On March 21, 1968, a preliminary hearing on a criminal charge was held in the probate court of Twin Falls County. Respondent (defendant) as probate judge, presided over the hearing and appellant (plaintiff), the Chief of Police of the City of Twin Falls, was called as a witness by the defense. During the questioning of appellant as a witness, appellant testified that he had made certain notes on December 21, 1967, which notes were to record what had transpired at a conference between him and the accused, wherein said accused allegedly confessed to the crime of preparing false evidence. Chief Barnett (appellant) also testified that he had read his notes a week or ten days before the hearing, but had the notes in his possession in the courtroom at the hearing. Defense counsel then asked appellant to produce the notes. Appellant refused. Defense counsel then *321 moved that appellant he required to produce thе notes for his inspection pursuant to I.C. § 9-1204.
Judge Reed (respondent), on the basis of the statute, ordered appellant to produce the notes for inspection by defense counsel. Appеllant refused on the grounds that I.C. § 9-1204 applied only to writings referred to at the time of hearing, and that since his referral to the notes occurred a week or ten days prior to the hearing, the notes did not have to be produced.
Upon appellant’s continued refusal to produce the notes subsequent to a contempt warning, respondent Judge Reed held appellant in contemрt of court and fined him one hundred dollars.
Appellant then petitioned for a writ of review in the proper district court. On hearing the district judge reviewed the portion of the record relating to, and including, the appellant’s testimony and the contempt order, and quashed the writ.
From such order this appeal was perfected.
Primarily, appellant assigns as error the action of the district court in quashing the writ of review on grounds that the respondent probate judge exceeded his jurisdiction in holding appellant in contempt. He contends that the respondent incorrectly interpreted I.C. § 9-1204 as requiring a witness to furnish notes used in refreshing his memory, whether such rеfreshing occurred during or prior to the hearing, and that correctly interpreted, the statute applies only when the refreshing occurs during the hearing. Since he did not refer to his notes during the hearing, aрpellant argues that the court had no jurisdiction to punish him for contempt because the order which he is alleged to have disobeyed, i.e., to furnish his notes, is one which the court had no authority to make.
Assuming momentarily for the sake of argument that the respondent’s interpretation of I.C. § 9-1204 was incorrect, the question raised is whether the erroneous interpretation of the statute deprived the probate court of the authority, and therefore the jurisdiction, to order appellant to perform under the statute, and to subsequently hold him in contempt for not obeying that order.
The question is not a novel one before this court, and the scope and limitations of the contempt power held by the courts previously have been defined and established in Idaho. While the order holding a person in contempt is not appeal-able under I.C. § 7-614, the writ of review has been recognized as a proper method by which the actions of a court in a contempt proceeding cаn be reviewed. Mathison v. Felton,
It is also well established in Idaho that where such contempt is reviewed under a writ of review, the sole question for determination is whether the inferior tribunal excеeded its jurisdiction. Berry v. District Court of Third Judicial District,
In the Mathison case (supra), this court upheld a contempt judgment, even though *322 the court judgment violated therein was later reversed by the appellate court, stating:
“Even though the judgment in the case which forms the basis of this contempt proceeding has been reversed, it is our conclusion that such reversal will be of no avail to the petitioner here in the determination of whether the contempt judgment should be upheld. The judgment in the principal cause was not a void judgment for the trial court had jurisdiction of the parties, the subject matter, and the power to enter the judgment it did and the error upon which the reversal is based is not jurisdictional. It is almost unanimously agreed that such a person may not disregard or violate such an order, and set up the error as a defense in a contempt proceeding for violation of such order. See cases cited in the annotation12 A.L.R.2d 1059 , at page 1107, § 41.” (90 Idaho at p. 94 ,408 P.2d at p. 461 )
The record clearly shows, and the appellant doesn’t deny, that the probate court had personal jurisdiction over him as a witness, and jurisdiction over the parties and the subject matter of the case before the court. Appellant contends, however, that the court misinterpreted I.C. § 9-1204 and, therefore, actually had no power under the statute to order him to produce the notes, and thus exceeded its jurisdiction in finding appellant in contempt and sentencing him for failure to comply with such order.
Article 5, Section 2 of the Constitution of the State of Idaho creates the judicial department, and by giving judicial power to the courts, confers on them the power and the duty to construe the laws. Ogden v. Blackledge, 2 Cranch (6 U.S.) 272,
The case of MacWatters v. Stockslager,
In the present case the statute involved has never been interpreted by this court. Thus, the order of the probate court was valid, the сourt had jurisdiction, and the MacWatters v. Stockslager ruling is not controlling here. Similarly, the case of State v. McNichols,
Since the probate court did have jurisdiction, the next question presented is whether the facts show a contempt of court. The appellant does not deny that the court ordered him to produce his notes pursuant to the court’s interpretation of the statute, nor that he refused to comply with such order. Such order was valid and thus, pursuant to I.C. § 18-1801(4), the appellant was guilty of contempt for wilful disobedience of an order lawfully issued by the court.
There is no question here of whether appellant could be purged of his contempt on grounds that his action was legally justified. Appellant gave no reason whеn asked by the court for refusing to produce the notes. He testified that he had the notes in his possession at that time, and thus, there is also no question of impossibility of performance such as in the case of Hay v. Hay,
In view of our holding that the appellant was guilty of contempt for disobeying the court’s order, regardless of whether the statute upon which the order was based was correctly or еrroneously interpreted, it is unnecessary at this time for us to rule on the correctness of the respondent’s interpretation of I.C. § 9-1204. We reserve such question.
The order of the trial court is affirmed. Costs to respondent.