to transact business and maintain a propep respect for their authority, and in this interpretation weight is given to a like interpretation of our statute giving such courts power to punish by imprisonment not exceeding thirty days or a fine not exceeding $250, or both, in the discretion of the court, it being the same given to the judges of the Superior Courts, and other courts of record, for like offenses. C. S., 981, 983.

6. Habeas Coi’pus — Legal Detention — Sentence—Valid in Part.

Where a prisoner is detained by virtue of a sentence in part valid, and part otherwise, he may not be liberated on habeas corpus until he shall have served the valid portion of his sentence, and he shall be remanded when it appears that the time during which he may legally be detained has not expired.

PetitioN for habeas corpus, In re S. T. IIooTcer, beard before Lyon, J bolding tbe courts of tbe Eiftb Judicial District, Fall Term, 1921, at tbe courthouse in Greenville, N. 0., on 12 September, 1921; from Pitt.

On said bearing it was made to appear tbat D. M. Clark, Esq., mayor of tbe town of Greenville and as sucli clotbed by statute witb tbe jurisdiction of a justice of tbe peace, on 12 September, 1921, was engaged in bearing causes in bis office in Greenville, N. C., and having disposed of one case and taken up another, for a moment stepped just outside of tbe back door to get bis spittoon, when be was approached and abused and assaulted by tbe petitioner on bis action as mayor in having issued a criminal warrant for petitioner’s son; tbat on rule and capias issued, said mayor adjudged said petitioner guilty of contempt of court, sentenced him to jail for thirty days and imposed a fine of $200, and petitioner was committed and held in custody under said judgment, when present proceedings were instituted.

In more direct reference to tbe occurrence, bis Honor, confirming tbe action of tbe mayor in this respect, finds tbe facts and conclusions of law as follows: “Tbat on tbe same morning tbat S. D. Hooker was put in tbe lock-up, to wit, 12 August, 1921, tbe mayor held court in bis private office for tbe disposition of two emergency cases; tbat be bad disposed of one ease, and was in tbe act of taking up and disposing of *765tbe second case when be stepped outside of bis back door to get a spittoon, be bad turned to go back into bis office when be was called by tbe respondent, S. T. Hooker, wbo at tbe time was in tbe rear of tbe office of J. 0. Lanier, be said in bis usual tone of voice, “Come bere a minute, Clark.” Tbe mayor took tbe respondent to be rational, and approached tbe respondent at a point witbin a few feet from bis office and in tbe rear of tbe office of J. C. Lanier, tbe two offices adjoining; be was met by tbe respondent, S. T. Hooker, S. D. Hooker, and J. 0. Lanier; tbe respondent faced tbe -mayor and commenced to accost him in a very angry, menacing, and threatening manner, asking tbe mayor, “What in tbe bell did you issue a warrant against my son, S. D. Hooker, for?” then and there denouncing tbe mayor, calling him a liar, a common street loafer, a leech upon tbe community, and a son-of-a-bitch, shoving him off with a push on tbe shoulder, at tbe same time opening a pocket knife, which be held behind him in a position ready to strike; the knife was taken from tbe respondent by a police officer, Stokes, wbo bad come out of the mayor’s office, attracted by tbe loud, abusive language of tbe respondent to tbe mayor.

Tbe mayor did not attempt to strike or resist tbe attack or the language of tbe respondent, using no loud, abusive, or profane words, simply saying, “I don’t care to have any argument. The matter can be settled in court.” Tbe mayor then walked back to bis office, tbe respondent following him, and continuing to abuse, slander, cursé, and denounce him.

“Tbe denunciatory and abusive language and tbe assault of tbe said S. T. Hooker was contemptuous and interfered with tbe mayor, and prevented him from tbe proper and lawful discharge of bis official duties, and was bad and done for tbe purpose of intimidating tbe mayor in tbe performance of bis duties in tbe trial of tbe said S. D. Hooker, and said conduct was committed while tbe court was actually sitting for tbe transaction of business.”

