The San Francisco call., 1897-08-11

d
reputable and high- minded citizen whose
personal and com mercial character he has
dssalled. He relies on his agents, backed
oy counsel aud the terror which he fancles
that his California paper can produce, TO
irlghten notaries, alarm Sheriffs and IN
timldate officers in the discharge OF pub
llc duty. He has had long career OF
success in esca ping the full measure OF
responsibility for the conduct OF his paper.
IL happens now that he has man to deal
with who possesses frmness OF character
and whose career has not the slightest
stain OF scandal. The old and familiar
tactlcs OF digging up some unpleasant
feature OF the past to frighten the plaintiff
cannot be employed. The plaintiff is not
candidate for public office. He has no
ambitions for Hearst to shatter. He rec
ognlzes it to be his duty to protect his
personal characte and his commercial in
tegrlty from assault in the public press.
he has chosen to go into court for the re-
dress, and if the law has not lost its force
In the land he will bring his defamer to
the bar of justice.
Many citizens of prominence and char
acter who have been assalled in the same
manner that Mr.. Spreckels was attacked
take deep interest in the pending
proceedings. They note the attempt
to bully and frighten the notary.
One man was frightened and with
drew from the bond OF the notary.
scene was made rt the County Clerks
ofhce because decree of default was en-
tered against two of the defendants. The
Sheriff accepts a weak opinion as an ex-
cuse for refusing to perform his duty.
Men OF character and thought reflect when
they observe this falling down and ask if
the law is at fault or if the fault is with
those elected or appointed to enforce the
law.
Hearst's conduct is regarded as cowardly
IN the extreme. His counsel and his en-
ployes have implored him to accept serv-
ice and make his fight in court, but he
still shrinks from the responsibility and
fears to authorize anybody to represent
him. He has acquired residence in New
York and fancies that he can slander mer
chants in San Francisco at his pleasure.
Following is the text of the opinion
which Patrick Reddy gave to the Sheriff
yesterday:
Richard l. Whetan, Sheriff Of the Cdty and
County Of San Francisco, NelO city Hall, City
DEAR SIR: We have examined the commit
ment and warrant of arrest of 4. I. Williams,
and also the commitment and warrant of ar
rest OF A. M. Lawrence. issued In the case of
Spreckels VS.. Hearst ct al, by Lee D. Craig, no.
tary public, and placed in your hands for SER
vice, and in answer TO your questions:
l. Has notary pubic jurisdiction or au-
thorlty TO issue such warrant? and
2. Is it your duty under the law to execute
such warrant?
We have 10 say: In answer 10 your fIstques-
ton, 1t is our opinion that notary public
has no such thority.
In Lezynsky VS.. Superior Court, 70 Cal, 512
the court held that the Superior Court had no
power to punish person for contempt becau use
he had refused to obey the subpoena OF
notary public, and had refused to answer, Tor
the reason that such acts did not constitute
contempt of court, or were not with the pro-
visions OF subdivision 10 of section 1909 ot the
Code OF Civil Procedure, defining contempt of
court; that that provision OF the law has
reference to courts of justice and not to
notaries, and that if such acts constituted a
contempt 1t was OF the notary, and not of the
court.
We think it should go without saying that
notary public has no power to punish for q
contempt OF court The court itself can attend
10 such matters without the aid of notary
pub ic.
We do not fnd-after what we conceive to
be d thorough examination-any law defining
such an offeuse as contempt OF a not tary pub
pubic can convict and punish he must find
some express authority for the exercise of
such an extraordinary power
In the case last cited the court declines to
decide whether notary has power to pun ish
for contempt, for the reason. evidently, that
that question was not involved
The only question there was whether the
Superior Court had power to punish as O con-
tempt the acts described.
The authority of the notary to issue a sub
pena requiring attendance before him for the
Of Etr,or Citio 4
subdivision of section 1886 of the Code OF
Civil Procedure, and is given to notaries in
common with all officers authorized to ad-
minister oaths or to take testimony in any
matter under the laws OF this State.
Under section 2031 of the Code of Civil Pro-
cedure: Either party may have the deposi-
tion taken of witness in this State -
before Judge or officer authorized to admin
is ter oa ths."
From this it will be seen that deposition
may be taken before any officer authorized to
administer oaths.
Who are authorized to administer oaths?
Every court, every Judge, or clerk of any
court, every Justice, and every notary public
and every officer or person authorized to take
testimony in any action or proceeding, or to
decide upon evidence. has power to admins
ter oaths or affirmatlons." &C. c. P, section
2O93.)
section 1923 of the Political Code provides:
every executive and judicial officer may ad-
minister and certify oaths."
Under these provisions every public officer
in this State, from the highest to the lowest,
has authority to take dispositions.
Under section 2031, C. G. P, a notary public
is not given any higher or greater power or
auth ority in respect to taking a deposition
than the lowest executive officer in the State.
The party has the right to select from all of
these officers the one before whom the deposi.
tion shall De taken.
''And if party selects, out of the officers
before whom dispositions may be TAKEN one
who cannot punish for contempt. he puts him.
sell, so far as that method of enforcing the at
tendance OF his witnesses is concerned, out of
the reach OF legislative grace, and must rely
upon the provisions that the disobedient wit
ness forfeits to the aggrieved party 800 and
all damages sustained by his failure to attend,
and that If he be party, his complaint or
answer may be stricken out" Nezynsky VS..
Superior Court, ~ CAL, 512.)
From this language it plainly appears to us
that there are officers authorized to take depo-
s1tions who have not the power to punish for
contempt. This must be so, else every Of
icer lullnial ira from the hiuhaSt