
    Ex Parte Malcom Jennings.
    
      Witness before notary public — May refuse to testify, when — Relevancy of testimony — Power of officer to punish for contempt— Habeas corpus.
    
    
      A witness whose deposition is being taken before an officer may-refuse to testify to facts not relevant to the issues in the case in which the deposition is to be read, if the disclosure of such irrelevant facts would be injurious to the business of the witness ; and, if imprisoned by the officer for such refusal, he may be discharged on habeas corpus.
    
    (Decided May 9, 1899.)
    Habeas Corpus.
    The petitioner, Malcom Jennings, by his petition in hateas corpus seeks to be discharged from a commitment made by a notary public before whom his deposition was being taken in an action in quo warranto pending in this court, being the State of Ohio ex rel F. S. Monnett, Attorney-General v. The Buckeye Pipe Line Company. The object of that action, briefly stated, is to oust the pipe line company, an Ohio corporation, from its corporate franchises and privileges because it has offended against the law of its creation and against the act of April 19, 1898, entitled “An act to define trusts and provide for criminal penalties and civil damages and punishment of corporations, persons, firms and associations or persons connected with them, and to promote free competition in commerce and all classes of business in the state” (93 O. L., 143), by entering into trust agreements with the Standard Oil Company, of Ohio, and numerous other corporations for the purpose of limiting the production, transportation and refining of petroleum, and thus to exact extortionate prices for its products to the oppression of the public. In the course of his deposition the petitioner had testified that he is the proprietor of “The Jennings News Bureau and Advertising Agency” started about December 1, 1898; that the agency had contracts with newspapers in Ohio providing that they should print and publish advertisements and “reading notices” furnished by it, the reading notices not to appear as advertisements; that he had received from Mr. Apthorp, a representative of the Standard Oil Company matter to be published under such contracts; that he had furnished nothing, and was instructed to furnish nothing, bearing upon suits pending in the state; that while the witness understood that Mr. Apthorp represented several other corporations, he had furnished him no matter except for the Standard Oil Company. The witness was then asked to furnish a list of the papers circulating in Ohio with which he had such contracts. This the witness refused to do upon the ground that the information sought was not pertinent to the issues in the case in which the deposition was being taken and that the disclosure would be detrimental to the business of the witness. Thereupon the Attorney-General made the following request:
    “Attorney-General: Now, Mr. Notary, we ask you to enforce the order and for you to ask him to do it. We propose to show by the article and matter furnished coming from this witness and Mr. Apthorp and his agents that they have reflected upon the proceedings in this case on the relation of the state of Ohio against these constituent companies, and were designed to prejudice the court, and are in contempt of the Supreme Court of the state.”
    
      Thereupon, the witness persisting in his refusal to answer, the notary issued his writ to a constable of the township commanding him to arrest the petitioner and commit him to the jail of the county and there to remain until he shall submit to testify.
    
      Virgil P. Kline and Lawrence T. Neal, for petitioner.
    It is, perfectly obvious, from an examination of the testimony itself and a reference • to bhe pleadings in the case, as well as from the avowed purposes for which the evidence is sought, that it can have no bearing whatever upon any of the issues in the case.
    No contracts for advertising were made by Mr. Jennings or his agency, until weeks after the suit against the Buckeye Pipe Line Company had been commenced.
    The question arises, then, whether in an action between two citizens pending in any court of record of the state, the attorney for either of the parties may select a notary, serve notice to take depositions, cause subpoenas to be served upon citizens, and compel them to be sworn and submit to an examination on irrelevant, extraneous and private matters, or go to jail for refusal, and whether, on such refusal and a commitment therefor, there is a remedy by habeas corpus in the state of Ohio.
    It is easy to see how the most flagrant abuses, disgraceful to the administration of justice, may be inflicted upon citizens; how private affairs may be made public at the instance of malicious and unscrupulous' attorneys, until courts, instead of being the protectors of the rights of persons and property, may become destroyers of both, unless there is some check to such proceedings.'
    We think there is a remedy by habeas corpus. Church on Habeas Corpus, sections 319, 331, 332, 323; section 5252, Revised Statutes of Ohio.
    If the case of the State of Ohio ex rel. F. S. Monnett, Attorney-General v. The Buckeye Pipe Line Company, was before this court on oral hearing, and the questions presented here were asked of a witness, this court would be bound to hold that he need not answer, as the same were wholly irrelevant and incompetent, and that it involved a needless disclosure of private business, from which it was the duty of the court to protect him. If this be so, he cannot lawfully be ordered by an inferior magistrate or officer to answer such question.
    It is no contempt on the part of a witness to refuse to answer irrelevant, immaterial or inadmissible questions and if, for the refusal to answer such questions, he is committed by the notary, he will be released on habeas corpus.
    
