Plaintiff sued out a temporary writ of prohibition, staying the lower court from proceeding with the threatened enforcement of a contempt order on the ground that the order was made without power and authority. The questions raised are (1) whether the court had power to make the order and (2) 1 if not, whether prohibition lay. The questions will be decided in reverse order. The facts are as follows: Alton R. Mayers is the son of Nellie R. Mayers, deceased, and executor of her estate, she having died on June 11, 1939. Her estate is in probate in the District Court. On the 8th of January, 1940, the Tax Commission sought to subpoena Alton R. Mayers directing him to appear before the Tax Commission on January 15, 1940, and bring with him certain papers and documents and to submit himself to examination concerning certain property claimed by the Commission to be subject to the inheritance tax. Mayers wrote the Commission that he had been advised by counsel not to respond to the subpoena because the Commission had no power to issue it. Mayers failed to appear. The Commission, in accordance with Sec. 104-14-15, R.S.U. 1933, reported this fact to the District Court by sworn petition. Upon the basis of this petition an order was issued out of the District Court ordering Mayers to appear and show cause why he should not be held for contempt. Mayers appeared by counsel, demurred and answered the petition. The demurrer was on the ground that the Commission's petition for the order to show cause did not state facts sufficient to constitute a cause of action. Defendant herein makes point of the fact that neither the demurrer nor answer to the petition to show cause raised the question of the jurisdiction of the *Page 283 District Court. A demurrer based on the ground that the petition does not state a cause of action does not ordinarily raise the question of jurisdiction. The court may have jurisdiction even though the pleading fails to make out a case in regard to the subject matter in reference to which the court's jurisdiction is involved. Atwood v. Cox, 88 Utah 437, 55 P.2d 377. The question of the court's jurisdiction to entertain and conclude as to the Commission's power to subpoena, and the court's jurisdiction to commit for contempt on an erroneous finding of power will be considered hereunder in connection with the question as to whether an application for a writ of prohibition to this court lies.
To proceed with the history of the case in the lower court: After hearing on the issues raised by the petition for the order to show cause, the demurrer and answer, the District Court, the Hon. M.J. Bronson presiding, decided that the Commission had authority to issue the subpoena. On March 29, 1940, Judge Bronson adjudged plaintiff guilty of contempt and gave him until April 8, 1940, to purge himself of the contempt by appearing before the Tax Commission, or if he did not so appear to return to the court on the same day for sentence on the adjudicated contempt. By agreement the date of execution was continued until May 8th. A motion to quash the judgment of contempt was, in the meantime overruled. The petitioner on May 7, 1940, filed his petition for a writ of prohibition. A temporary writ was issued. The argument is as to whether it should be made permanent.
Defendants in this court demurred to and answered the petition for a writ of prohibition and moved to dismiss on the ground that in no case should the writ issue because there is a plain, speedy and adequate remedy in the ordinary course of law regardless of whether the District Court acted with or 2 without power. We have held that even where there is jurisdiction we will entertain the application for the writ if there is no plain, speedy and adequate remedy at law. Atwood v.Cox, supra. We have *Page 284 also held even where there is not jurisdiction but a plain, speedy and adequate remedy at law, we will not entertain the writ. Hence, the important question is: Is there an adequate remedy at law?
In State ex rel. Board of County Commissioners v. SuperiorCourt of Washington for King County, 73 Wash. 296, 131 P. 816,817, it was said:
"In State ex rel. Miller v. Superior Court, 40 Wash. 555,82 P. 877, 2 L.R.A. (N.S.) 395, 111 Am. St. Rep. 925, after reviewing many cases in this court upon the question here presented, we held that the extraordinary writ of prohibition would not lie where there was an adequate remedy by appeal, andthat the adequacy of the remedy by appeal is the true test in allcases, and not the mere question of jurisdiction or lack ofjurisdiction in the court below to render the judgment, and that the adequacy of the remedy by appeal does not depend upon a mere question of delay or expense. See, also, State ex rel. Peterson v. Superior Court, 67 Wash. 370, 121 P. 836." (Italics added.)
