The San Francisco call., 1897-08-14
POWER GIVEN
TO N0TARIES
Lee D. Craig 0beyed the
Law as He Found It
Written.
Decisions in Other States That
Authority to Punish Is Not
Unconstitutional.
An End to Taking Dispositions Be-
fore Ministerial 0 ffcers if Power to
Punish Does Not Exist.

The commitment for contempt OF Law
renee and Williams, the Examiner de-
PENDANTS, for refusing to answer certain
questions before Notary Craig presents q
question OF widespread interest to lawyers
and others. The opinion of Reddy,
Campbell & Metson rendered to the
Sheriff and the off-hand expressions of
several attorneys do not settle the ques-
tions involved. There was a great cry
made at Sacramento last winter that the
Legislature had no power to imprison a
person for contempt, but the highest
court held to the contrary. Had Sheriff
Wbelan obeyed the order of the notary
and arrested the defendants here, who re-
fused TO answer the questions before
Notary Craig, the point in dispute might
have been settled on habeas corpus pro-
ceedings There will be further testimony
taken before the notary, and refusal to
answer may be followed by com mitment
for contempt. The question is one OF
sufficient importance to be determined in
this State AS it has been elsewhere.
J. F. Cowdery is recognized as an
auth ority on the written law. His books
are quoted in the practice of law before
the courts of the country. He was asked
to explain the statutes bearing on this
question. In his explanation Mr.. Cowdery
said:
The codes of California were compiled
by a commission of lawyers who ranked
among the very best. The codes were sub.
seouently, in 1874, revised and corrected
by Judge Field of the Supreme Court of
the United States, John w. Dwinen and
Judge Catlin. They were revised and
thoroughly discussed during the two years
that intervened between their adoption
and revision, out no voice was raised
against the powers given to a notary
public to punish for contempt. The
original Civil Code contained, and now
contains this sectIon:
Section 1901. Officers authorized to take
the proof OF Instruments are authorized in
such proceedings:
l. To administer oaths or atfirmat tons as
prescribed in section 2093, Code OF Civil Pro-
cedure.
2. To employ and swear interpreters.
3. To issue su bpena as prescribed in sec tion
1886, Code OF Civil Procedure.
4. To punish for contempt, as prescribed in
sections 1891, 1898. 1894. c. c. P.
The following-named ministerial Of
fiCers have each authority to take proof
of instruments"
l. A clerk of court of record.
2 A county recorder.
3. notary public and others.
Section 1891, Code of Civil Procedure,
provides:
Disobedience TO a subpoena, or a refusal to
be sworn, or to answer as a witness
may be punished as a contempt by the court
or officer issuing the subpoena.
1t does not say, provided such officer
has power TO SO punish" That power Is
conferred by section 1901, Civil Cooe,
aforesaid.
Notary Craig was proceeding under Sec
tion 1891, Code OF Civil Proceed ure, when he
attempted to commit he witness TO the
custody OF the Sheriff. and on this point
Mr.. CoHdery said: The notary evidently
gave such authority, and also referred 10
section 1891 for occasions und Ter which
min isteriai officers might punish. In the
LeZlensky case witness refused to answer
a notary's question. A Superior Court
undertook to punish the witness because
he refused to answer the notary's ques-
ton. The Supreme Court, on review,
held that the Superior Court had no juris-
diction TO punish the witness for contempt
not of the Superior Court but OF the notary's
order.
sIf there is any inference to be drawn it is
that the Supreme Court knew that the notary
had authority TO punish cOntempts in pro-
ceedings before him in which he acted in TAX
ing deposition i'll quasi judicial capacity
and for that reason would not uphold the or
der of the Superior Court"
Mr.. Cowdery was asked: HAS this question
been raised in other States" and replied:
"Yes. In Kansas, and Ne ebraska and Missouri
it has been held by the Supreme Courts that
where the Legislature gives such power to
ministerial officers, when taking depositions
such authority is not unconstitutional"
IAa h111 tLA,
lures have 70 authority to confer such power
on notsries?'
Mr. Cowdery replied: 81 can find a few One
is Whitcomb's case, 120 Mass, p. 11S. This
shows that such questions are not to be de-
cided offhand by all classes of people, but per
tain to the high functions of the highest
courts of the State and Nation. The only rea-
son why raise my voice in this m tier is 10
protest against miscellaneous people assum-
ing judicial functions higher than those OF
our Justices OF the Peace"
1t suggested to MIR. Cowdery that in all
the interviews, including those with the Al
tornev-General OF the State and Judge Nc
kinstry, surprise was implied il not ex-
pressed, st the conduct of notary public In
assuming the robes OF high Judge, and with
out n shadow of authority consigning fellow
citizen TO a dungeon.
Mr.. Cowdery replied "There are a few
LAWYERS in San Francisco, on the bench and
elsewhere, who hold the codes in such con-
tempt that they consider it merit not TO
know anything about them. They are always
surprised at Ine contents OF the cOQeS, ana L,
having introduced the Code of Civil Pro-
cedure, as amended in 1S73-74, into the Legis-
lature, frequently feel crushed when l call
their attention TO an overlooked section. They
seem 10 ho!d me responsible because it is not
ALWAYS The same as the common law"
What do you think of the question in
volved? Has notary power to punish as for
contempt in certain cases?"
Mr., Cowdery replied: If he has not, then
who has such power in the case in which Mr..
Craig made his order? The code gave him
such power. The Supreme Court has said that
it had no such power IN a case before a notary
where witness was under examination. If a
notary cannot punish then witness need not
answer, and II witness need not answer then
there is an end TO the taking OF deposition be-
fore ministerial officers.
81 am astonisbed that so many of our emi-
nent LAWYERS were surprised that otary Craig
obeyed the law as he found 1T written. They
evidently believed that the notary should
have done what the Supreme Court refused TO
do-vz., sny that the codes are violative OF the
constl ution. In my opinion a lawyer ought
to uphold an officer when he obeys the written
law, and ministerial officer should never be
encouraged in violating statute. All statutes
should be obeyed until repealed or declared
to be unconstitutional"