And upon these and other findings tbe court entered judgment as follows: “Upon tbe foregoing facts it is considered, ordered, and adjudged by tbe court that tbe acts and conduct of tbe respondent were contemptuous, and brought contumely and insult upon tbe court, and were committed in tbe presence of tbe court, and it is further considered and adjudged that tbe said S. T. Hooker was in contempt of said court.

“It is further ordered and adjudged that tbe findings of D. M. Clark, mayor, be and the same are hereby fully sustained, and it is ordered and adjudged that tbe said S. T. Hooker be and be is hereby adjudged to be in contempt of tbe court of D. M. Clark, mayor.

“It further appearing that tbe judgment of tbe court exceeded tbe jurisdiction of tbe mayor, in that be could only fine tbe said Hooker $50 *766or imprison, bim 30 days; it is, therefore, considered, ordered, and adjudged that this cause be remanded to tbe mayor of tbe town of Green-ville, to tbe end tbat judgment be entered herein pursuant to law, by said mayor, D. M. Clark.”

From which said judgment tbe petitioner appealed.

Attorney-General Manning and Assistant Attorney-General Nash for the State.

. J. G. Lanier and H. W. Whedbee for defendant.

Hoke, J.

Our decisions bold tbat except in cases concerning tbe care and custody of children no appeal lies from a judgment in habeas corpus proceedings, but tbe action of the judge must be reviewed, if at all, by writ of certiorari, which rests in tbe sound discretion of tbe appellate court. In re McCade, ante, 242, citing, among other authorities, In re Lee Croom, 175 N. C., 455; In re Holley, 154 N. C., 163.

Under these, and other decisions to like effect, this appeal, therefore, should be dismissed, but for the fact that the Attorney-General, waiving notice, has consented that the cause be heard and determined as on writ of certiorari, if such course meets the approval of the Court. The "Court having so determined and considered the cause in that aspect, it appears that the defendant has been found guilty of direct contempt of the mayor’s court of the city of Greenville, in violent abuse, and direct assault on the mayor while engaged in the administration of public justice and in the exercise of jurisdiction with which he is clothed. For such conduct he is held in custody under a sentence by the mayor, imposing imprisonment for thirty days and a fine of $200, and sues out this writ of habeas corpus to inquire and determine as to the legality of his detention.

It is held with us that the writ of habeas corpus cannot be made to serve the purpose of an appeal or writ of error. And our statute on the subject provides that on a hearing of this character the prisoner shall be remanded when it appears that he is held in custody:

1. By virtue of a process issued by a court or judge of the United States, in a case where such judge or court has exclusive jurisdiction.

2. By virtue of a final judgment or decree of any competent court of civil or criminal jurisdiction, or of any execution issued upon such judgment or decree.

3. For any contempt, specially and plainly charged in the commitment by some court, officer, or body having authority to commit for the contempt charged.

4. That the time during which such party may be legally detained has not expired.

*767And in tbe application and eonstrnction of these principles and tbe statutory provisions cited, it is tbe accepted position that where one is held under a final sentence of a court, a commitment of contempt or other, the only questions open to inquiry are whether on the record the court had jurisdiction of the matter, and whether on the facts disclosed in the record and under the law applicable to the case in hand, the court has exceeded its powers in imposing the sentence complained of. In re Lee Groom, 175 N. C., 455; In re Holley, supra.

Speaking to the question in Holley’s case, supra, the Court said: “And in determining this question of power the court is confined, as heretofore stated, to the record proper and the judgment itself. It is not permitted that the testimony or the rulings therein should be examined, into, nor that matters fairly in the discretion of the presiding judge should be reviewed, or that judgments erroneous in the ordinary acceptation of the term should be questioned. The hearing is nmrfi-np.fl to the record and judgment, and relief may be afforded only when on the record itself the judgment is one clearly and manifestly beyond the power of the court, a statement of the doctrine supported in numerous and authoritative decisions here and elsewhere,” citing Ex parte McCown, 139 N. C., 95; In re Schenck, 74 N. C., 607; In re Swan, 150 U. S., 637; In re Coy, 127 U. S., 731.

