AUTHORITY OF COMMISSIONER. TO COMMIT FOR CONTEMPT IN REFUSING TO ANSWER.

Court of Appeals for Hamilton County.

#### Schott, Sheriff, v. Benckenstein et al.*

Decided, March 18, 1915.

*Depositions*— Commissioner *Appointed by a Court of Another*State— *Witness Refusing to Answer Guilty of Contempt.*

A'commissioner, bearing a commission from a court of another state authorizing him to take depositions in this state, can compel the giving of testimony by committing to jail for contempt a witness who refuses to be sworn.

*Maxwell & Ramsey,*for plaintiff in error.

*Bruce & Bruce*and *S. A. Headley,*contra.

*

 Affirmed, *Benckenstein*v. *Schott, Sheriff,*92 Ohio State, 29.

Jones (E. H.), P. J.

The sole question presented to this court in this case is whether or not a commissioner bearing a commission from a court in the state of New York, authorizing him to take depositions in this state, can compel the giving of testimony by committing to jail for contempt a witness who refuses to be sworn.

It is well settled by the case of *DeCamp*v. *Archibald,*50 Ohio St., 618, that a notary public of Ohio before whom depositions are being taken for use in Ohio can commit to jail a contumacious witness. This authority is unquestionably conferred upon such notary by Section 11510, General Code, which reads as follows:

> “Section 11510. Disobedience of a subpoena, a refusal to be sworn, except upon failure to pay fees duly demanded, and an unlawful refusal to answer as a witness or to subscribe a deposition, may be punished as a contempt of the court or officer by whom the attendance or testimony of the witness is required. ’ ’

And Sections 11529 and 11530, General Code, provide:

> “Section 11529. Depositions may be taken in this state before a judge or the clerk of the Supreme Court, a judge or' clerk *414of the court of appeals, a judge or clerk of the court of common pleas, a probate judge, justice of the peace, notary public, mayor, master commissioner, official stenographer of any court in this state, or any person empowered by a special commission.

> “Section 11530. Depositions taken in .and to be used in this state, must be taken by an officer or person whose authority is derived within the state; but, if for use elsewhere, they may he taken before a commissioner or officer who derives his authority from the state, district or tei’ritory in which they are to be used.”

The answer to the question propounded to us depends wholly upon the construction of these and other sections contained in Part Third, Title 4, Division 3, Chapter 3 of the General Code, and particularly upon the meaning to be ascribed to the word “officer” as used in Sections 11510, 11530, 11543 and others of said chapter. In the latter section the word “officer” certainly includes one appointed under a special commission to take testimony in another state for use in a court in this state. It follows that the word ‘ ‘ officer, ’ ’ used in Section 11510 of the same chapter, in like manner includes the commissioner who may be appointed under Section 11530 to take depositions to be used elsewhere. The word “officer,” as used in this chapter, can not be limited to magistrates and others who have taken an oath, given bond, etc., as argued by counsel. In order to make the statutes on the subject consistent and effective, it is obvious, we think, that the word “officer” must be held to include all persons authorized to take depositions.

"We are,.therefore, of the opinion that the word “officer” as used in Section 11510 was intended to and does embrace a commissioner'appointed by a court of another state to take testimony in Ohio. Such being our construction of this section, it follows that the commissioner so appointed has power to punish as a contempt an unlawful refusal to answer as a witness or to subscribe to a deposition.

It is argued that, adopting the above construction, the Law is unconstitutional for the reason that the power to punish for contempt is a judicial power which under our Constitution can be conferred only upon a court. This point has been passed upon by our Supreme Court in the case of *DeCamp*v. *Archibald, supra.*We quote from the syllabus, as follows:

> *415'“The power conferred by 'Sections 5252 and 5254, Revised Statutes, on a notary, or other officer, in taking depositions, to commit a witness to the jail of the county for refusing to answer a question, is not judicial in the sense of the Constitution, conferring all judicial power upon the courts of the state. ’ ’

The judgment of the lower court will therefore be reversed and the defendants in error remanded to the custody of the sheriff.

Judgment reversed.

Jones (Oliver B.), J., concurs.

Gorman, J.,

dissenting.

I find myself unable to concur in the conclusions of my associates as to the right of the commissioner in this case to commit for contempt.

Section 11510, General Code, provides that a refusal to answer may be punished as a contempt of the court or officer by whom the attendance or testimony of the witness is required. This section provides, therefore, only for the punishment by the *court or an officer.*An officer within the meaning of this section means an *officer of the state of Ohio;*and under Section 2, General Code, a commissioner who .derives his authority from a state other than this state *is not an officer of the state of Ohio.*

While a commissioner appointed by authority of another state may take depositions in this state, under favor of Section 11530, General Code, I am of the opinion that the Legislature has simply recognized his right to take depositions in this state when the witnesses appear voluntarily and consent to give their testimony. I do not think that any person can have the power and authority to deprive a citizen of this state of his liberty, unless he be *an officer of this state duly authorized so to do*or a- court of this state.

The appellate division of the Supreme Court of New York, in the ease of *People, ex rel MacDonald,*v. *Leubuscher,*34 App. Div., 577 (54 N. Y. Supp., 869), held: That under the Constitution of the United States (Amendment 14, Section 1), providing that no state shall deprive any person of life, liberty, or *416property without due process of law, Section 920, Code Civ. Pro., providing that a person .who refuses to testify before a commissioner appointed .to take depositions “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 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 the trial, ’ ’• — who, under Section 30)01, has power to imprison a witness for refusal to testify before him — is unconstitutional- as applied to a commissioner appointed by a cqurt of another state take depositions in that state, and who seeks thereunder to imprison for contempt.

It is also true that Judge Sayler, while on the common pleas bench, in the ease of *In re Goodman,*7 N. P., 201, tookthe same view of the ease pending before him as I take in this case;' In' the Goodman case he discharged on habeas corpus a witness who was committed by the commissioner appointed by the surrogate court of New York to take testimony in this city. He was of the opinion that the commissioner was not an officer of Ohio, and therefore not authorized to commit for contempt.

The Supreme Court of Kansas, in *In re Huron,*58 Kans., 152, laid down tlie same rule as the New York appellate division of the Supreme Court in the case above cited.

Our Supreme Court in the case of *DeCamp*v. *Archibald,*50 Ohio St., 618, held that a witness before a notary public, where depositions were being taken to be used in an action pending in this state and in this county, could be committed by the notary, and that the notary had power to commit for contempt of court. But we think that case is distinguishable from the one at bar because a notary public is an officer of this state. He is duly appointed and commissioned by the Governor, is obliged to give bond and take an oath of office, as all officers are required to do under Section 2, General Code.

For the reasons stated I am of the opinion that the judgment of the court of common pleas in discharging defendants in error should be affirmed.