936. Vacancies filled by board of commissioners. Upon the death, failure to qualify or removal of any constable out of the township in which he was elected or appointed constable, the board of commissioners may appoint another person to fill the vacancy, who shall be qualified and act until the next election of constables.

Code, s. 646; R. C., c. 24, s. 6. Vacancy filled by commissioners: King v. McLure, 84-153.

937. Powers and duties. Constables are hereby invested with, and may execute the same power and authority as they have been by law heretofore vested with, and have executed; and, in discharge of their duties, they shall execute all precepts and processes of whatever nature to them directed by any justice of the peace or other competent authority within their county or upon any bay, river, or creek adjoining thereto; and the said precepts and processes shall be returned to the magistrate, or other proper authority. Code, s. 643; R. C., c. 24, s. 9.

For powers and duties of town constables, see section 2939. For liability upon official bond, see section 302.

A township constable has power to summons appraisers to lay off exemptions where execution issues from justice's court: McAuley v. Morris, 101-369-and to administer to them the oath, Ibid. Process addressed "to any constable' can be served by any constable of the county: Baker v. Brem, 127-324 (in dissenting opinion). A special constable appointed

as a "special constable' in writing, has general powers of a regular constable with reference to that case: State v. Armistead, 106-639.

Township constable has no power to serve process not directed to him: McGloughan v. Mitchell, 126-682-nor to inquire into regularity of criminal process where jurisdiction exists and warrant otherwise valid: State v. Furguson, 76-197; Welch v. Scott, 27-72-nor to serve case on appeal to supreme court, Forte v. Boone, 114-176.

Judgment not rendered invalid by failure of constable to sign return, McElrath v. Butler, 29-398.

938. Shall execute notices within justice's jurisdiction. Constables shall likewise execute, within the places aforesaid, all notices tendered to them, which are required by law to be given for the commencement, or in the prosecution of any cause before a justice of the peace; and the service thereof shall be made by delivering a copy to the person to be notified or by leaving a copy at his usual place of abode, if in the jurisdiction of the constable, which service, with the time thereof, he shall return on the notice, and such return shall be evidence of its service. On demand they shall deliver the notice to the party at whose instance it was issued.

Code, s. 644; R. C.., c 24, s. 10.

See also section 439. Constable can not serve case on appeal to supreme court: Forte v. Boone, 114-176.

CHAPTER 17.

CONTEMPT.

939. What constitutes; common law repealed; appeals; duty of solicitor and attorney general. Any person guilty of any of the following acts may be punished for contempt:

Power to commit or fine for contempt is essential to the existence of every court: Ex parte McCown, 139-104; Scott v. Fishblate, 117-265; State v. Woodfin, 27-199. Contempt itself and the history of punishment for contempt reviewed in Ex parte McCown, 139-104. Whenever the law affords any other adequate remedy, proceeding by attachment for contempt is in discretion of the court: Murray v. Berry, 113-46. Advice of counsel no excuse for contempt: Green v. Griffin, 95-55-except where it is directed at the interpretation of the court's mandate, Ibid. Punishment for contempt no bar to indictment: In re Griffin, 98-225; State v. Woodfin, 27-199. Practice explained and sufficiency of defense considered: Kane v. Haywood, 66-1. One prima facie guilty may be required to pay costs though rule discharged: Bond v. Bond, 69-97. Proceeding for contempt can not be withdrawn in superior court after appeal nor in supreme court by one creditor where there are other creditors with rights to be protected: Bristol v. Pearson, 109-718. Where motion to attach for contempt refused it is a bar to further proceedings upon same facts: Wilson v. Craige, 113-463. Officer sending person to jail for contempt not civilly liable even though he did it maliciously and erroneously: Scott v. Fishblate, 117-265. Receiver not punishable for contempt for refusing to turn over property to appointee of another court until question of priority decided: Worth v. Bank, 121-343. Where respondent appeared before judge outside of the district and answered, he will be deemed to have waived venue: Herring v. Pugh, 126-852.

1. Disorderly, contemptuous, or insolent behavior committed during the sitting of any court of justice, in immediate view and presence of the court, and directly tending to interrupt its proceedings, or to impair the respect due to its authority.

Judge assaulted while away from courthouse during term of court: Ex parte McCown, 139-95. Disorderly behavior in court: State v. Mott, 49449. Fighting in presence of court: State v. Woodfin, 27-199. What constitutes in presence of court' discussed in Ex parte McCown, 139-95. 2. Behavior of the like character committed in the presence of any referee or referees, while actually engaged in any trial or hearing pursuant to the order of any court, or in presence of any jury while actually sitting for the trial of a cause, or upon any inquest or other proceeding authorized by law.