This being the recognized principle that prevails in a hearing and case of this kind, our statute on contempts being C. S., ch. 17, sec. 978 et seep, constitutes the acts and conduct of defendant, as established in this case, a direct contempt, authorizes punishment by imprisonment not to exceed thirty days or fine not to exceed $250, or both, in the discretion of the court, C. S., 981, and in express terms confers power to impose it on “every justice of the peace, referee, commissioner, clerk of the Superior, inferior, or criminal court, on the judges of Superior and Supreme Court, board of commissioners of Corporation Commission, when sitting on the trial of causes or engaged in official duties.” C. S., 983.

Defendant having been convicted and sentenced under the provisions of the statute, this is a final sentence, from which no appeal lies in the ordinary acceptation of the term, and where under the authorities cited, and others of like kind, can only be reversed or modified for a lack of power or jurisdiction of the court imposing the sentence. In re Groom, supra; S. v. Little, 175 N. C., 743; In re Brown, 168 N. C., 417; Ex parte McCown, 139 N. C., 95.

It is urged for petitioner that this sentence is beyond the power of the mayor’s court, which is only vested with the jurisdiction of a justice of the peace, and whose powers, therefore, under Article IY, section 27, of the Constitution, are restricted to a fine of $50 or imprisonment for 30 *768days, but the Court is of opinion that the limitations of this article and section apply, and were designed to apply, to the ordinary administration of the law in the trial of criminal causes, and were not intended to affect the inherent or statutory powers possessed by these courts and conferred upon them as necessary to enable them to transact business and maintain a proper “respect for their authority.” This is undoubtedly the Legislature’s construction of the section of the Constitution referred to, for, as we have said, the statute, in express terms, confers the power to punish and fine to the amount stated on the justices of the peace as well as on courts of record, and there are decisions here and elsewhere which strongly favor this view. In re Griffin, 98 N. C., 225; S. v. Lyon, 93 N. C., 575; People v. Toole, 35 Col., 225; 6 R. C. L., title Contempt, sec. 43.

In Griffin’s case, supra, speaking to the distinction and some of the differences that exist between proceedings for contempt and the ordinary administration of the criminal law, Smith, C. J., said: “The one belongs to the general administration of the criminal law, the other is the exercise of judicial authority inherent in the court, and indispensable in the exercise of its functions. If the act which shows the contempt constitutes a criminal offense, it may be prosecuted and punished as such notwithstanding the contempt may also be punished.”

And in S. v. Lyon, supra, in which it was held that a justice of the peace, in proper cases, had the power to require an adequate bond to keep the peace, and no appeal would lie, though the result might, in its practical operation, work an imprisonment far beyond the thirty days limitation on a justice’s jurisdiction, Merrimon, J., said: “This view is not in conflict with the provisions of the Constitution, Art. IV, sec. 27, and the statute on the subject. These provisions have reference to criminal cases wherein the magistrate gives judgment against a party charged with a criminal offense and imposes on him a punishment therefor.”

And in no event would the petitioner be entitled to his discharge on the facts of the present record. Even if the statute authorizing justices to both fine and imprison for direct contempt of court were invalid as violating the constitutional restrictions on their criminal jurisdiction, these courts have, with us, and without any statute, the inherent power to punish for direct contempt, when engaged in the administration of the State’s justice, and in the exercise of the jurisdiction and powers conferred upon them by the law. In re Deaton, 105 N. C., 59; Scott v. Fishblate, 117 N. C., 265; S. v. Aiken, 113 N. C., 651.

And this being true, even if the fine of $200 were invalid, the portion of the judgment inflicting an imprisonment for thirty days would be well within the constitutional provisions, and must be enforced according to its terms.

*769It is tbe established principle in cases of this character that when a prisoner is detained by virtue of a sentence in part valid, and part otherwise, he may not be liberated on habeas corpus till he shall have served the valid portion of his sentence. In re Holley, supra, citing U. S. v. Pridgen, 153 U. S., 48; Ex parte Erdman, 88 California, 578. A position directly recognized and approved in subsection four of our statute on habeas corpus as above quoted, “that the prisoner shall be remanded when it appears that the time during which he may be legally detained has not-expired.”

This will be certified that the judgment of the mayor’s court be enforced as entered.

Modified and affirmed.

Clark, O. J., did not sit.