Ex Parte Wolf

• Citation: 34 S.W.2d 277
• Decision Date: 15 October 1930
• Docket Number: No. 13578.,13578.
• Parties: Ex parte WOLF.
• Court: Court of Appeals of Texas. Court of Criminal Appeals of Texas

Page 277

34 S.W.2d 277

Ex parte WOLF.

No. 13578.

Court of Criminal Appeals of Texas.

October 15, 1930.

Motion to Reinstate Denied January 21, 1931.

Commissioners' Decision.

Original application by Albert G. Wolf for writ of habeas corpus.

Application dismissed.

John M. Corbett, of Bay City, W. H. Wilson and John E. Green, Jr., both of Houston, and Oswald S. Parker, of Beaumont, for applicant.

James R. Dougherty, of Beeville, David M. Picton, Jr., and Wm. G. B. Morrison, both of Houston, and A. A. Dawson, State's Atty., of Canton, for the State.

MARTIN, J.

This is an original application to this court for a writ of habeas corpus. Relator was restrained of his liberty by the sheriff of Harris county, under an order directed to such sheriff by A. J. Rosenthal, a notary public of Harris county, Tex. His imprisonment as shown by the record was occasioned by his refusal to answer certain oral interrogatories propounded to him before said notary public, who was at the time acting under a commission issued out of the district court of Wharton county in cause No. 9292, styled Texas Gulf Sulphur Co. v. T. M. Neal et al. on the civil docket of said court.

It is here contended, and very convincingly argued, that the act of the notary public in adjudging relator to be in contempt, fining him $25, and ordering his imprisonment in the county jail for three days and "until such time as the said Albert G. Wolf shall have purged himself of such contempt by answering said interrogatories," was void. Among other constitutional reasons given is that a notary is denied the right to exercise any judicial power by the terms of article 5, § 1, of the Texas Constitution, that a notary public is not a "court" and cannot, as was done in this case, assume to perform judicial functions.

We are met at the threshold of this controversy with a line of decisions by this court which has uniformly refused to entertain jurisdiction of an application for a habeas corpus writ which grew out of proceedings incident to a civil case. We quote from some of these:

From Ex parte Cummings, 75 Tex. Cr. R. 71, 170 S. W. 153, 154:

"In this case the questions raised are: First, that the information sought is not evidence to be perpetuated, but information on which to base a suit—a proceeding in the nature of a common-law bill of discovery; second, that a notary cannot commit one to jail for refusal to answer interrogatories propounded to him. These questions are mainly incident to civil proceedings, and have very little, if any, connection with criminal matters, and as the commitment grows out of a writ issued in a civil proceeding, we think the appeal should be to the Supreme Court, and not this court, for the reasons stated in the Mussett and Zuccaro Cases [72 Tex. Cr. R. 487, 162 S. W. 846; 72 Tex. Cr. R. 214, 162 S. W. 844], supra. The pleadings raise the right to bring a civil action of the character instituted in this suit, as well as the constitutionality of the statute authorizing notaries to imprison for contempt."

From Ex parte Albritton, 87 Tex. Cr. R. 453, 222 S. W. 561:

"The relief will not be granted, for the reason that the Supreme Court is by statute given authority to entertain applications for writs of habeas corpus in cases in which the restraint grows out of a civil case. Revised Statutes, art. 1529. In deference to this statute, and the reasons that impelled the Legislature to enact it as stated, in various decisions of this court, it has refrained from granting writs of habeas corpus in cases of contempt growing out of the alleged disobedience of an order entered in a civil case. Ex parte Houston 219 S. W. 826; Ex parte Alderete 203 S. W. 764; Ex parte Gregory 210 S. W. 205."

From Ex parte Little, 83 Tex. Cr. R. 376, 203 S. W. 766:

"Proceedings under this statute we regard as civil in their nature. Instances are numerous in which this has been declared. See cases cited in Miller v. State 200 S. W. 391, motion for rehearing; Ex parte Singleton, 72 Tex. Cr. R. 122, 161 S. W. 123; Ex parte Reed, 34 Tex. Cr. R. 9, 28 S. W. 689; Legate v. Legate, 87 Tex. 248, 28 S. W. 281; Ex parte Reeves, 100 Tex. 617, 103 S. W. 478. The Supreme Court is given jurisdiction of habeas corpus proceedings growing out of a civil cause. See article 5, § 3, of the Constitution, and Rev. Civ. St. 1911, art. 1529. While this court also has jurisdiction to issue a writ of habeas corpus, when one is illegally restrained of his liberty (art. 5, § 5, of the Constitution), we will not exercise it as against an order made in a civil case, but will relegate the applicant to the pursuit of his remedy in the courts of civil jurisdiction. Ex parte Alderete 203 S. W. 763; Ex parte Mussett, 72 Tex. Cr. R. 487, 162 S. W. 846."

The instant case furnishes, if such is needed, a compelling reason for adherence to the rule announced in the above cases. Of the proceedings in the civil case out of which this controversy arose, we have here only its number and style. If, however, we were furnished all data needed to properly appraise the issues and the materiality and relevancy of testimony concerning these, and other elements which might in some cases enter into the question of the legality of a commitment, we ought manifestly not go into such matters, as we might find ourselves in conflict with the civil courts, and thus interfere with their proper functioning and the administration of justice.

Of course, if it is plainly apparent that a notary public has no authority under the law to imprison for contempt in any case and that to so hold could not put us in opposition to the civil courts nor hamper the administration of justice in these, it would, we think, be our duty to assume jurisdiction of this case. An investigation of this question has not convinced us that such a power has been withheld by the Constitution and statutes from a notary public. If such question involves a construction of constitutional provisions and statutory enactments, any express decision by us in a matter which pertains strictly to a civil case would not be binding upon the Supreme Court and, if in opposition to its views, might lead to confusion. In order to demonstrate only that it is not plain and certain that the act of the notary public in this instance was utterly void, we make the following observations:

Article 4, § 26, of the Constitution of Texas, provides:

"The governor, by and with the advice and consent of two-thirds of the senate, shall appoint a convenient number of notaries public for each county, who shall perform such duties as now are or may be prescribed by law."

The language "as now are or may be prescribed by law" is of particular significance. The right of a notary public to imprison for contempt is expressly given by article 3748, R. C. S. 1925, and such right existed at the time of the adoption of our present Constitution and had for many years prior thereto, as shown by the language of legislative enactments made prior to 1876 almost identical with that of article 3748, supra. See Hartley's Digest, art. 726; Paschal's Digest, art. 3727. If the right of a notary public to imprison for contempt existed at the time the above language was inserted into the Constitution "who shall perform such duties as now are * * * prescribed by law," then it may be plausibly contended that the Constitution itself conferred such power. Of the cases which deny this right to a notary public, the two apparently relied on by relator and which seem to be the leading cases in the United States are those of In re Huron, 58 Kan. 152, 48 P. 574, 36 L. R. A. 822, 62 Am. St. Rep. 614, and Whitcomb's Case, 120 Mass. 118, 21 Am. Rep. 502. We take the following significant language from each of these cases:

"Anciently such officers were not clothed with judicial...