The news & observer. [volume] (Raleigh, N.C.) 1894-current, 1905-09-27
Opinion in McCown Case
Filed Yesterday.
THE STATUTE APPLIES
While Strongly S ating the Ancient
Right of the Courts to Protect
Themselves, Justice Walkers
Opinion Brings Mccown Case
Under Statute as Well.

The Supreme court yesterday hand.
ed down several opinions of public
interest, the greatest of these in i'm
portance being that of Elk Parte Me
Gown, growing out of the habeas cor
pus proceeding instituted after Nc
Gown had been attached for contempt
by Judge Ward for making a personal
attack upon him while at his boarding
house, the assault growing out of SEN
tence passed on a prisoner in the court
which McCown did not consider to
have been sufficiently severe.
The opinion, which is written by
Justice Walker, is exhaustive of the
authorities.
In brief the court holds that the
power to attach for contempt is inner
ent in courts of record as a right of
sel1-protection existing in a co-ordi-
nate and independent branch of the
government
While strongly >enunciating this
opinion and holding that any law at
tempting to abridge it would be I'M
constitutional, the court holds that
former opinions rendered in the con-
struction of the contempt statutes did
not go so far as to declare the repeal
and holds, also, that. before final
adjournment, an indignity offered to
the person of the court by reason of
the exercise of judicial discretionA IS
such an interference with the pro-
ceedingS and bringing of the court
into contempt as to carry the case un-
der the provisions of the statute of
1871.
Extracts from The Opinion.
In part the opinion OF Justice Wal
ker is as follows:
This matter, as now presented to
me, really involves the correctness of
the ruling of Judge Ward in the pro-
ceedings which resulted in the COM
mitment of the respondent and the
imposition of a fine upon him for con-
tempt of court. If upon the facts as
found by the Judge, a contempt was
committed within the meaning and in
tent of the law uDon that subject, or
to express the same idea in somewhat
different words, and as it is usually
stated, if the judge was in the eX-
ercise of q rightful jurisdiction in the
particular case, .his\ decision cannot
be reviewed in a collateral way by the
writ of habeas corpus. This court is
bound by the judges findings of fact
which were spread upon the record as
required by the statute. In re Deaton,
los y. c.. SO; Elk Parte Terry, 12S u.
s., 2S9. We cannot decide whether
there was any merely erroneous ruling
of the court or any irregularities III
respect to judgment and procedure, as
the writ of habeaS corpus can never
be made to perform the Office of a
writ of error or of an appeal. We are
confined in our investigation to the
question of jurisdiction or power of
the judge to proceed as he did and
cannot otherwise pass upon the merits
of the controversy. There must have
been a want of jurisdiction over the
person or the cause or some other mat
ter rendering the proceedings void, as
this is the only ground of collateral
attack. The law in this respect has
been definitely settled, we believe, by
all the courts.
THE range of our inquiry, there
fore, is narrowed to the question of
jurisdiction and the validity of the or
der of Judge Ward. That the court
had general jurisdiction of the sub
ject of contempt cannot be denied; but
do the facts stated in the record con-
stitute a contempt within the meaning
of the law? This is precisely the
question now before us. We would
have had less difficulty in deciding
this case, ii by the Act of 1871 (Code
Sec. GAS to 657, the Legislature had
not defined contempts of court and de-
clared that no other acts or conduct
not mentioned therein should be the
subject of contempt and repealed the
common law. in SO far as it recognized
as contemptS other acts or conduct
not specified in the statute. We are
satisfied that at common law the acts
and conduct of the petitioner, as set
out in the case, constituted contempt