73 P. 1006 | Cal. | 1903
Lead Opinion
This is an original proceeding by mandamus to compel the respondent to complete the taking of a deposition and to employ the process of contempt against the witness to compel him to answer. The matter has been submitted upon a demurrer to the petition, from which it appears that these petitioners, having commenced an action for damages in the court of which the respondent is judge, filed a proper affidavit and gave regular notice that they would on a certain day take the deposition of the defendant therein before said judge at his courtroom. In pursuance of this affidavit and notice, the respondent issued a subpœna commanding the attendance of said defendant as a witness, and at the appointed time he appeared and was duly sworn to testify as a witness in the cause, but by the advice of his counsel and under their instructions he refused to answer certain proper questions propounded to him by counsel for the plaintiffs, and further declared his intention to refuse to answer any questions relating to the matters in controversy in the action.
Counsel for plaintiffs thereupon requested respondent to commit the defendant for contempt until he should consent to answer all such proper questions as might be asked him. This the respondent refused to do upon the sole ground that he had no power or jurisdiction to compel the defendant to answer.
A number of questions have been elaborately argued by counsel that are disposed of by our recent decision in the *215
case of Burns v. Superior Court, ante, p. 1. It is there held — contrary to the decision in Lezinsky v. Superior Court,
The only question that could arise in such case would be as to the procedure for enforcing the authority of the court. It might be contended that it would be necessary, as a foundation for any further proceeding against the witness, to lay before the court a formal complaint in writing duly verified, setting out the facts already within the knowledge of the judge, and thereupon to issue an attachment, citation, or order to show cause as in other cases of contempt not committed in the immediate view and presence of the court.
This contention could not be denied if the judge taking the deposition, under the circumstances disclosed by this petition, is to be regarded as a mere ministerial functionary, endowed with no more authority than a notary public or other officer empowered to administer oaths, for in such case, according to the decision of Burns v. Superior Court, ante, p. 1, the contumacy of the witness must be reported to the court, and the punishment, if any, inflicted by the court. *216
This case, however, differs from the Burns case in a most important particular, and the authority of the judge himself to punish the witness and compel him to answer without resorting to the court for that purpose is supported by provisions of the code which have no application to notaries and other ministerial officers.
By section
"Every judicial officer shall have power:
"1. To preserve and enforce order in his immediate presence, and in proceedings before him, when he is engaged in the performance of official duty;
"2. To compel obedience to his lawful orders as provided in this code;
"3. To compel the attendance of persons to testify in a proceeding before him, in the cases and manner provided in this code;
"4. To administer oaths to persons in a proceeding pending before him, and in all other cases where it may be necessary in the exercise of his powers and duties."
and by section
"For the effectual exercise of the powers conferred by the last section, a judicial officer may punish for contempt in the cases provided in this code."
To take evidence in the form of depositions is a function which while it may, for the sake of convenience, be sometimes delegated to notaries and other non-judicial officers, is nevertheless more especially the function of the judge before whom a cause is pending in which the depositions may be required. The taking and certifying of depositions by a notary is strictly analogous to the taking and reporting of testimony by a referee. It is a portion of the judicial function that may be delegated; and as long as witnesses consent to answer proper questions, the referee or notary may act as efficiently as the judge himself in reducing the evidence to a form in which it may be used at the trial. But the power to punish for contempt in refusing to answer, or of committing to prison until a witness consents to answer, is a judicial function which cannot be delegated. The referee in such case must report his contumacy to the court and leave to the *217 court the determination of the question whether a contempt has been committed and how it is to be punished.
This, however, is only because the legislature cannot confer upon a non-judicial officer powers in their nature essentially judicial, and, therefore, the statute (Code Civ. Proc., sec.
The cause itself is a proceeding before him; it is a cause pending in his court, awaiting his final judgment, and in every step of the process wholly within his jurisdiction. The taking of a deposition to be used on the trial of the cause is a proceeding in the cause, and when the judge himself is acting it is a proceeding before him. He may therefore under the provisions of the code above cited (Code Civ. Proc., secs. 177, 178) order the attendance of witnesses to give their depositions and command them to answer proper interrogatories. If his orders are disobeyed, he may punish summarily for the contempt. (Code Civ. Proc., sec. 1211.) He is not, like the notary in such case, a mere ministerial functionary, endowed with no power except to write down what a witness consents to say; he is the judge of the court in which the cause is awaiting trial, and he is engaged in the performance of the legitimate judicial duty of securing to a party the means of producing at the trial the evidence necessary to sustain his action or defense. What reason, then, can be urged against his power and duty to enforce obedience on the part of a witness giving his deposition that could not be urged with equal force against the right of any judge in chambers to compel a witness to answer in any other proceeding. I can conceive of none, and I am fully persuaded that if the statutes of this state relating to depositions had been from the beginning identical in all respects with those *218 that we have, except only that they had limited the power to take depositions to the judges of the courts having jurisdiction of the causes in which the depositions were to be used, it never would have entered into the brain of any lawyer to contend that the judge taking a deposition was not performing a strictly judicial duty.