The defendants contend that there is an adequate remedy by appeal. Its contention is twofold: First, that Mayers could have appeared before the Commission and refused to answer and then under Evans v. Evans, 98 Utah 189, 98 P.2d 703, the matter be taken to the District Court. But if Mayers 3 had appeared and then refused to answer on the ground that the Commission had no power to subpoena, the Commission would have petitioned the court for an order to show cause why he should not be committed for contempt, and we would have had up at a later stage exactly the same question we have now, and exactly the same procedure would have been gone through in order to get the question here so that if after the lower court had made its order requiring him to answer or appear to be sentenced for contempt, we would still be required to determine whether appeal would be adequate just as we are now required to so determine on the court's order to appear to testify and produce certain records or be sentenced for contempt. We cannot see how going one step further before he raised the question would have given *Page 285 Mayers any more adequate remedy by appeal than he now has.
The second ground for contending that Mayers has an adequate remedy by appeal is more substantial and troublesome. This is the claim that Mayers may refuse to appear and then come to the court for sentence and take an appeal from sentence. In a civil contempt the appeal would stay the sentence. 4-6State ex rel. Board of Commissioners v. SuperiorCourt, supra. But the difficulty in that situation is that the petitioner would be required to let the proceeding against him go on to such a point, where if he appealed and lost he would have to submit to sentence. He would try out his right at the peril of confinement. The petitioner is not required to put himself in such position. It is not the case of having to submit to the ordinary judgment in order to have rights tried out in the appellate court. Every person must thus wait until judgment to try out the right at the peril of finding himself ultimately wrong. But where the matter involves a restraint of personal liberty the case is different. It cannot there be said that he must allow the case to go on to ultimate judgment, that is actual sentence, for contempt and that he then has an adequate remedy by appeal. While the judgment may be suspended by supersedeas, if the appellate court finds the lower court to be correct he has nothing else to do but submit to the confinement. To require him to test out his rights on such gamble does not furnish a plain or adequate remedy at law. But if at the time the order is still in the alternative he sues out a writ of prohibition and is found to be wrong, he may still purge himself by compliance. Under the case of Attorney General v. Pomeroy, 93 Utah 426,73 P.2d 1277, 114 A.L.R. 726, he may try an intermediate appeal from the alternative order, which is equivalent to prohibition, but the court might use its discretion and refuse to entertain the appeal. This is itself a risk he need not take. It was held inCobbledick v. United States, 309 U.S. 323, *Page 286 60 S. Ct. 540, 541, 84 L. Ed. 783, that the "correctness of a trial court's rejection even of a constitutional claim made by the accused in the process of prosecution must await his conviction before its reconsideration by an appellate tribunal," unless the rule of appeal only from final judgments would "practically defeat the right to any review at all." The very purpose of a liberalized right to bring prohibition is to prevent intermediate appeals where such appeals would otherwise be the only means of preventing injustice. Attorney General v. Pomeroy, supra;Atwood v. Cox, supra.
The distinction between waiting until the final sentence for contempt is imposed and proceeding by prohibition to prevent such step at the time the order is still in the alternative is neatly illustrated by the cases of State ex rel. Peterson v. SuperiorCourt of King County, 67 Wash. 370, 121 P. 836, 837, and Stateex rel. Commissioners of King County v. Superior Court ofWashington for King County, supra, both written by the same judge. In the first case the order was that a witness, not a party to the action, submit to examination or show cause why he should not be punished for contempt of court, the court saying:
"It is argued by counsel for the respondent that an appeal will lie from the order made, and also that, in the event the relator is adjudged guilty of contempt, an appeal therefrom is an adequate remedy. We are of the opinion that the order of the court, requiring the relator to show cause why he should not be punished for contempt, is not an appealable order, because it is not a final order. It is plainly interlocutory, and therefore not appealable. Before the relator may appeal, he must either submit his showing to the court which he has already done, to the effect that he may not be required to appear personally as a witness in the case, or he must refuse to show cause. In either event, the court must enter a judgment against him for contempt, as the order indicates will be done.
