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charging the prisoner for the irregular proceeding of the commissioner, inter alia, said that 'he very much doubted even the power of Congress to invest a commissioner with the authority in a proceeding originally instituted before him to summarily commit a citizen for an alleged contempt. This was an exercise of the judicial power of the United States, which, under the constitution, could not be intrusted to an officer appointed and holding his office in the manner in which these commissioners were appointed and held their offices.' In the celebrated case of Kilbourn v. Thompson, involving the question of the power of the Congress to arrest and punish a witness for contempt (103 U. S. 168, 23 L. ed. 377), in refusing to answer questions before a committee of the house, Justice Miller, speaking for the court, among other things said: "The constitution says that no person shall be deprived of his life, liberty, or property without due process of law; and it has been repeatedly held by the United States supreme court that this means a trial in which the rights of the party shall be decided by a court of justice appointed by law, and governed by the rules of law previously established'": In re Mason (D. C.), 43 Fed. 510. Although the recorder of the city of Hoboken, New Jersey, had all the powers that justices of the peace throughout the state possessed as committing magistrates, the court, in discharging on habeas corpus a prisoner 349 found guilty of contempt, employs the following language: "To punish by a commitment for contempt is a power belonging only to judges of certain courts, and does not arise from the mere exercise of judicial functions. The power is great, and its exercise without review, where there is jurisdiction, and hence our duty to be careful not to extend it beyond the recognized bounds of the common law. The recorder did not commit in default of sureties to keep the peace, or to answer before the oyer or sessions, but his commitment was in execution by way of punishment. That power, so far as it may be exercised by . judicial officers, is an incident to a court, belonging alike to courts of civil and criminal jurisdiction, but not extending. at common law, below such as are courts of record recognized in the common law. The general doctrine of the English law is that all courts of record may fine or imprison for contempts in the face of the court. . . . . And as early as Griesley's Case, 8 Coke, 33, it was resolved, in the common pleas, that courts which are not of record cannot impose a fine or com

mit any to prison for contempts. A power to fine or imprison in such cases, although necessary for the proper discharge of the duties of a court not of an inferior jurisdiction, and for the maintenance of its independence and dignity, should not belong to all persons, bodies, or tribunals who may have a judicial duty to perform. The common law wisely did not recognize it in courts below those of record; and we would be doing violence to the liberty of the citizen to encourage its existence in any of our own courts, except that, in their very nature, or from analogy to their English models, or in their constitution, are courts of record, with jurisdictions not beneath the character of those so treated in the common law": 350 Matter of Peter Kerrigan, 33 N. J. L. 344. The headnote, fully supported by the opinion, in the Matter of George N. Farnham, 8 Mich. 89, is as follows: "A magistrate having jurisdiction, under chapter 194 of the Compiled Laws, to examine and commit for trial, or to hold to bail, persons charged with crimes not cognizable before a justice of the peace has no power to commit a witness for refusing to testify on such examination. He has no powers except such as are expressly conferred by this chapter."

Sections 140 and 512 of the Revised Code of Criminal Procedure make it obligatory on the part of the magistrate to issue a subpoena for any witness required by the defendant, and, if any books, papers, or documents are needed, such subpœna must direct the witness to produce them at the preliminary hearing. Section 518 is as follows: "Disobedience to a subpoena, or a refusal to be sworn or to testify may be punished by the court or magistrate, as for a criminal contempt, in the manner provided in the Code of Civil Procedure." Section 495 of such code, which provides the means of producing witnesses, is the provision of the Civil Code fixing the penalty for contempt, and reads as follows: "The punishment for the said contempt shall be as follows: When the witness fails to attend, in obedience to the subpoena, except in case of a demand and failure to pay his fees, the court or officer may fine the witness in a sum not exceeding fifty dollars. In other cases the court or officer may fine a witness in a sum not exceeding fifty dollars nor less than five dollars, or may imprison him in the county jail, there to remain until he shall submit to be sworn, testify or give his deposition." Now Now the writ granted and subsequently quashed by the circuit court 351 was not a mandamus to com

pel the witness to "submit to be sworn, testify, or give his deposition," but, according to its recitals, to "compel the said witness, William H. Parker, by punishment for contempt, to produce at said hearing all of said statements, dying declarations, and stenographic notes," and the statute has provided no penalty for disobedience that can be exercised by the examining magistrate.

It follows that the alternative writ of mandamus was properly quashed and the order appealed from is affirmed.

