¶1(dissenting).’ My dissent is based on the ground that Weldon did not commit contempt in the presence of the court, and therefore, under our Constitution, his punishment is fixed by statute at a fine not exceeding the sum of $50 and imprisonment not exceeding ten days in jail. .
¶2State v. Morrill, 16 Ark. 384, sustains the inherent common-law right of constitutional courts to punish for contempt, committed either in or out of the presence of 'the court.
¶3The Constitution of 1874 did not attempt to restrict the power of constitutional courts to punish for contempt, whether committed in or out of the presence of the court.
¶4Art. 7, sec. 26, provides that the General Assembly shall have the power to regulate by law the punishment of contempts not committed in the presence or hearing of the courts, or in disobedience of process. This section recognizes the inherent power of constitutional courts to punish for contempt, but gives the Legislature power to prescribe the punishment where the contempt is not committed in the presence of the court.
¶5The court either was or was not in session when the contempt was committed. If it was not in session, I cannot see how there could be any contempt committed in the presence of the court, either actual or constructive. If court was in session, the case would call for' the application of the doctrine in Turk v. State, 123 Ark. 341. In that case the court was in session, and the contempt consisted in the defendant, by threats, preventing the plaintiff from appearing in the circuit court to prosecute' his case. At the time the contempt was committed by the defendant the plaintiff was in the town where the court was in session for the purpose of attending the trial of his case on that day. The law does not take account of different parts of days. Central Coal & Coke Co. v. Graham, 129 Ark. 550. Hence the court said that he was constructively in the presence of the court when the contempt was committed.
¶6The doctrine of constructive presence proceeds upon the theory that the misbehavior is committed where it takes effect. Where one puts in force an agency for the purpose of interfering with the administration of justice, he, in legal contemplation, accompanies the same to a point where it becomes effective.
¶7So in the present case, if court had been in session, it would be said that the contempt was committed in the constructive presence of the court, although not at the courthouse. I cannot perceive how contempt could be-committed, either in the actual or constructive presence of the court, when the court was not in session.
¶8Light v. Self, 138 Ark. 221, is authority for holding that the court was not in session when Weldon committed the contempt. In that case the county court entered an order, “Court adjourned until called by the judge,” and at a later day attempted to amend the order of adjournment so as to make it read, “The court will suspend until tomorrow and remain open until the business of the term is completed.” This court held that this could not be done, because the court could not be kept in session by such an order.
¶9The effect of the holding in that case is that any order made by a court not in session is void, and I cannot conceive how contempt could bo committed in the presence of the court, which was not a court, because not in session.
¶10All courts, unless restrained by statute, may adjourn their sittings to a distant day. Dunn v. State, 2 Ark. 229, and McVay v. State, 104 Ark. 629. In State v. Canal Const. Co., 134 Ark. 447, the court said that we have departed from the common-law rule that a term of court should be considered as one day,and that a court of record may adjourn from one day to a distant day. It was further1 stated that during the interim the court had no power to transact business.
¶11Even under the dissenting opinion in the case of Light v. Self, supra, the contempt in the present case cannot be said to have been committed in the presence of the court. The dissenting opinion in that case proceeds upon the theory that the court was not adjourned by the order made. The dissenting opinion, however, recognized the power of the court to adjourn from one day to a distant day. "When it has adjourned from one day to a distant day, I cannot perceive how it could be said to be in session for any purpose during the intervening days. If so, if a court should adjourn tom distant day for the purpose of holding a regular term of the court in another county in his district, it would, follow, under the majority opinion, that contempt could be committed in the presence of the court, not only of tiie court which was actually being held, but also of the court which was adjourned.
¶12The Chief Justice concurs.