In re George A. Huron

• Citation: 48 P. 574,58 Kan. 152
• Decision Date: 10 April 1897
• Docket Number: 10802
• Parties: In re GEORGE A. HURON, Petitioner
• Court: United States State Supreme Court of Kansas

48 P. 574

58 Kan. 152

In re GEORGE A. HURON, Petitioner

No. 10802

Supreme Court of Kansas

April 10, 1897

Decided January, 1897.

Original proceeding in habeas corpus.

David Overmyer and S. B. Bradford, for petitioner.

Troutman & Stone and Thomas Berry, for respondent.

OPINION

JOHNSTON, J.

A subpoena was issued by a notary public of Shawnee County and served upon George A. Huron, the petitioner, requiring him to appear before the notary and give testimony in a cause then pending in Franklin County. He appeared in obedience to the subpoena, but refused to be sworn: First, because he was a defendant in the action and an attorney of record, and expected to be present at the trial; and, second because the attempt to take his deposition was not made in good faith, or with any intention of using the deposition when taken, but was for the mere purpose of ascertaining in advance the line of defense and testimony of the defendants. An affidavit in behalf of the plaintiff was then filed, alleging good faith, and that the depositions were intended to be used upon the trial of the action and in an application for a receiver; and, further, that the witness was a non-resident of the county where the action was pending. The petitioner still persisting in his refusal to testify, the notary held him guilty of contempt, and ordered that he be committed until he should be willing to be sworn and to give his deposition. He petitions for release, insisting that the case was not one in which his deposition could be taken, and, further, that the notary public had no authority to compel him to testify.

As the petitioner does not reside in the county where the action is pending, the plaintiff was clearly entitled to take his deposition (Civil Code, § 346); and the fact that he has been named as a defendant, or that he is an attorney of record in the case, will not prevent the taking of his deposition. No such exceptions are expressed or implied in the statute. But, while these objections are not tenable, there remains the more important question whether a notary public may punish a witness for contempt in refusing to be sworn or to give his deposition. "By section 348 of the Civil Code, the general power, without any exception or limitation, is given to notaries public to take depositions." Swearingen v. Howser, 37 Kan. 126, 14 P. 436. Other provisions of the Code are, that the officer authorized to take depositions may issue subpoenas requiring witnesses to attend before him and give their depositions, and that the disobedience of a subpoena, or the refusal to be sworn and to answer as a witness, or to subscribe a deposition, when lawfully ordered, may be punished as a contempt of the court or officer by whom his attendance or testimony is required. If the witness fails to attend, provision is made for the issuance of an attachment commanding the arrest of the witness, and that he be brought before the court or officer. The punishment for the contempt, where the witness fails to attend in obedience to a subpoena, is a fine not exceeding fifty dollars. In other cases, the court or officer may imprison him in the county jail, there to remain until he shall submit to be sworn, testify, or give his deposition. Civil Code, §§ 326-332. Can the notary exercise the power which the statute purports to confer?

It must be conceded that to try a question of contempt and adjudge punishment is an exercise of judicial power. Has that high judicial function been vested in notaries public? A majority of the court are of opinion that notaries public are not judicial officers, and that they cannot arrest and punish for contempt. The view of the court is, that the whole judicial power of the State is vested by the Constitution, and can only be vested in such tribunals as are therein prescribed. It provides that "the judicial power of this state shall be vested in a Supreme Court, district courts, probate courts, justices of the peace, and such other courts inferior to the Supreme Court, as may be prescribed by law." Constitution, art. 3, § 1. It will be observed that the judicial power is placed in the courts expressly mentioned and any inferior courts that may be created by the Legislature; but is lodged in courts alone. Until a tribunal is created which rises to the dignity of a court, it cannot be vested with judicial power. A notary public is not a court in the sense in which the term is used in the Constitution. He is simply an executive officer, who is chosen with reference to the duties to be performed by officers of that class. No limit is placed upon the number of notaries the Governor may appoint in a county. The general authority conferred is to take proof and acknowledgment of deeds and instruments in writing, to administer oaths, to demand acceptance and payment of commercial paper and protest the same for non-acceptance or non-payment, and to exercise such other powers and duties as by the law of nations and commercial usage may be performed by notaries public. Gen. Stat. 1889, P 3927. These duties, including the mere taking $ 155 of testimony by deposition, are not judicial in their character; and in the commercial world a notary has not been regarded as a judicial officer. While the taking of testimony is incidental to a judicial proceeding, the notary, in taking the deposition, is not required to determine the relevancy and competency of testimony, but simply writes and authenticates the testimony given, with such objections as the parties desire to make. He is not designated as a court, nor clothed with the usual paraphernalia of such a tribunal. A court is said to be a tribunal organized for the public administration of justice at a time and place prescribed by law. No provision is made for pleadings, nor for the issuance of process by a notary, except to subpoena a witness to give his testimony. If the witness refuses to be sworn or to testify and is deemed subject to a charge of contempt, no rules are prescribed for a trial before the notary, nor is specific provision made for obtaining evidence in order to determine whether such witness is actually guilty of contempt. Up to the time of the refusal of the witness, at least, the notary is only an executive officer, and is exercising executive power. There is no such thing as a punishable contempt of executive authority. While an executive officer might be constituted a court, judicial power cannot be conferred on him as merely ancillary to the exercise of purely executive power. It is true that in In re Abeles (12 Kan. 451) it was stated that a notary might commit a recusant witness for contempt, but it does not appear that the constitutional phase of the question received much consideration, and the decision is not deemed to be controlling. It has since been accepted without serious dispute, and has been followed in other cases without much discussion. It is, therefore, the view of the court that the question has not before been authoritatively settled. Not every one who hears testimony and exercises discretion and judgment in a matter submitted to him is necessarily a judicial officer; and whether notaries public have the attributes and powers of courts is to be determined from the Constitution. Anciently, such officers were not clothed with judicial power; and when the Constitution was adopted they were not regarded as having power to punish for contempt, nor as being in any sense judicial officers. In Whitcomb's Case (120 Mass. 118), it was contended that a city council had such power. The statute undertook to confer it, but it was held to be ineffectual. It was said that under the common law a city council had no such power, and that, when the Constitution of the Commonwealth of Massachusetts was adopted, it was not part of the law of the land that municipal boards or officers had power to commit or punish for contempt. It was, therefore, held that they were not to be regarded as a part of the judiciary, and that a statute which undertook to confer such authority upon them was unconstitutional and void. It is asserted that, when our Constitution was adopted, notaries were not understood to have judicial power, and therefore were not within the contemplation of the people in providing for the creation of courts. In Ex parte Doll (7 Phil. 595), it was held that a United States Commissioner had not been given authority to arrest and punish recusant witnesses for contempt; and the judge, in disposing of the case, remarked that he very much doubted the power of Congress to invest a commissioner with such power. See, also, In re Mason, 43 F. 510; In re...