#### The People ex rel. Gordon McDonald, Relator, *v.*Louis Leubischer, Respondent.

(Supreme Court, New York Special Term,

May, 1898.)

Contempt — A notary public, appointed by a foreign court a commissioner to take testimony, cannot commmit a witness for refusing to answer pertinent questions.

A notary public, ¡appointed by a District Court of a foreign state as a commissioner to take the testimony 'of certain witnesses resident in the state of New: York, for use in the foreign court, has no power to commit for contempt a .witness who, when subpoenaed to appear before the commissioner by a justice .of the Supreme Court;in accordance with section 915 of the Code of Civil Procedure, refused to answer pertinent questions.

The power to punish for such a contempt, contained in sections 920 and 3001 of the Code of Civil Procedure, can only he exercised by a court.

Habeas Cospus-to procure the-discharge of the relator from arrest in proceedings for contempt.

*496William Jay (David McClure, of counsel), for relator.

John W. Hutchinson, Jr., for respondent.

Cohen, J.

On the 26th of March, 1898, a commission was issued out of the District Court of Arapahoe county, Colorado, directed to Edward J. McCabe, a notary 'public, and appointing him a commissioner, and authorizing and requiring him to* examine, among others, the above-named relator as a witness in a certain action then pending in the said District Court, and to reduce the examination to writing, etc. .

Subsequently, and on the 4th day of April, on application to one of the justices of this court under section 915 of the Code of .Civil Procedure, a. subpoena was issued-to the relator and others directing them to appear before said commissioner, at his office, to be examined, and reciting that “ *for a failure to appear*” the relator would be guilty' of a contempt of court. • McDonald 'duly appeared before the commissioner, and after having been sworn and having answered some questions, refused to answer others under the advice of counsel. The commissioner thereupon issued a commitment, signed “ commissioner and notary public,” directed to the respondent, a marshal of the city of New York, - and to the sheriff-of the county, against said McDonald, for contempt under section 920 of the Code, and'he was by said marshal taken into custody. The petitioner thereupon sued out a writ of *habeas corpus,*and the marshal having filed his return, the question now .before the court is, whether the prisoner should be discharged or remanded? The petitioner asks his discharge on the ground that he is restrained of his liberty without authority of law. As the pleadings are not before me I cannot pass upon the "materiality or the pertinency of the questions which the relator refused to answer. It is conceded that some of the questions were pertinent, and certain it is that “ the party, at whose instance the relator attended, makes oath that the testimony of the witness * * * is so far material, that without it he cannot safely proceed with the trial of the action ”, as required by o-ur Code (§ 3001). It was also' conceded on the argument that the commitment was sufficient in form provided there was any authority in the commissioner' to issue it.

It seems to me that the commissioner had no such authority. The fact that the person named' happened to be,- and is also designated as, a notary public -cannot alter the conclusion. Pow'er and *497authority were conferred upon him by the ¡District Oourt of Arapahoe county, in the state of Colorado, and by it he was made a commissioner and directed as such commissioner to take the testimony of certain witnesses.

Under section 915 of the Oode, he had no power to command the witnesses named to appear before him. That was given by statute to a judge of this court. If the position of the respondent is correct, we are confronted by a judicial officer who finds himself in this somewhat anomalous situation; with no* power to' command the attendance of a witness, he yet has the greater power to imprison him, after the witness had appeared. The Oourt of Appeals has held that it is not in the power of a justice ¡of this court, in a similar case, to hear or determine, under sections 914-920 of the Oode, an application to punish a witness for contempt. Matter of Searls, 155 N. Y. 333. But the court in its opinion expressly refrains from deciding what power such a commissioner may lawfully exercise when a witness is brought before him. It is true that it decided that a notary was a public officer (People v. Rathbone, 145 N. Y. 437), and intimated that his duties are of a judicial character (Matter of Searls, *supra),*but the latter proposition was a *dictum*and not necessary to a decision of the questions before the court in either case. We have been recently advised by that court that “ It was not our intention to decide any case but the one before us. * * * If, as sometimes happens, broader statements were made by: way of argument or otherwise than were essential to the decision 'of 'the questions presented, they are the *dicta*of the writer of the opinion and not the decision of the court. A judicial opinion, like evidence, is only binding so- far as it is relevant, and when it wanders from ¡the point at issue it no-longer has force as an official utterance.” Colonial Traction Co. v. Kingston R. R. Co., 154 N. Y. 493. This caution was given more recently still in Stokes v. Stokes, 155 N. Y. 581. But, as has been intimated, it can make no difference in this case whether the commissioner was or was not a notary public, because his powers are such as have .been conferred upon him. as a commissioner *only,*by a court of foreign jurisdiction, and other powers he has none, except such as he may lawfully derive from the statutes of this state.