The views here expressed are not in conflict with anything decided in the Lezinsky case, and are even supported by what is implied in that opinion. It is there plainly intimated that among the officers empowered to take depositions there are some who have the power to punish a refusal to testify as a contempt, and evidently this was for the purpose of parrying the force of the argument that the effect of the decision would be to put it out of the power of a party ever to secure the deposition of an unwilling witness. The officers so indicated must have been the judges having jurisdiction of the causes in which the depositions were to be used.
We think that in this case the respondent should have compelled the witness to answer, and that he had no discretion to refuse to exercise the powers with which the law invested him so far as necessary to secure to the petitioners the right which the law confers upon them to take the deposition of the defendant in the action.
When the orderly proceedings of a court have been subjected to an unseemly interruption, and the only question is whether the offender shall be punished by fine or imprisonment, in order to vindicate the dignity of the tribunal, and as an example to others, the discretion of the court to punish or to condone the offense is absolute. But where the right of a party can only be secured by committing to prison a contemner of the lawful orders of a court until he offers to purge the contempt the exercise of the power to commit becomes obligatory. In such a case may meansmust. The respondent should have compelled the witness to answer, and if necessary should have resorted to the power conferred by section
Mandamus is the proper remedy. There is no other adequate remedy, and where he has no discretion to refuse to act a judicial officer is as much subject to the mandate of a higher court as any other officer. (Merced Mining Co. v. *219 Fremont,
Let a peremptory writ issue as prayed.
Van Dyke, J., and Henshaw, J., concurred.
Concurrence Opinion
I concur in the judgment, upon the ground that the respondent, as judge of the superior court, is expressly given power by section
Rehearing denied.
Angellotti, J., and Lorigan, J., dissented from the order denying a rehearing, and the former filed the following opinion on the 8th of October, 1903: —
Dissenting Opinion
I dissent from the order denying the petition for a rehearing. It is conceded by everybody that this is not a proceeding against the superior court, but one against Hon. N.P. Conrey, a judge of such court; and also that the taking of the deposition in and about which the matters constituting the alleged contempt arose was not being had in the superior court, but, under the provisions of our code relative to the taking of such depositions, before an officer authorized to administer oaths. Under these circumstances, it appears to me to be wholly immaterial that the judge before whom such deposition was being taken was the judge of the department of the superior court in which the action on the trial of which the deposition being taken *220
might thereafter be used was pending. The taking of such deposition by the judge was no part of the trial of the action bythe court. The action is not pending before the "judge" at all. It is pending before the "court," and must be tried by the court. Such a deposition may be taken before issue is joined at all. In order to entitle the deposition to be thereafter used on the trial, it is required, whether taken before the judge of the court in which the action is pending or before any other officer authorized to administer oaths, to be taken in the manner prescribed by the section of the code relative to the taking of such depositions (Code Civ. Proc., secs. 2021, 2031, 2032, 2033), subscribed by the witness, certified by the judge or other officer taking it, inclosed in an envelope, and transmitted by the judge or other officer to the clerk of the court in which the action is pending or to such person as the parties in writing agree upon. When so taken and transmitted it may be used on the trial thereafter had, subject to all legal exceptions. The officer taking such a deposition, be he judge or notary, has no power to rule upon questions as to the admissibility of testimony, and if an objection be made, can only note the same in the deposition, and the party making the objection is entitled on the trial to a ruling from the court. In the taking of such depositions there is no distinction between the duty of the judge of the court in which the action is pending and those of any other judge or any other officer authorized to administer oaths. If the respondent has the power to punish for contempt a witness who refuses to testify upon the taking of such a deposition before him, such power is not, in my judgment, due to the fact that he is the judge of the court in which the action is pending, and I am unable to concur in the opinion of the chief justice which bases the conclusion that he has such power upon that fact. If he has such power, it appears very clear to me that every judge taking such a deposition, whether for use in the court over which he presides or in any other court, has the same power. The concurrence of Mr. Justice McFarland is based upon the opinion that every judge taking such a deposition has such power. It is conceded by all the justices that a ministerial officer taking such a deposition (and all ministerial officers authorized to administer oaths may do so) cannot punish for contempt, the *221
exercise of such a power being purely a judicial function, and this court so held in the Burns case. There is no judicial duty involved in the taking of such a deposition, whether the officer taking the same be a judge or notary public. The officer, whoever he may be, acts in a purely ministerial capacity. The statute clothes judges with the power to take and certify affidavits and depositions by the same section by which it authorizes them to take and certify the proof and acknowledgment of a conveyance of real property, and the acknowledgment of a satisfaction of judgment (Code Civ. Proc., sec. 179), and they are also authorized to solemnize marriage. (Civ. Code, sec.
Lorigan, J., concurred in this dissent. *222