"The rule is well settled that prohibition will not lie where the court is proceeding without jurisdiction when there is an adequate remedy by appeal. The adequacy of the remedy is the test to be applied upon applications for such writs. Delay and expense do not affect the adequacy of the remedy. State ex rel. Miller v. Superior Court, 40 Wash. 555, 82 P. 877, 2 L.R.A. (N.S.) 395, 111 Am. St. Rep. 925. *Page 287 In this case it is apparent that the trial court made the order complained of without authority of law, that the order is not an appealable order, and that the court will adjudge the relator in contempt of court unless this writ is issued. The relator may, no doubt, appeal from a judgment of contempt; but before he may do so he must be fined and possibly taken from one county to another and imprisoned, in direct violation of the statute. Section 1215 supra. We are of the opinion, therefore, that such remedy is not adequate."
In the second case the relator waited until the final order directing his arrest and imprisonment was made before application for prohibition. The court held he had an adequate remedy by appeal because if he lost that appeal he would be in no different situation that if he lost the case on a writ of prohibition. The court said:
"In the case last cited [the Peterson case], where the writ was applied for on a show cause order which threatened the relator in that case with punishment for contempt, we held that such order was not an appealable order, and that the relator could not be required to await a final order, and that a remedy by appeal was not adequate, and for that reason the writ issued. But in this case the final order was made before application for the writ. So that the question before us now is whether the relators have an adequate remedy by appeal. We think there can be no doubt upon this question, for the statute (section 1062, Rem. Bal. Code) provides as follows: `Either party to a judgment in a proceeding for a contempt may appeal therefrom in like manner and with like effect as from judgment in an action. * * *' See, also, State ex rel. Martin v. Pendergast, 39 Wash. 132,81 P. 324; State ex rel. Olson v. Allen, 14 Wash. 684, 45 P. 644;State ex rel Denham v. Superior Court, 28 Wash. 590,68 P. 1051."
The language in Alexander v. United States, 201 U.S. 117, at page 122, 26 S. St. 356, at page 358, 50 L. Ed. 686, where the court refused to entertain an appeal from an interlocutory order requiring a party to do an act, even though questionably within the jurisdiction of the lower court, must be construed as confined to appeals and not writs of prohibition. The Supreme Court there said
"let the court go farther, and punish the witness for contempt of its order, — then arrives a right of review; and this is adequate for *Page 288 his protection without unduly impeding the progress of the case. * * * This power to punish being exercised, the matter becomes personal to the witness and a judgment as to him. Prior to that the proceedings are interlocutory in the original suit."
We can agree that an intermediate appeal should not be permitted but we have serious doubts as to the statement that if he waits until he is punished for contempt in every case he had an adequate procedure for his protection. The Washington Court did not so think; nor do we.
The Commission cites Crowther v. District Court, 93 Utah 586,54 P.2d 243 as in point. But the facts in that case show that Crowther and Jorgenson had been required by the court to testify before the notary public; that they refused to obey the order unless their fees were paid; that thereupon the court cited them in, not on an alternative order to appear before the notary on a certain date or return to the court to be punished for contempt, but for the purpose only of requiring them to show cause why they should not be punished for contempt. Certainly they would be in no better position if they brought prohibition than if they submitted to sentence and appealed. If this court had entertained the writ of prohibition and they had won, they would have likewise won if they had submitted to sentence, and appealed and won. And if they had lost on the prohibition proceedings in this court they would be before the lower court still for sentence, which is exactly where they would be if they had appealed and lost. The writ of prohibition was no more adequate in such case than appeal, because in either case the matter had gone to a point where they could try their rights only at their peril. They could have submitted to arrest and confinement and sued out a writ of habeas corpus and had the question of the court's authority to commit them for contempt determined. That was equally as adequate as appeal or prohibition where the proceedings had gotten to the stage when the writ of prohibition was asked for in the Crowther case. It was then beyond the stage where prohibition would have saved the *Page 289 petitioners from any situation where appeal was not equally adequate. Prohobition lies where there is not an adequate remedy at law, the implication being, of course, that prohibition is adequate, or at least more adequate, than ordinary remedies. But where prohibition is no more adequate than appeal, the petitioners will be relegated to the latter.