    The courts will review upon habeas corpus an order of commitment made by a notary, and will, in any case where the courts would not compel an answer to a question, discharge the witness. In re Beardsley, 37 Kan., 666; In re Davis, 38 Kan., 408; In re Cubberly, 39 Kan., 291.
    If it appears that the court rendering the judgment of contempt was without authority for rendering it, or if the acts alleged as contempt do not 'cpnstitute contempt, or if the court exceeded its authority, the person may be discharged by another court on habeas corpus. Ex parte Perkins, 29 Federal Reporter, 900; Ex parte Grace, 12 Iowa, 208; Ex parte Hardy, 68 Alabama, 303.
    
      Is not a court without authority and therefore without jurisdiction to require a witness to answer a manifestly incompetent and irrelevant question ? As to questions irrelevant and impertinent to the issue, the witness is .privileged, and the refusal to answer is not contempt. Ex parte Zeehandelaar, 71 California, 238; In re McKnight, 27 Pacific Reporter, 336.
    The notary public, in committing a witness for contempt, exercises judicial power. Dogge v. State, 21 Nebraska, 278; Holman v. Mayor, 34 Texas, 668; Ex parte Krieger, 7 Missouri Appeal; 367; Ex parte Woodworth, Hamilton Common Pleas, 1893, 4 Ohio Legal News, 19; s. c. 29 Cincinnati Law Bulletin, 315; In re Ayers, 123 U. S., 443; Ex parte Fish, 113 U. S., 713; Bradley v. Veazie, 47 Maine, 85, relied upon as an authority for the decision of this court in De Camp v. Archibald, 50 Ohio St., 618, does not sustain it. Ex parte Goodin, 67 Mo., 637.
    The principle declared by this court, in the case of De Camp v. Archibald, that a witness who for any reason refuses to answer a question, which does not involve a question of personal privilege on his part, may be committed by the notary, as a contumacious witness, is not sanctioned by the weight of authority, and is against a wise public policy.
    There the witness declined to answer on the ground that the evidence was incompetent, and this court held that the notary had no discretion but to enforce an answer to the extent of committing him for his refusal.
    In conclusion, we ask the court to remember that, “the general spirit and genius of our laws and the spirit of liberty prevailing in our courts have tended to enlarge the jurisdiction of the courts in habeas corpus proceedings, so as to cover every case of illegal confinement of a person or his illegal restraint.” Brown on Jurisdiction, section 100, page 266.
    
      F. S. Monnett, Attorney-General; E. B. Einlcead and Smith W. Bennett, for relator.
    In answer to a suggestion made by a member of this court, at the time of the argument for the granting of the writ herein, we respectfully answer that we think the rules would permit us to take the deposition of a witness, residing in Franklin county, the same as if he resided in some foreign county. For the purpose of the consideration of this question, we waive the fact that the witness did not claim that as a reason for refusal to answer ¿.the questions disclosed by the record, but the refusal was placed on entirely different grounds, and also waive the more serious proposition that such a question could not be insisted upon in an application for a writ of habeas corpus.
    
