The opinion
ARMSTRONG, P. J.
(concurring). It is with great reluctance, and after much research and careful pondering, that I am forced to concur in the doctrine announced by my Associate, Judge Doyle, in the foregoing opinion, to the effect that no court in Oklahoma has the power to punish summarily for direct contempt until a hearing has first been allowed the offending party. The provision of the Constitution upon which the relief sought in this case must rest, and upon it alone in my judgment, is as follows:
“The Regislature shall pass laws defining contempts and regulating the proceedings and punishment in matters of contempt: Provided, that any person accused of violating or disobeying, when not in the presence or hearing of the court,'or judge sitting as such, any order of injunction, or restraint, made or rendered by any court or judge of the state shall, before penalty or punishment is imposed, lie entitled to a trial by jury as to the guilt or innocence of the accused. In no case shall a penalty or punishment be imposed for contempt, until an opportunity to be heard is given.”
The first clause of this provision clothes the Legislature with power to enact laws defining, regulating the procedure, and limiting the punishment in all classes of contempt. The second clause, together with section 2279, Rev. Laws 1910, prohibits any court from imposing punishment upon any offender for any indirect contempt until he has had a jury trial, if he so demands. The last clause specifically prohibits any court from imposing punishment of any character upon any contemptuous offender, either direct or indirect, until he has been given an opportunity to be heard. The wisdom of this provision, or any clause thereof, is not for this court to determine. It is a matter of common knowledge that many of the most able lawyers of Oklahoma and strong men from other walks of life composed the convention which
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wrote this provision into our Constitution, and it was ratified by an overwhelming vote' of the sovereign citizenship. The language is too plain to admit of judicial construction or interpretation that would allow any other conclusion than that expressed in the opinion. There has been no enactment by the Legislature since statehood defining contempts, providing procedure, or limiting punishments. The codifiers of the Revised Laws eliminated all such provisions from former enactments in- the Revision which was ratified by the Legislature. There can be no doubt but that the legislative assembly has the power under this section of the Constitution to enact a law prescribing a nominal fine for all classes of contempt, the most flagrant, as well as the most indirect, should it so desire, and by such enactment the court would be bound. Were it not for this provision, however, there is ample authority for the position that the power of the courts to inflict punishment summarily in cases of direct and flagrant contempt could not be restricted by unreasonable limitations. That our judiciary is elected by" popular vote and for short terms probably accounts for the fact that no action has been taken by the Legislature in this connection, together with the general confidence the people as a whole have in the courts. I know of no other identical constitutional provision, and considerable research has failed to disclose any of similar import.
In my judgment the relief prayed for and granted by the opinion in this case must stand wholly on the provision of the Constitution,
supra,
and upon no other legal grounds, organic or otherwise. That the contempt in this case was most flagrant, and merits severe punishment, cannot be doubted by any law-abiding citizen. The only question before us is: Was the punishment imposed in the manner provided by law? I am impelled to say that in my judgment it was not.
It appears that in the absence of legislation no punishment of any character can be imposed for
contempt
of any class until a hearing has been allowed. Just what this hearing should be is rather indefinite. I am of opinion, however, that arraignment before the bar of the court- and the offering by the court of an opportunity to the offender to give legal cause, if any, why judg
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ment should not be summarily pronounced, and the hearing by the court of such reasons as may be legally offered, if any, would warrant summary judgment, either for or against the offender as in the judgment of the court is just and proper. In view of the fact that the punishment in the case at bar was inflicted by a court of co-ordinate jurisdiction, it is the opinion of the writer that the petitioner should be required to raise these questions in that court by proper proceeding, and secure a determination of them there. The fact that this remedy was open, however, would probably not be sufficient warrant for this court declining, on
habeas corpus,
to give its judgment on the question raised.
For these reasons I concur in the conclusion reached by my Associate, Judge Doyle, that the petitioner is entitled to be released from imprisonment under the commitment in question, but in my opinion he should be held to Appear before the Supreme Court to await such further action as that body may deem proper.