CORSON, P. J., Concurring Specially. I concur in the conclusion that the order of the circuit court should be affirmed on the last ground stated in the opinion, namely, that our statute providing for the punishment of contempts has not provided for punishing as for a contempt a refusal of a witness to produce documents called for under a subpoena duces tecum issued by a committing magistrate. The respondent, therefore, in denying plaintiff's motion to punish the witness for his refusal to produce the statement described in the alternative writ of mandamus by proceedings for contempt, did not violate any duty imposed upon him by the statute or the common law.


I. Courts of Record and of General Jurisdiction.

a. The Power is an Incident to Judicial Authority, 950.

b. National Courts, 952.

II. The Inferior Courts.

a. The General Rule, 953.

b. Probate and Surrogate Courts, 954.

c. Justices of the Peace and Other Magistrates of Similar Rank, 955.

d. Municipal Courts, 955.

III. Judges of Courts, 956.

IV. Various Agencies of Courts.

a. Commissioners and Referees, 957.

b. Notaries Public, 958.

c. Grand Juries, 958.

V. Restriction of the Power of Courts to Contempts of Their Own Authority, 958.

VI. Jurisdiction is not Devested by Implication, nor the Granting of Concurrent Authority or Remedy, nor the Making of an Act Criminal, 959.

VII. Legislative Control of, 959.

I. Courts of Record and of General Jurisdiction.

a. The Power is an Incident to Judicial Authority.—It is difficult to conceive of judicial proceedings without some power in the

tribunal conducting them to preserve order during their progress and to enforce respect to judgments and orders resulting therefrom. The most effective remedy for both is by punishment for contempt. The power of inflicting such punishment may well be regarded as an essential element of judicial authority, necessarily conferred by a general grant thereof. Therefore, if, as in the several states of the United States, courts are created by their constitutions and judicial power is given to them, this includes the power to punish for contempt. In this sense, the power of courts with reference to the subject of contempt is said to be inherent. This power is sometimes held to have been adopted as a part of the common law: Stephenson v. Hanson, 67 How. Pr. 75. In truth, this is an essential, as well as an incidental, power, and authority being given to the tribunal or body to exercise judicial functions, this power is included as one of such functions without any special or express grant or enumeration. It is not material what the court is called nor of what department of jurisprudence it is the minister. Its jurisdiction may be civil or criminal; at law or in equity; or it may be of a special character, not falling within either of these classifications, as where it is of probate or divorce, or of insolvency, bankruptcy, or admiralty. In either case, it necessarily has power, if it is a court of record or of general jurisdiction, and perhaps even when it is not, if it is a court mentioned in the constitution and is therein given power to exercise judicial functions in cases of the class in which it assumes to act: Easton v. State, 39 Ala. 551, 87 Am. Dec. 49; Coleman v. Roberts, 113 Ala. 323, 59 Am. St. Rep. 111, 21 South. 449, 36 L. R. A. 84; Welsh v. Lloyd, 5 Ark. 367; Neel v. State, 9 Ark. 259, 50 Am. Dec. 209; Ex parte Jones, 5 Cal. 494; : People v. Dwinelle, 29 Cal. 632; In re Shortridge, 99 Cal. 526, 37 Am. St. Rep. 78, 34 Pac. 227, 21 L. R. A. 755; Hughes v. People, 5 Colo. 436; Cooper v. People, 13 Colo. 337, 22 Pac. 790, 6 L. R. A. 430; People v. Stapleton, 18 Colo. 568, 33 Pac. 167, 23 L. R. A. 787; People v. Times-News P. Co., 35 Colo. 253, 84 Pac. 912; Holcomb v. Cornish, 8 Conn. 375; Ex parte Edwards, 11 Fla. 174; State v. White, T. U. P. Charlt. 123; Howard v. Durand, 36 Ga. 346, 91 Am. Dec. 767; Swafford v. Berrong, 84 Ga. 65, 10 S. E. 593; Bradley v. State, 111 Ga. 168, 78 Am. St. Rep. 157, 36 S. E. 630, 50 L. R. A. 691; Clark v. People, 1 Ill. 340, 12 Am. Dec. 177; People v. Wilson, 64 Ill. 195, 16 Am. St. Rep. 528; Clark v. Burke, 163 Ill. 334, 45 N. E. 235; Dahnke v. People, 168 Ill. 102, 48 N. E. 137, 39 L. R. A. 197; State v. Tipton, 1 Blackf. 166; Ex parte Smith, 28 Ind. 47; Little v. State, 90 Ind. 338, 46 Am. Rep. 224; Holman v. State, 105 Ind. 513, 5 N. E. 556; Dunham v. State, 6 Iowa, 245; In re Millington, 24 Kan. 214; State v. Rose, 74 Kan. 260, 85 Pac. 803, 6 L. R. A., N. S., 843; Arnold v. Commonwealth, 80 Ky. 300, 44 Am. Rep. 480; Newport v. Newport L. Co., 92 Ky. 445, 17 S. W. 435, 13 Ky. Law Rep. 532; State v. Judge Civil Dist. Ct., 45 La. Ann. 1250,