    The statutes of Ohio pertinent to the questions are as follows: Sections 5261, 5266, 5265, 5281.
    It will thus be seen that by section 5266 there is no restriction placed upon the right of either party to take depositions. Any party to an action, at any time .after service upon the defendant, may take the deposition of any witness. Power is given to the officer by section 5248, and succeeding sections, to compel the attendance of witnesses. There is thus no limitation or restriction upon the right to take; but the right to use a deposition, and to have it read as evidence is controlled by sections 5265 and 5281. A party is not required to await any infirmity befalling the witness before he can proceed to take his deposition, he can take it at any time after service on the defendant, and if the infirmity befalls the witness he can then use the deposition. Section 5281.
    We understand that here, as is provided in section 5265, the oral examination of the witness is not required. If it is we would be pleased to produce the evidence ore tenus upon this court.
    We cite the following authorities: In the matter of the application of Leopold Nushulin, 1 Clev. Law Rep., 249; s. c. 3 Cin. L. Bull., 739; s. c. 4 Dec. Re., 299; Shaw v. Edison Inst. Co. et al., 17 Cin. L. Bull., 274; 9 Dec. Re., 809.
    It will be observed that this witness is not a party, and hence is not brought within the rule laid down in 14 C. C. Rep., 517, (7 Circ. Dec., 603), and the lower courts in this state have unif ormally held that the testimony of a witness may be taken at any time notwithstanding the fact that' the witness is not sick nor likely to depart, etc.
    No question of jurisdiction can be raised against the officer in this action who committed the applicant for contempt in refusal to answer, for although it may have been seriously questioned in the past, yet since the decision of this court in DeCamp v. Archibold, 50 Ohio St., 618, there can no longer be any question but’that a notary public has full power to conímit a witness who is contumacious, for contempt in refusing to obey the’ order of the notary.
    The question of a notary public being empowered to make such an order and to commit for refusal to obey the order had long been a mooted question and was discussed in the case of Burnside v. Dewstoe, 15 Bulletin, 197 (9 Dec. Re., 589), and in the case of State ex rel. v. Cost, 22 Bulletin, 250, (10 Dec. Re., 619), and in many other cases not so well considered but of inferior courts.
    ’ The question of jurisdiction in the officer being beyond dispute, it becomes necessary to inquire when, how and under what circumstances the power to commit should be exercised by such officer. Relying upon the well established rule that an officer, such as a notary public, taking depositions has no power at all vested in him, either by a rulé of practice or by an express statute, to pass upon the competency, materiality or relevancy of testimony, but that his office in the premises is merely to reduce to writing the deposition, either by himself or some disinterested person, cause the same to be subscribed by the witness, and then to be sealed up and transmitted to the clerk of the court where the action or proceeding is pending. His powers in this regard are purely statutory. He does nob possess any powers of a referee or even of a master commissioner, as held both by this court and the federal courts. It necessarily follows from the decision in DeCamp v. Archibald that exercising no judicial powers he cannot pass upon the relevancy,¿materiality or competency of' the testimony, it must all be reduced to writing, the objections noted and these objections brought to thé attention of the court upon the trial of the case, so that whether the question is competent, relevant or material must be alone determined by the court before whom the deposition will be used.
    This is further ma^e to appear by sections 5284, 5285, 5286 and 5287 of the Revised Statutes of Ohio, wherein it is required that exceptions to depositions shall be in writing, shall specify the grounds of objections, and shall be filed with the papers in the ease, and that unless the exceptions are filed before the commencement of the trial, no exceptions will be considered, other than for incompetency, or irrelevancy, and that the court shall on motion of either party hear and decide the questions arising on the exceptions to the depositions before the commencement of the trial, and in the event that no exceptions are saved by the parties to the rulings of the court upon questions arising in the deposition the same are waived.
    The court will readily see that an answer to a question may not at the opening of the case be found to be material or competent, but when the trial has progressed and the evidence introduced, portion by portion, that which at first was thought to be incompetent will at last be found to be competent, and for a court to strike out as improper that which afterwards will be shown to be proper, would be unfair and destructive of the rights of the party against whom such a rule might be inflicted.
    This brings us to the proposition, what is meant by “questions of privilege” which a witness may lawfully refuse to answer, and were the questions which the applicant in this cause refused to answer, such questions as would be called “questions of privilege?”
    Our claim is that there are no privileges which a witness may claim other than those prescribed in the constitution and statutes of the state.
    The constitutional privileges are, that no one shall be compelled to testify against himself in any criminal case, or to give any testimony in any ease which may tend to criminate him or subject him to a forfeiture or penalty.
    The statutory privileges are'the well known ones prescribed by section 5241 of tbe Revised Statutes of the state of Ohio, and reLate to communications between attorney and client, physician and patient, minister and his flock. Outside of these there are absolutely no other privileges that any witness can claim. Ward v. Sharp, 15 Vt., 115.
    We say that this was the well settled rule at common law, and for authority refer to section 452 of Green leaf on Evidence; Cox v. Hill, 3 Ohio, 411; Underhill on Evidence, section 353; Bank v. George, 12 Am. Dec., 487; Taney v. Kemp, 7 Am. Dec., 673.
   Shauck, J.