It remains to say a word about the demurrer in the lower court. It did not challenge the jurisdiction of the lower court to entertain the petition of the Tax Commission, as it well could not. The court certainly had authority to entertain the petition and determine whether the Commission had power 7 to subpoena and if it so found to order Mayers to appear before the Commission for examination, even though its conclusions were erroneous. Atwood v. Cox, supra. Indeed such is the convenient and natural way of determining such questions and compelling obedience. Woolley v. Wight, 65 Utah 619, 238 P. 1114, 41 A.L.R. 433.
The parties have not raised the question as to whether disobedience of the order of the Commission is a "contempt," and we therefore expressly refrain from deciding it. Suffice it to say that the citation of the lower court in this case requiring plaintiff Mayers to appear and show cause why he "should not be held in contempt of court" followed by the alternative order to appear before the Tax Commission to testify and produce certain records or to appear and be sentenced for contempt, indicates that plaintiff is not to be punished for contempt until he refuses to obey the order of the court. We refer the reader to the following authorities which hold that the party is not in contempt until he refuses to obey the order of the court:Interstate Commerce Commission v. Brimson, 154 U.S. 447, 487,14 S. Ct. 1125, 38 L. Ed. 1047; State v. Ryan, 182 Mo. 349,81 S.W. 435; State v. Martin, 125 Okla. 24, 256 P. 681; "Administrative Law" by Gellhorn, pp. 66, 67.
Inasmuch as both parties desire a determination of the case on its merits, we now proceed to the main question. *Page 290 Did the Commission have power to subpoena Mayers? We think it did. The Tax Commission was created pursuant to Constitutional Amendments passed on November 4, 1930, 8 by Chap. 53, Laws of Utah 1931, which took the form of amending sections of the 1917 Compilation (C.L. Utah 1917) dealing with the creation of the Board of Equalization which the Tax Commission supplanted. Chap. 53 provided for the creation, terms of office, salary, vacancies, employees, powers and duties, etc. The powers and duties were much broader than those of the old State Board of Equalization in order to encompass duties prescribed by Sec. 11 of Article XIII of the Constitution which provided for the establishment of the Tax Commission and gave it power to "administer and supervise the tax laws of the State." The State Board of Equalization had only power with reference to tangible property and limited powers in that respect.
Sec. 5984, C.L. Utah 1917, as amended by subsection 15, Chap. 53, p. 231, Laws Utah 1931, reads:
"15. To examine all records, books, papers, and documents, relating to the valuation of property of any corporation or individual, and to summon witnesses to appear and give testimonyand to produce records, books, papers, and documents relating toany matter which the tax commission shall have the authority toinvestigate or determine." (Italics added.)
The words "and to summon witnesses to appear and give testimony and to produce records, books, papers, and documents relating to any matter which the tax commission has authority toinvestigate or determine," (Italics added) should be considered as meaning what they say and as intended to assist in effectuating the total power to "administer and supervise the tax laws of the State" of Utah rather than as applicable only to the Commission's powers in respect to tangible property. These powers are contained in the general powers of the Commission and as a part of the act creating it. Certainly, it would be natural and reasonable to give to the Commission as part of its general *Page 291 powers at that time all those powers which it might need presently and in the future properly to carry on its work. Indeed, it would be deviating from the plain meaning of the language and from what we might suppose the legislature would reasonably and logically do, to limit the application to the Commission's power in reference to tangible property. In that regard it will be noted that the 1917 Compilation gave the State Board of Equalization the power "to issue subpoenas for the attendance of witnesses or production of books before the board, or any member thereof." § 5984, subsec. 11. That power was in aid of the limited powers of that Board and coextensive therewith. Certainly subsection (15) of Sec. 5984, C.L. Utah 1917, as amended by Chap. 53, Laws of Utah 1931, which starts out with a power to examine records, etc., relating to the valuation of property and ends with a general power to summon witnesses to produce records, etc., relating to any matter which the Tax Commission shall have authority to investigate, must by the same token be considered as an aid to the enlarged powers of the Commission and coextensive therewith.
