The San Francisco call., 1897-08-11
and convict the citizen and deprive him of his

liberty.
Section 1891. C. C. p, provides: "Disobedl-
ence to a subpoena, or a refusal to be sworn of
to answer as witness, or to subscribe an az
hdavit or deposition When required, may oe
punished as contempt by the court or oncer
issuing the su opena or requiring the witness
to be sworn; and if the witness be party MS
com plaint or answer may be stricken out
1t may be punished con tempt by the
court or otiicer issuing the subpoena or requhlr, h
ing the witness to be sworn, PROVIDED the
officer is authorized by law to punish for con-
tempt, but as said above, many offlcers may
issue subpenas who are not authorized 10
punish for contempt.
Executive officers in this State have no such
power.
Section $685. C. C. P, provides: "In case of
failure of q witness to attend the court or
ofh"er 1ss uing the subpoena, upon proof OF the
service thereof, and of the failure of the wit
ness, may issue warrant to the Sheriff OF the
county 10 arrest the witness and bring him
before the court or officer where his attend
ance was required"
This section should be read with the same
proVlso-that the officer who issued the sub
pena had authority TO punish for contempt
we do not think that it was the intention OF
the Legislature by the enactment OF sections
1886, 1891 and 1898 of the Code OF Civil Pro-
cedure to confer upon executive officers the
power to exercise judicial functions involving
the liberty of the citizen.
H. however 1t was the intention OF the Leg
1slature to confer by these sections authority
upon every officer, executive or judicial, TO
punish for contempt it exceeded its consti-
Section OF article III OF the constitution
OF the State of California reads as follows:
The powers of the government of the State
OF California shall be divided into three sepa-
rate departments-the legislative, executive
and Judicial; and no person charged with the
exercise OF powers properly belonging to one
OF these departments shall exercise functions
appertaining to either OF the others, except as
In this constitution expressly directed or per-
mitted."
notary public is not judicial officer and
power from the courts, where it has been
vested by the cons titution, and confer it upon
notar1es public or other executive officers.
10 decide upon the legality or pertinency OF
evidence is the exercise of judicial functions.
Section l of Article VI of our constitution
reads: 1.-THE judicial power of the State sha !
be vested in the Senate sitting as a court of
Impeachment, in Supreme Court, Superior
Courts Justices of the Peace and such inferior
courts as the Legislature may establish in any
Incorporated city or town, or city and county"
The constitution having vested the judicial
power of the State in the courts and bodies
mentioned, 1t must there remain, and the Leg
1sature has no power over it. The constitu-
ton has lntrusted the life, liberty and prop.
erty OF the citizen to these tribunals and not
to notaries public or other executive officers.
Ihls question has been so ably and fully dis
cussed In recent decision of the Supreme
Court of Kansas that we deem it unnecessary,
in support of this proposition, 10 do more
than quote some of the language of that de-
cision.
In In re Huron, 4s Pacific Reporter. 574 ct
seq. il is said:
Can the notary exercise the power which
the statute purports to confer? 1t must be
conceded that to try question of contempt
ana adJudge punishment is an exercise OF
Judicial power. Has that high judicial func-
ton been vested in nota1ies public2 A ma
jority of the court are of the opinion that they
are not judicial officers and 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
judicial power of this State shall be vested In
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 [Consf., Art 3, Sec l.
1t will be observed that the judicial power is
placed in the courts expressly mentioned, and
any inferior courts that may be crea ted by the
Legislature, but is lodged in courts alone.
Until a tribunal is created which rises to the
dignity. OF court it cannot be vested with
judicial power. A notary public is not
court in the sense in which the
term is used in the constitution. He is
simply executive officer, who is
be performed by officers of that class No
limit is placed upon the number that he Gov
ernor may appoint In a county. These
duties, including the mere taking OF testi-
mony by deposition, are not judicial in their
character, and n the commercial world no
tary has been regarded 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 ana authentca ties the ties IL
mony given, with such objections as the par
ties desire to make. Up to the time of
the refusal OF the witness. at least, the notary
only an executive officer, and was exer- |
cising executive power. There is no such !
thing as contempt of executive authority
which is punishable"
In support OF this doctrine the court cites:
Whitcom BIS case, 120 Mass, $50; ex parte
Doll, z Phila., 595. Fed. 1868; in re Ma.
son, 43 Fed, $40; in re Kerrigan, 33 n J. Law,
344 Rhinehart VS.. Lance, 43 n j. Law, 81:
1t is also said in this case: 1.-The attempt of
the Legislature to confer judicial power on a
mere executive officer of the Government
must be deemed to be invalid. AS was said in
Langen berg VS.. Decker Qnd. Supp, 81 n. E.,
100: The authority to imprison resides where
the constitution places it, and the Legis ature
cannot give it residence elsewhere. 1he au-
thoriIy is essentially judltial one. abiding
in the courts of the land AS it is a
judicial power it is not created by the
Legislature nor vested in that body.
Judicial power, like all sovereign powers
comes from the people, and vests where the
peoples constitution directs that it hall vest.
The Legislature may name tri bunals that hall
exercise judicial powers, unless the constitu.
ton otherwise provides, but the power itself |
comes from the constitution and not from the !
statute See also Eastman VS.. State, 109 Ind,
27s, 10 y; E.. 81; Ley nsky vs.. Superior Court,
it must be held that notary public is not a
judicial officer, and has not been vested W tn |
power to commit and punish for contempt"
tary Lee ID. Craig had no jurisdiction to issue |
the warrants above referred to, and ii you |
should execute those warrants you would be a
wrongdoer. (Aldrrson on Judicial Writs and |
Process, pp. 459 46O.)
In answer to the second question we advise |
you to decline to serve or execute said war |
rants, and to return the same to Mr.. Craig, the |
notary. Yours respectfully,
REDDY, CAMPBELL & METsoN.
Dead in tho Sand Dunes.