Authority to punish, as for a contempt, a witness who refuses to answer “when lawfully ordered” is conferred upon notaries public by sections 5252 and 5254 of the Revised Statutes. DeCamp v. Archibald, 50 Ohio St., 618. The denial here is not of the power of the officer, but of the lawfulness of the occasion for its exercise. The taking of testimony by depositions is authorized with much detail in the provisions of our statutes relating to civil procedure. The general provision is that “the testimony of witnesses may be taken” in this mpde. The purpose is to present to the court upon the trial of issues of fact the testimony of witnesses unavoidably absent as though they were present, and the power to punish those who refuse to appear or to testify is conferred to effectuate that purpose. The language of the section conferring authority upon the officer to punish a witness for refusing to answer “when lawfully ordered” implies that punishment cannot be imposed for every refusal.

It is familiar that an objection to the competency of the evidence to be elicited, when interposed by a party to the action in which the deposition is taken, cannot be either sustained or overruled by the officer. In such case the question of competency is for the court. But it seems quite consistent with the purpose for which depositions are taken that a witness may refuse to make disclosures which would operate to his personal prejudice without aiding the court in determining the rights of the parties, by reflecting either upon the issues in the case or upon the credibility of the witness. Accordingly the settled law upon the subject is as stated in Church on Habeas Corpus, section 319: “The law has not invested such officers (notaries public) with arbitrary and omnipotent power to compel a witness to answer all questions however incompetent, irrelevant, immaterial or inadmissible. A refusal to answer such questions is not necessarily a contempt. To have power to commit for contempt, the notary must exercise his functions substantially in the manner and under the circumstances prescribed and contemplated by law. It has, therefore, been held that a witness will be discharged on habeas corpus where he has been committed for contempt by a notary public for failing or refusing to produce papers and testimony that are incompetent and inadmissible. ” Proffatt on Notaries, section 31; In re Beardsley, 37 Kas., 666; Ex parte Krieger, 7 Mo. App., p. 637.

The conclusions stated must be sound, unless the officer, taking a deposition is released from limitations which the law imposes upon the authority of the judge before whom it is to be read, since a witness examined in court is not guilty of contempt in refusing to answer an incompetent question. Ex parte Zeehandelaar, 71 Cal., 238; People ex rel. v. Kelly, 24 N. Y., 74. In DeCamp v. Archibald, so confidently relied upon to justify this imprisonment, it was clearly pointed out in the opinion that the question which the witness refused to answer was competent. Indeed it does not seem to have been finally determined in any case that the personal liberty of the citizen is of so little importance that it should yield to a desire to gather food for idle gossip.

Are the facts which the witness refused to furnish relevant to the issues in the ease in which the deposition is to be read? Is there reason to suppose that our minds so operate that, in determining whether the pipe line company has entered into an unlawful compact with other corporations to extort unreasonable prices for the products of petroleum, we can be aided to a conclusion by knowing whether this witness has entered into more or fewer contracts of the character indicated, or by having- the names of the papers which have entered into such contract relations with him? If we should attend to all that might be said in criticism of journalism which publishes advertising matter without distinguishing marks; or of the reprehensible practice of creating public sentiment, by either party, for its supposed influence in the judicial determination of causes, we should be no nearer to a conclusion upon the issue of fact. That can be reached only by a consideration of evidence tending to establish or refute the allegations of the state.

With respect to the suggestion of the attorney general, that the evidence would tend to show that there has been a contempt of this court, it seems to be sufficient to say that the court should, ana will, take the responsibility of instituting such inquiries as it may deem necessary to the preser-' vation of its dignity and the orderly character of its proceedings. There can be no issue of that character until it is ordered by the court.

We do not suppose that any interest which the witness may have in concealing the facts which the question propounded was designed to elicit would excuse him from answering, if the facts were relevant to the issues in the case on trial; nor that the sincerity of his belief that the facts are irrelevant would shield him from imprisonment if the court should be of the opinion that they are relevant. If he refuses to answer upon the ground that the answer is incompetent he does so at his own peril. It seems, however, entirely clear that in this case the opinion of the witness as to the irrelevancy of the question is correct.

Petitioner discharged.

Ml NS hall, J.,

dissents from the proposition of the syllabus, but not from the discharge of the relator.  