I dissent from the order denying the petition for a rehearing. It is conceded by everybody that this is not a proceeding against the superior court, but one against Hon. N.P. Conrey, a judge of such court; and also that the taking of the deposition in and about which the matters constituting the alleged contempt arose was not being had in the superior court, but, under the provisions of our code relative to the taking of such depositions, before an officer authorized to administer oaths. Under these circumstances, it appears to me to be wholly immaterial that the judge before whom such deposition was being taken was the judge of the department of the superior court in which the action on the trial of which the deposition being taken *Page 220 might thereafter be used was pending. The taking of such deposition by the judge was no part of the trial of the action bythe court. The action is not pending before the "judge" at all. It is pending before the "court," and must be tried by the court. Such a deposition may be taken before issue is joined at all. In order to entitle the deposition to be thereafter used on the trial, it is required, whether taken before the judge of the court in which the action is pending or before any other officer authorized to administer oaths, to be taken in the manner prescribed by the section of the code relative to the taking of such depositions (Code Civ. Proc., secs. 2021, 2031, 2032, 2033), subscribed by the witness, certified by the judge or other officer taking it, inclosed in an envelope, and transmitted by the judge or other officer to the clerk of the court in which the action is pending or to such person as the parties in writing agree upon. When so taken and transmitted it may be used on the trial thereafter had, subject to all legal exceptions. The officer taking such a deposition, be he judge or notary, has no power to rule upon questions as to the admissibility of testimony, and if an objection be made, can only note the same in the deposition, and the party making the objection is entitled on the trial to a ruling from the court. In the taking of such depositions there is no distinction between the duty of the judge of the court in which the action is pending and those of any other judge or any other officer authorized to administer oaths. If the respondent has the power to punish for contempt a witness who refuses to testify upon the taking of such a deposition before him, such power is not, in my judgment, due to the fact that he is the judge of the court in which the action is pending, and I am unable to concur in the opinion of the chief justice which bases the conclusion that he has such power upon that fact. If he has such power, it appears very clear to me that every judge taking such a deposition, whether for use in the court over which he presides or in any other court, has the same power. The concurrence of Mr. Justice McFarland is based upon the opinion that every judge taking such a deposition has such power. It is conceded by all the justices that a ministerial officer taking such a deposition (and all ministerial officers authorized to administer oaths may do so) cannot punish for contempt, the *Page 221 exercise of such a power being purely a judicial function, and this court so held in the Burns case. There is no judicial duty involved in the taking of such a deposition, whether the officer taking the same be a judge or notary public. The officer, whoever he may be, acts in a purely ministerial capacity. The statute clothes judges with the power to take and certify affidavits and depositions by the same section by which it authorizes them to take and certify the proof and acknowledgment of a conveyance of real property, and the acknowledgment of a satisfaction of judgment (Code Civ. Proc., sec. 179), and they are also authorized to solemnize marriage. (Civ. Code, sec. 70) These are purely ministerial powers, which it is optional with them to exercise or not, and no one would claim that while exercising such powers they are discharging judicial duty. When a judicial officer, by virtue of a statute authorizing him to so do, acts in a ministerial capacity he becomes for the purpose of so doing purely a ministerial officer, with no greater or less power in regard thereto than any other ministerial officer authorized to do and doing the same thing. With respect to the doing of the ministerial act, he is not a judicial officer, and not being a judicial officer he cannot punish for contempt. Sections 177 and178 of the Code of Civil Procedure, authorizing a judicial officer to punish for contempt in certain cases, relate entirely to cases in which he is engaged in the performance of judicial duty. That portion of section 1991 of the Code of Civil Procedure which purports to authorize a ministerial officer issuing a subpœna to punish as a contempt disobedience thereof, or a refusal to be sworn or answer as a witness, is, under the views expressed in the Burns case, unconstitutional. That case clearly indicated that such punishment could be imposed only by the court in which the action is pending. I am unable to reconcile the conclusion in this case with the reasoning of the court in the Burns case, and am of the opinion that the respondent judge was correct in his conclusion that he had no authority to punish the witness for contempt, and that the writ should be denied.
Lorigan, J., concurred in this dissent. *Page 222