Contempt before referee punished by court appointing him: La Fontaine v. Underwriters, 83-132.

3. Any breach of the peace, noise or other disturbance directly tending to interrupt the proceedings of any court.

Fighting in presence of court: State v. Woodfin, 27-199. Disorderly behavior: State v. Moot, 49-449.

4. Wilful disobedience of any process or order lawfully issued by any court.

Disobedience by party or person other than officer: In re Scarborough Will, 139-423; Green v. Green, 130-578, 140-651, 143-406; Williamson v. Pender, 127-481; Herring v. Pugh, 126-852; Delozier v. Bird, 123-689; Shooting Club v. Thomas, 120-334; Childs v. Wiseman, 119-497; Wilson v. Craige, 113-463; Zimmerman v. Zimmerman, 113-432; Murray v. Berry, 113-46; Bristol v. Pearson, 109-718; Fleming v. Patterson, 99-404; Kron v. Smith, 96-386; Thompson v. Onley, 96-9; Green v. Griffin, 95-50; Young v. Rollins, 90-128; Boyett v. Vaughan, 89-27; Baker v. Cordon, 86-116; In re Walker, 82-95; In re Davis, 81-72; Pain v. Pain, 80-322; Daniel v. Owen, 72-340; Phillips v. Trezevant, 70-176; Bond v. Bond, 69-97; Morris v. Whitehead, 65-637; Wood v. Wood, 61-538; Pritchard v. Oldham, 53-439-by county commissioners, Cromartie v. Comrs., 87-134-by officer, In re Patterson, 99-407; Ex parte Summers, 27-149-by public administrator, In re Brinson, 73-278. Disobedience of mandamus, Cromartie v. Comrs., 87-134-of subpoena, State v. Aiken, 113-651. The act abolishing imprisonment for debt does not embrace cases of attachment for failure to obey order of court: Wood v. Wood, 61-538. Where language in order is plain, it is no defense to charge of disobedience of same, that language was not understood: Baker v. Cordon, 86-116.

5. Resistance wilfully offered by any person to the lawful order or process of any court.

6. The contumacious and unlawful refusal of any person to be sworn as a witness, or when so sworn, the like refusal to answer any legal and proper interrogatory.

Witness refusing to answer questions in superior court: In re Briggs, 135-118-before commissioner to take examination, Fertilizer Co. v. Taylor, 112-145-before referee, LaFontaine v. Underwriters, 83-132.

7. The publication of grossly inaccurate reports of the proceedings in any court, about any trial, or other matter pending before said court, made with intent to misrepresent or to bring into contempt the said court; but no person can be punished as for a contempt in publishing a true, full and fair report of any trial, argument, decision or proceeding had in court.

Inaccurate report of proceedings of court, or criticism by newspaper: In re Robinson, 117-533; In re Deaton, 105-59; Ex parte Biggs, 64-202. Libelous matter by attorney about court: In re Moore, 63-398; Ex parte Biggs, 64-202. As to publications made by an attorney in his own newspaper, Ibid. Sworn answer is conclusive as to intent with which publication made: In re Robinson, 117-533; Ex parte Biggs, 64-202; In re Moore, 63-397.

8. Misbehavior of any officer of the court in any official transaction.

Attorney's failure to pay over money collected for client: Kane v. Hay

wood, 66-1. Negligence of attorney in conduct of case: Robins ex parte, 63-312. Where justice of the peace defaces appeal bond and refuses to make return, held misdemeanor but not contempt: Weaver v. Hamilton, 47-343. Refusal of clerk superior court to send up record: Te-Gan-Tossee v. Rogers, 9-567.

The several acts, neglects and ommissions of duty, malfeasances, misfeasances, and nonfeasances, above specified and described, shall be the only acts, neglects and omissions of duty, malfeasances, misfeasances and nonfeasances which shall be the subject of contempt of court. And if there be any parts of the common law now in force in this state which recognized other acts, neglects, omissions of duty, malfeasances, misfeasances and nonfeasances besides those specified and described above, the same are hereby repealed and annulled.

Any person adjudged to be guilty of contempt under this section shall have the right to appeal to the supreme court in the same manner as is provided for appeals in criminal actions: Provided, that such right of appeal shall not apply to the contempt described and defined in subsections one, two, three and six: Provided further, that such right of appeal shall not apply to the contempt described and defined in subsections four and five; if such contempt shall be committed in the presence of the court: Provided further, that in all cases where a rule for contempt is issued by any court, referee or other officer the solicitor shall appear for the court or other officer issuing the rule, and in case of appeal to the supreme court the attorney general shall appear for the court or other officer by whom the rule was issued.

