¶1 (dissenting).
¶2 Among other questions, the petition in this proceeding presents the following: Was the petitioner convicted of contempt ■of court and sentenced to imprisonment ■without being afforded due process of law .as guaranteed to him by the due process •clause of Section 6 of the Constitution of this state, and by the due process clause of the Fourteenth Amendment to the Federal Constitution.
¶3 The petition shows that petitioner was .served with a subpoena duces tecum commanding him to produce before the Grand Jury of Jefferson County, Alabama, among •other things, the roster or list of member•ship of the Federated Ku Klux Klan, Incorporated. Petitioner appeared before the said Grand Jury and admitted that he 'had in his custody a list or roster of the Jefferson County membership but refused -to produce it when requested to do so by ■the Grand Jury. Whereupon petitioner was taken before Honorable Robert J. Wheeler, a judge of the Circuit Court of Jefferson County, Alabama, who had organized the Grand Jury. Judge Wheeler was informed of the fact that petitioner had refused to produce the list or roster of the Jefferson County membership. However no formal accusation was made. Petitioner was given no notice of any hearing to be held before Judge Wheeler, nor was opportunity afforded him to plead, answer or demur, or to have counsel in his behalf. Petitioner admitted in open court in the presence of Judge Wheeler that he had the list or roster of the Jefferson County membership in his possession but declined to produce it, even when so directed by the judge. Thereupon the petitioner was adjudged guilty of direct contempt and was ordered confined to the county jail of Jefferson County until such time as he purged himself thereof.
¶4 This petition involves the rights of the individual, Hugh Morris, the petitioner in this case. His rights as an individual must not be affected by the fact that he is a member and officer of an organization which has been accused of acts of terrorism and unlawfulness. Such acts, • of course, cannot be condoned, but petitioner cannot be denied due process of law merely because of his membership in such an organization. • . ,
¶5 The Supreme Court of the United States in a comparatively recent case, In re Oliver, 333 U.S. 257, 68 S.Ct. 499, 92 L.Ed. 682, treated at length the power of courts to punish for contempt of court. In that case it was said as follows: “Except for a narrowly limited category of contempts, due process of law as explained in the Cooke case requires that one charged with contempt of court be advised of the charges against him, have a reasonable opportunity to meet them by way of defense or explanation, have the right to be represented by counsel, and have a chance to testify and call other witnesses in his behalf, either by way of defense or explanation. The narrow exception to these due process requirements includes only charges of misconduct, in open court, in the presence of the judge, which disturbs the court’s business, where all of the essential elements of the misconduct are under the eye of the court, are actually observed by the court, and where im *558 mediate punishment is essential to prevent ‘demoralization of the court’s authority … before the public.’ ”
¶6 In view of the holding of the Supreme Court of the United States, as indicated above, I am constrained to the conclusion that the petitioner here was adjudged guilty of contempt and sentenced to imprisonment without being afforded due process of law! I do not believe that his refusal to deliver to the Grand Jury the list or roster of the organization of which he was an officer, although such refusal was in the presence of the court, is of that type of misconduct which unless immediate punishment was meted out would result in demoralization of the court’s authority before the public.
¶7 The petition shows that petitioner refused to produce this list or roster because of his belief that the Grand Jury had no power or authority to require its production. Of course petitioner cannot usurp the powers of the Grand Jury nor of the courts. He cannot set himself up as the arbiter of what the Grand Jury is entitled to have before it in its investigation into criminal matters pending before it. However, punishment for such conduct must be in conformity with due process.
¶8 I realize, of course, that the dignity of the courts must be maintained and that there are certain types of misconduct which when committed in the presence of the court require immediate punishment. But I do not believe that the dignity or majesty of the court would have been in any wise impaired in this instance if the petitioner had been cited to show cause why he should not be held to be in contempt of the court and an opportunity given him to secure counsel and prepare his defense.
¶9 I reiterate that the petition in this case-does not present for our consideration or determination any charge against the Ku Klux Klan. It simply presents the question as to whether or not an individual has been sentenced to imprisonment for contempt of court without being afforded due process of law as guaranteed to him by the state and federal constitutions. I am of the opinion that due process of law was not afforded petitioner, and for that reason alone I must respectively dissent from the conclusion reached by the majority of the court.