The Anaconda standard. [volume] (Anaconda, Mont.) 1889-1970, 1899-10-18
Decision of Judge McIntire in the
Ramsey Case.
NOTARY HAS NOT POWER
To Commit for Contempt - His Duties
Simply Ministerial - Whitesides
Counsel May Take 1t to
the Supreme Court.
Special Dispatch to the STANDARD.

company of Helena, who has been
technically in Jail for more than two
weeks for refusing to obey the order
of Albert l. Loeb, notary public,
and bring before that official certain
books Of the bank to be used by Ram
sey while his deposition was being
taken in the damage suit of Fred
Whiteside against the Butte Miner,
was to-day discharged from the tech
nical custody that was supposed to
hedge him in. when Judge McIntire of
Department II. of the district court
announced his decision in the habeas
corpus case that grew out of the bank
ers supposed incarceration.
The court ordered that Mr.. Ramsey
be discharged holding that the notary
did not have the power to commit for
contempt. his duties while taking dep
ositions being of a ministerial rather
than of a judicial capacity. The court
considers the points raised on the ar
guments had before him when the tenn
porary writ of habeas corpus was
made returnable, and cites a number
of authorities to back up his ruling.
Counsel for Whiteside will hardly de-
sist from further effort to protect
their clients interest, and it is an
derstood will endeavor to have the SUI
preme court pass upon the ruling of
Judge McIntire. Usually there are no
appeals from actions of this character,
but the higher court sometimes grants
what is known in legal parlance as a
writ of certiorari, or writ of review,
provided that, by the showing made, it
believes there is ground for it to look
1nto the action of the lower court.
Whether the supreme court will con-
slider certiorari proceedings in this case
1-rNr tt,nf &c t-llG-
sson to believe that Whiteside's coun-
tsel will attempt to have the court
grant a hearing upon a motion to that
end. Judge McIntires decision is as
follows:
"A commission to take the testimony
of certain witnesses was issued to AL
bert l. Loeb. a notary public in and for
Lewis and Clarke county, by the dis
trict court of Silver Bow county in the
case of Fred Whitesde VS.. the Miner
Publishing company ct al. pending in
that court. The petitioner was sub
poenaed and attended before the no.
tary and testified as a witness. During
the examina ton the petitioner was ask
ed if the bank in which he is employed
kept a record book of drafts issued and
large bills received or paid out, to
which he responded that it did. Peti-
toner was then asked if he could state
without referring to the books of the
bank what, If any, one thousand dollar
bills came into the bank since Jan. l.,
1889, and prior to June l, 1899. and if so.
who paid the bills into the bank and to
whom they went out and in what
transaction. To which the witness an
! swered that he could not because the
bills We're very numerous. The peIl-
toner was then asked to produce be
fore the notary the banks large bill
register and the out of town drafts
and checks register. Counsel for the
petitioner objected to the production of
these books upon the ground that the
books We're immaterial and irrelevant,
The petitioner was ordered by the no
tary to produce the books asked for,
which order the petitioner refused to
comply with, wllereupon the notary ad-
judged him guilty of contempt and
committed him to the custody of the
sheriff of Lewis and Clarke county.
The petitioner then sued out the writ
of habeas corpus, which was argued
before this court. The sheritfs return
to the writ stated that the cause of pc
titioner's detention was by virtue OF
the order Of commitment by the notary
in the proceedings above detailed; the
return also showed the questions asked
the witness. Counsel for the petitioner
filed exceptions to the sheriff's return
as not stating facts sufficient to show
that the detention of petitioner is law
ful.
Upon the argument it was urged in
to punish for contempt is not con-
ferred upon notary in the statutes or
constitution of this state; that If such
power is conferred by the code of civil
procedure, section 1906, the statute is
unconstitutional. and that the produc-
ton of the books to refresh the mem
DRY of the witness was incompetent ana
the witness was not guilty of contempt
in his refusal to comply with the re-
quest and order.
IS. Constitution article 5, section IL,
gives the legislature power to punish
for contempt.
by code of civil procedure, section
1872 a judicial officer may punish for
contempt in cases provided in this code,
and code of civil procedure, section
2l7O, defines what constitutes a con-
tempt of court.
Judicial officers are defined in the
code of civil procedure, sections 16O to
1853.
THE constitution, article 8, section l.
provides: The judicial power of the
state shall be vested in the senate, sit
ting as a court of impeachment. in a
supreme court, district courts, justices
of the peace and such other inferior
courts al the legislative assembly may
establish in any incorporated city OF
town
THE code of civil procedure. section
1906 provides that disubedience to a
subpoena or refusal to be sworn or an
swer as a witness may be punished as
a contempt by the court or officer is
suing the subpoena or requiring the
witness to be sworn.
ITO punish for contempt is the high
est exercise of judicial power. Where
jurisdiction exists there can be no re
view notary taking dispositions act:
in a merely ministerial capacity, |
was conceded by both sides and hell
by the notary that in taking the lie
position the notary had no power t.
pass upon the materiality or compe
tency of the evidence, as that was 70
the court upon the trial of the case
and yet the witness was summaril,
committed for refusing TO produc
books claimed to be incompetent t
prove any issue in the case. The Ian
guage of the code of civil procedure
section 1906, seems to give the notaf,
power to punish for contempt con
tumacious witness.
There are numerous decisions hold
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