Legislature can not deprive courts of inherent right to punish for con tempt committed in presence of court: Ex parte McCown, 139-95; In re Robinson, 117-533; In re Patterson, 99-418; In re Oldham, 89-26; Ex parte Schenck, 65-366-but constitutional inhibition is not infringed by legislature in specifying what acts shall constitute contempt: In re Oldham, 89-23. Where contempt not committed in presence of court legislature may regulate power of court: In re Robinson, 117-538; In re Oldham, 89-23. Appeal does not lie where offense committed in presence of court: Ex parte McCown, 139-95; In re Deaton, 105-59; Scott v. Fishblate, 117-265; Young v. Rollins, 90-131; In re Davis, 81-75; Biggs ex parte, 64-202; State v. Mott, 49-449; State v. Woodfin, 27-199; Ex parte Summers, 27-153.

Appeal lies where offense not committed in presence of court: Ex parte McCown, 139-95; In re Deaton, 105-59; Cromartie v. Comrs., 85-211; In re Davis, 81-74; Ex parte Robins, 63-319.

Code, s. 648; 1905, c. 449.

940. Punishment. Punishment for contempt for matters set forth in the preceding section shall be by fine not to exceed two hundred

and fifty dollars, or imprisonment not to exceed thirty days or both, in the discretion of the court.

Code, s. 649. Punishment according to statute: Ex parte McCown, 139122; Scott v. Fishblate, 117-265; Zimmerman v. Zimmerman, 113-432; State v. Aiken, 113-651. Punishment contrary to statute: In re Deaton, 105-59; In re Patterson, 99-407; In re Walker, 82-95. Distinction between imprisonment to compel obedience to order of court and punishment for contempt in disobeying order pointed out: In re Patterson, 99-417; Cromartie v. Comrs., 85-211. Fine can not be paid to party aggrieved but must go to state: Morris v. Whitehead, 65-637; In re Rhodes, 65-518.

941. Court may punish summarily. Contempt committed in the immediate view and presence of the court may be punished summarily, but the court shall cause the particulars of the offense to be specified on the record, and a copy of the same to be attached to every committal, attachment or process in the nature of an execution founded on such judgment or order.

Code, s. 650. Right of court to punish summarily: Ex parte McCown, 139-95; In re Briggs, 135-141 (concurring opinion); Baker v. Cordon, 86120; State v. Mott, 49-449; Ex parte Summers, 27-152; State v. Yancey, 4-133-without giving respondent a jury trial, In re Deaton, 105-64; Baker v. Cordon, 86-120 and cases cited.

Facts found must be set out by judge: Ex parte McCown, 139-99; In re Deaton, 105-59; Young v. Rollins, 90-131; State v. Mott, 49-449-and such facts found by superior court judge are conclusive, Ex parte McCown, 139-99; In re Deaton, 105-59; Young v. Rollins, 90-125-and are not reviewable except for purpose of passing upon sufficiency to warrant judgment, Green v. Green, 130-578-but facts found by inferior court may be reviewed on appeal by superior court, In re Deaton, 105-59; State v. Aiken, 113-653. Where court finds facts, revising tribunal on habeas corpus may say whether they constitute contempt: Ex parte Summers, 27149.

942. Who may punish. Every justice of the peace, referee, commissioner, clerk of the superior court, inferior court, criminal court, or judge of the superior court, or justice of the supreme court, or board of commissioners of each county, or corporation commissioner, shall have power to punish for contempt while sitting for the trial of causes or engaged in official duties.

Code, ss. 651, 652. Cases where punishment was properly within power of supreme court: In re Moore, 63-397-of judge of superior court, Ex parte McCown, 139-95; In re Briggs, 135-118; Williamson v. Pender, 127487; Herring v. Pugh, 126-852; Shooting Club v. Thomas, 120-334; Childs v. Wiseman, 119-498; Murray v. Berry, 113-46; In re Patterson, 99-407; Thompson v. Onley, 96-10; Green v. Griffin, 95-50; Cromartie v. Comrs., 85-211; In re Walker, 82-95; In re Davis, 81-72; Bond v. Bond, 69-97; Morris v. Whitehead, 65-637; In re Rhodes, 65-518; Ex parte Biggs, 64