The fact that in the Revision of 1933 the sections creating the Tax Commission and giving it general powers were inserted in the chapter dealing with assessment of property under the title Revenue and Taxation, is of small moment as compared to the overbalancing arguments the other way. Certainly if Chap. 53, Laws Utah 1931, set up the Tax Commission as an entity with powers sufficient to effectuate the mandate of the Constitution, there is little reason to hold that the mere arrangement in the Revision was meant to limit those powers to the valuation and assessment of tangible property and the equalization of the same. Moreover, there appears to be a plausible reason why the provisions creating the Tax Commission together with those provisions generally imposing duties and giving powers for general purposes were sandwiched in the chapter on Assessment of Property (tangible). The Code Commission *Page 292 proceeded with the assembling of all the provisions with respect to the tangible property under Title 80 to the point where the Tax Commission's powers and duties attached. At that point, to wit, when it had concluded with the duties of the County Assessor, it had the choice of (1) going on with Sec. 80-5-47 which dealt only with the Tax Commission's duties regarding the assessment of tangible property, or (2) setting out all the provisions creating the Tax Commission and prescribing its general duties and powers instead of placing those provisions in a separate chapter. Having thereafter to refer extensively to the Commission, it chose to insert the provisions institutionalizing it at the place it did.
Sec. 80-12-37, R.S.U. 1933 provides:
"Any person having knowledge of property liable to such tax, against which no proceeding for enforcing collection thereof is pending, shall report the same to the state tax commission, and it shall be its duty to investigate the case, and if it has reason to believe the information to be true, it shall forthwith institute proceedings for the collection of the same." (Italics added.)
Thus the power to investigate was implemented by the power to summon persons and records given by subsection (16) of Sec. 80-5-46. From what has been previously said the contention that in 1931 the Tax Commission had no duties to perform in reference to inheritance taxes has been answered.
Point is made that the District Court has power to fix and determine the amount of inheritance tax and the Commission only power to collect it. The court's power to fix the tax was retained because in most cases the tax is collectable from a decedent's estate which is administered under 9 supervision of the probate division. The tax is a charge against the estate, hence the final adjudication by the court having jurisdiction of the estate makes certain the charge which the administrator must pay. But there is nothing in such provision which makes the investigatory power by the Tax Commission inconsistent. *Page 293 The State appraisers appointed by the District Court appraise the property inventoried, the Tax Commission, instead of the County Clerk (who was formerly charged with doing it but had no adequate machinery to accomplish that duty) has power to investigate for undisclosed property which should also serve as a measure of the inheritance tax, the court has power to fix the tax, and the Commission has power to proceed to collect. Each agency is given the function it is best suited to perform. The powers form a mosaic with the powers articulating. Such was the intent of the lawmakers.
The powers of investigation in order that the commission may ascertain if there is property not included in the inventory and appraisement must not be confused with the powers of the Commission to challenge the inventory or appraisement by filing objections. The Commission may be compelled to use its investigating powers in order to determine whether it should file objections to the inventory and appraisement which form the basis of the fixing of the tax by the court.
If petitioner concludes that the Tax Commission is at any time proceeding beyond its powers of investigation by its questions and explorations into the records of the petitioner, he may have his day in court under Evans v. Evans, supra. The petitioner urges that the petition for the order to show cause in the lower court did not state facts sufficient to constitute a cause of action for the reason that
"it is nowhere therein alleged (1) that the Tax Commission had authority to investigate the inheritance tax liability of the estate of Nellie R. Mayer, deceased * * * (2) neither is it alleged therein that said estate owned the property therein referred to as being located at 41-43 Broadway in Salt Lake City; and (3) neither is there any allegation concerning the value of said property or tending to show that said property might be subject to inheritance tax liability."
Since a petition may be deficient in allegations without affecting the jurisdiction of the court, and none of the allegations *Page 294 said to be lacking were necessary to confer jurisdiction, the question of overruling a general 10-12 demurrer to the petition in an action which attacks jurisdiction such as this would not ordinarily be reviewable.Atwood v. Cox, supra. However, it may be said that it is not necessary for the Commission to allege its authority. This is a legal question to be decided from the pleadings. Nor is it necessary to allege the ownership of certain property or its value for those may be the very questions which the Commission by its investigation may seek to discover.
However, the petition in the lower court did fail to state what connection Alton R. Mayers had with the estate. The petition should show that there was a reasonable basis for issuing the subpoena. But as before stated, such 13 omission is not reviewable in this proceeding.
The temporary writ of prohibition is recalled.
McDONOUGH and PRATT, JJ., concur.