It is contended that the power to punish for a contempt is com tained in sections 920 and 3001 of the Oode, which are as follows:

*“*Section 920. A person who fails to appear, at the time and *498place specified in a subpoena, issued as prescribed in this article, and duly served upon him; or to testify; or to subscribe his deposition, when correctly taken' down, is liable to the penalties, which would be incurred in a like case, if he was subpoenaed to' attend the trial of an action in a justice’s court; ¡and for that purpose, the officer, before whom he is required to appear, possesses all the powers of a justice of the peace upon a trial.” "

*“*Section 3001. Where a witness, attending before a justice' [of the peace] in an action, refuses to be sworn or affirmed in the form prescribed by law or to answer a pertinent and proper question, or neglects or refuses to produce a book or paper which he has been duly subpoenaed to produce, as prescribed in section 2969 of this act, or duly required to produce by an order, made as prescribed in section 867 of this act, and the party at whose, instance he attended makes oath that the testimony of the witness, or the book or paper, is so far material that without it he cannot safely proceed with the trial of the action, the justice may, by warrant, commit the witness to the jail of the county.”

*<*Is this contention correct? It may be stated, as a general propor sition, that the power to punish for contempt is judicial in its nature, and is an *incident*of a court only. Wilckens v. Willet, 1 Keyes, 521; People ex rel. McDonald v. Keeler, 99 N. Y. 463. Indeed, the subject of contempt is treated by. the Code itself as “ a power and attribute of the courts” (Art. 6, chap. 1; title i, art. 2), and in article first is contained an enumeration' and classification of the courts referred to in the Code;. I can find no mention of this commissioner’s court, or of its powers or jurisdiction, either in the sixth article of the Constitution or the statute law of this state.

The power to punish.for contempt is so closely guarded that it is not even given to Congress or the Legislature of this state, except in so far as it is auxiliary to the' legislative power only. Kilbourn v. Thompson, 103 U. S. 168; People ex rel. McDonald v. Keeler, *supra.*

I cannot, therefore, regard the respondent’s position as sound, as it would.follow that the Legislature gavei to= an individual with no judicial function, except possibly to pass on the pertinency of a question, the power to punish for a contempt of a court which is. not known to the laws of this state

But it may be said that the Legislature so clearly intended! that, for the purposes of comity between the states, a person designated by a court of another state should have the power to deprive a *499citizen of this state of his liberty, that there is no room for judicial construction. If such, were the purpose and intent, such legislation is a violation of the Bill of Rights as embodied in section 6 of article 1 .of the Constitution, which forbids that anyone shall be deprived of liberty without due process of law.

*“*This provision is the most important guarantee of personal rights to be found in the federal or state Constitutions. It is a limitation upon arbitrary power and is a guarantee against arbitrary legislation. No citizen shall be arbitrarily deprived of his. life, liberty or property. This the legislature cannot do, nor authorize to be done. * * * This great guarantee is always and everywhere present to protect the citizen against interference with these sacred rights.”

This is a characterization of the term “ due process óf law ” by Judge Earl in Stuart v. Palmer, 74 N. Y. 183, and tested by it, has this relator been deprived of his liberty by *“*due process of law? ” Let us consider what the effect of such an adjudication would mean. By the designation of a court in another state of a commissioner, he may set up his office here and his court and by virtue of his authority imprison anyone of our citizens. This commissioner, if he happens to be a notary public, may be one of over 4,000 of our citizens; if he be not a notary, he may be one of the six and a half million inhabitants of this state, whether citizen or alien; he even may be an inhabitant of any of the United States or of a foreign country (§ 814). By the Oode provisions hereinbefore referred to, without any knowledge of his character or intelligence or citizenship, the Legislature stamps its authority on such an individual, establishes a court over which he shall be judge, and bestows as an incident of his judicial office the grave power to punish for contempt.

This brief recital of possibilities makes clear the arbitrary character of such legislation and its reckless disregard of the liberty of our citizens.

.1 am impressed in reaching this conclusion by the wisdom of r. Justice Miller in leaving *“*the meaning of the term *‘*due proess of law ’ to be evolved by the gradual process, of judicial infusion and exclusion as the cases presented for decision shall reuire with the reasons on which such decisions may be founded.” Davidson v. New Orleans, 96 U. S. 97.

There is a decision of this" court on the question here presented, n the Matter of Bloomingdale, February, 1879, N. Y. Monthly *500Law Bulletin, vol. 1, it was held, without further statement of reasons, that a similar commitment was void and without authority. I am but following.that ruling; as, however, the determination of the question presented is far reaching and important in its consequences, the relator’s counsel must stipulate to argue the appeal, during the present term of the Appellate Division, from any order that may he entered on this decision.

The prisoner is discharged.

Ordered accordingly.