40 Am. St. Rep. 282, 14 South. 310; Mariner v. Dyer, 2 Me. 165; Morrison v. McDonald, 21 Me. 550; Ex parte Maulsby, 13 Md. 625; Cartwright's Case, 114 Mass. 230; Langdon v. Wayne Ct. Judges, 76 Mich. 358, 43 N. W. 310; Nichols v. Judge Super. Ct., 130 Mich. 187, 89 N. W. 691; State v. First Dist. Ct., 52 Minn. 283, 53 N. W. 1157; Ex parte Adams, 25 Miss. 883, 59 Am. Dec. 234; Watson v. Williams, 36 Miss. 331; State v. Shepherd, 177 Mo. 205, 99 Am. St. Rep. 624, 76 S. W. 79; Kregel v. Bartling, 23 Neb. 848, 37 N. W. 668; Nebraska C. H. S. v. State, 57 Neb. 765, 78 N. W. 267; Back v. State (Neb.), 106 N. W. 787; State v. Matthews, 37 N. H. 450; In re Cheesman, 49 N. J. L. 115, 60 Am. Rep. 596, 6 Atl. 513; Yates v. Lansing, 9 Johns. 395, 6 Am. Dec. 290; People v. Fancher, 4 Thomp. & C. 467; State v. Woodfin, 5 Ired. 199, 42 Am. Dec. 161; Ex parte Moore, 63 N. C. 397; Hale v. State, 55 Ohio St. 210, 60 Am. St. Rep. 691, 45 N. E. 199, 36 L. R. A. 254; Smith v. Speed, 11 Okla. 95, 66 Pac. 511, 55 L. R. A. 402; State v. Bourne, 21 Or. 218, 27 Pac. 1048; In re Irwin's Estate, 9 Pa. Dist. Rep. 282; Kennesaw Mills Co. v. Walker, 19 S. C. 104; In re Taber, 13 S. Dak. 62, 82 N. W. 398; In re Cooper, 32 Vt. 253; Rudd v. Darling, 64 Vt. 456, 25 Atl. 479; Carter v. Commonwealth, 96 Va. 791, 32 S. E. 780, 45 L. R. A. 310; State v. Few, 24 W. Va. 416, 49 Am. Rep. 257; In re Rosenberg, 90 Wis. 581, 63 N. W. 1065, 64 N. W. 299; United States v. New Bedford Bridge Co., Fed. Cas. No. 15,867, 1 Wood & M. 401; United States v. Smith, Fed. Cas. No. 16,342, 1 Cranch C. C. 127; Ripon R. W. v. Schreiber, 101 Fed. 810; The Laurens, Fed. Cas. No. 8121, Abb. Ad. 302; United States v. Hudson, 7 Cranch, 32, 3 L. ed. 259; Ex parte Terry, 128 U. S. 289, 9 Sup. Ct. Rep. 77, 32 L. ed. 405; In re Debs, 158 U. S. 564, 15 Sup. Ct. Rep. 900, 39 L. ed. 1092; In re Pater, 5 Best & S. 299, 32 L. J. M. C. 142, 10 Jur., N. S., 972, 10 L. T. 376, 12 Week. Rep. 823, 9 Cox C. C. 544.

b. The National Courts.-It has been said in at least one of the national courts that the power to punish for contempt is not incident to the mere exercise of judicial functions, and hence must be expressly conferred: In re Mason, 43 Fed. 510. This position is, we think, not maintainable upon principle, and certainly is not in accord with the great weight of authority upon the subject, as we have shown by the decisions cited in the preceding subdivision. The authority of the courts of the United States, unlike that of the courts of the several states, is not subject to express constitutional grant including the designation of their jurisdiction, the only provisions on the subject to be found in the national constitution being those in sections 1 and 2 of article 3. By section 1 the judicial power of the United States is vested in one supreme court, and in such inferior courts as the Congress may from time to time establish. The question as to what such judicial power shall extend was answered in section 2. Nevertheless, the authority of those courts

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