#### In re Sandra Hill TETTER v. STATE of Alabama ex rel. William J. BAXLEY, Attorney General of Alabama. Ex parte Sandra Hill Tetter.

6 Div. 694.

Court of Criminal Appeals of Alabama.

Dec. 3, 1977.

Rehearing Denied Dec. 20, 1977.

*1044Jesse W. Shotts, Birmingham, for petitioner.

William J. Baxley, Atty. Gen., and Rosa G. Hamlett, Asst. Atty. Gen., for the State, opposed.

ON APPLICATION FOR REHEARING

HARRIS, Presiding Judge.

The Attorney General has filed in this Court an application for rehearing seeking to set aside, annul and hold for naught an order of this Court issued on December 3, 1977, directed to Honorable Joe G. Barnard, one of the Judges of the Circuit Court of Jefferson County, in which he was ordered to vacate, set aside, and hold for naught his decree in case number 179876 in which he adjudged Sandra Hill Tetter in contempt and sentenced her to five days in jail. We further ordered Judge Barnard to hold a hearing on the issue of contempt in this case with counsel present to represent the interest of the said Sandra Hill Tetter and that a full record of this hearing be forwarded to this Court for review before any further action is taken in this matter.

This is an important case and the issue to be determined is whether this Court has jurisdiction in contempt proceedings growing out of *civil*cases. In the past few weeks this Court has issued orders in two contempt proceedings arising from purely domestic problems over which this Court does not have final jurisdiction. In each such case the majority of this Court was of the considered opinion that we should not assume jurisdiction, but due to the urgency of the situation we issued the orders without writing a formal opinion. In the present case this Court met in emergency session on Saturday morning, December 3, 1977, because Mrs. Tetter was put in jail the previous Friday night.

The other case involved petitioner’s incarceration for a period in excess of three weeks due to a civil contempt committed when he refused to surrender certain household furniture, furnishings and other property which were set forth in a divorce decree. Petitioner was in jail and could not personally deliver the items of property as ordered by the Court. We ordered him released for 48 hours to comply with the decree of the Court.

It was the opinion of this Court in each of these cases that we were controlled by the case of *Musgrove v. United States Pipe and Foundry Company,*290 Ala. 156, 274 So.2d 640, but we entertained grave misgivings as to whether we, indeed, had jurisdiction. Nevertheless, we felt bound by the decision in *Musgrove,*supra.

We are aware that *Musgrove,*supra, was bottomed on *Robertson v. State,*20 Ala. App. 514, 104 So. 561. *Robertson*was not reviewed by the Supreme Court. We deem *Robertson*to be bad law and here and now overrule the decision in that case.

In view of the foregoing we earnestly urge the Supreme Court to decide if this Court is compelled to entertain jurisdiction in contempt proceedings growing out of *1045purely *civil*matters over which we have no jurisdiction to render final orders.

Application be and the same is hereby overruled.

TYSON, DeCARLO and BOWEN, JJ., concur.

BOOKOUT, J., dissents.

TYSON, Judge,

concurring.

I concur in the foregoing opinion prepared by our Presiding Judge.

The Judicial Article, being Article VI, Sections 139-160, amending the Constitution of Alabama of 1901, was adopted in December 1973. Section 141 reads as follows:

> “Courts of appeals, (a) The court of criminal appeals shall consist of such number of judges as may be provided by law and shall exercise appellate jurisdiction under such terms and conditions as shall be provided by law and by rules of the supreme court.

> “(b) The court of civil appeals shall consist of such number of judges as may be provided by law and shall exercise appellate jurisdiction under such terms and conditions as shall be provided by law and by rules of the supreme court.

> “(c) The court of criminal appeals and the court of civil appeals shall have no original jurisdiction except the power to issue all writs necessary or appropriate in aid of appellate jurisdiction of the courts of appeals.

> “(d) The court of criminal appeals shall have and exercise original jurisdiction in the issuance and determination of writs of quo warranto and mandamus in relation to matters in which said court has appellate jurisdiction. Said court shall have authority to issue writs of injunction, habeas corpus and such other remedial and original writs as are necessary to give it a general superintendence and control of jurisdiction inferior to it and in matters over which it has exclusive appellate jurisdiction; to punish for contempts by the infliction of a fine as high as one hundred dollars, and imprisonment not exceeding ten days, one or both, and to exercise such other powers as may be given to said court by law.”

Because the passage of the Judicial Article is subsequent in point of time to the opinion of the Supreme Court of Alabama in *Musgrove v. United States Pipe and Foundry Company,*290 Ala. 156, 274 So.2d 640, I am of the opinion that the Court of Criminal Appeals no longer has either equity or civil jurisdiction to entertain petitions growing out of civil cases or other proceedings in which civil contempt is involved.

BOOKOUT, Judge,

dissenting.

I would grant the application for rehearing. I dissent for two reasons:

I

The Court of Criminal Appeals has jurisdiction to issue original writs of habeas corpus. That jurisdiction is not limited to cases over which we have appellate jurisdiction.

I do not agree that *Musgrove,*supra, was bottomed on *Robertson,*supra, which was not reviewed by the Supreme Court and thus by overruling *Robertson,*we can somehow change the results of *Musgrove.*That reasoning was expressly rejected by the Supreme Court in *Musgrove,*290 Ala. at page 159, 274 So.2d at page 643:

> “Clearly, then, the *Robertson*case presented the exact same question which is before us here. The Court of Criminal Appeals recognized that, but was of the opinion that it need not follow that decision since it had not been reviewed in this court. We think the contrary. The legislature has used the exact same language construed by the Court of Appeals in *Robertson*when it adopted Title 13, § 111(4). A long line of cases hold that where the legislature re-enacts a statute or uses language in a new statute which has been previously construed by the judiciary, the construction given in a prior decision must be accepted as part of the same. . . . ”

*1046The Supreme Court’s decision in *Mus-grove*is bottomed upon their interpretation of former Title 13, Section 111(4) Code of Alabama 1940, Recompiled 1958 (Act No. 987, Acts of Alabama 1969). That section has been adopted as part of our Constitution in the new Judicial Article. Article VI, Section 6.03(d), Constitution of Alabama, Amendment No. 328, ratified December 27, 1973, contains the same verbiage of former Title 13, Section 111(4), supra. The Supreme Court’s construction of Section 111(4) carries forward to Section 6.03(d) of the Judicial Article and to new Section 12-3-11, Code of Alabama 1975. Thus the authority of this Court to issue original writs of habeas corpus is now constitutional rather than solely statutory.

I fully recognize the wisdom expressed in the dissent of Justice Maddox in *Musgrove,*supra. I also recognize that, of the justices sitting in that 7 to 2 decision, only Justice Bloodworth (who voted with the majority) and Justice Maddox are currently on the Court. Whether that Court as now constituted will overturn its prior opinion is only speculation.

II

The contempt proceeding arose from a fight or disturbance between petitioner and others in a hallway immediately outside the courtroom. A hearing was going on at that time. The parties to the fight were either potential witnesses, parties or relatives of parties to the case being heard. The disturbance caused the trial judge to recess the hearing and to personally quell the disturbance. He found the petitioner to be in direct contempt.

In the case of *Ex parte Tarpley,*293 Ala. 137, 300 So.2d 409 (1974) our Supreme Court said:

> “In Alabama direct contempts are denoted as those contempts committed within the presence of the court, *or so near the court as to interrupt its proceedings. Ex Parte Hennies,*33 Ala.App. 377, 34 So.2d 22 (1948). Summary procedures, designed to punish direct contempts, are utilized to fill the need for immediate penal vindication of the dignity of the court. *Harris v. United States,*382 U.S. 162, 86 S.Ct. 352, 15 L.Ed.2d 240 (1965). .” (Emphasis supplied.)

The Circuit Court properly exercised its contempt power to preserve the dignity of that Court and to punish for the flagrant disturbance of its judicial proceedings. I would not have interfered with that Court by granting the writ, and I would now grant the application for rehearing and set aside our original order.