I concur in the conclusion reached by Mr. Justice Ingbaham in his opinion; and in view of the importance of the question to be *590determined, and the fact that the. members of the court are not unanimous, it is not improper that I should state the reasoning by which I reach the same conclusion. In this proceeding we are called upon to determine the validity óf a commitment issued by a commissioner of- a foreign court, consigning a citizen of this State ' to prison until he shall obey the instructions of the commissioner by answering a question which this commissioner has determined to . be a pertinent and proper one. The single question presented to us is whether or not the commitment is valid. We are not called upon to determine whether the question which this relator is called upon to answer is in fact pertinent and proper to the determination of the litigation in which he is sworn as a witness. That question has ■ been determined once for all by the commissioner upon whom the statute puts the duty of deciding it. (Matter of Searls, 155 N. Y. 333, 340.) Indeed, there is no way in which the determination- of the commissioner in that regard can be reviewed. However impertinent, irrelevant, immaterial, or even indecent a question may be the law not only puts upon the commissioner the duty, but gives him the power to say that it is relevant and proper, and no court in this State has any authority to .review his determination. Having the power, if he determines that the question is pertinent and proper, and the party procuring the examination makes the affidavit required by section 3001 of the Code, the witness, must answer;- or, if- he refuses to answer, he is committed to prison. It is idle to say that the power to commit one to prison under such circumstances does not touch, the liberty of the person who is confined there by virtue of it. A power' which can impose upon any citizen the necessity to give information about his most private affairs in a matter in which he is not at. all concerned, at the peril of imprisonment if he refuses, certainly affects his liberty in an eminent degree. It will not do to say that he may relieve himself of the imprisonment by answering the question. Whenever one is committed, for refusal to perform an act he can get free by doing it, but no court has ever suggested that fact as a reason for sustaining the commitment. The fact that he is compelled involuntarily to perform a certain act, or to subject himself to imprisonment, necessarily affects his liberty. He is, therefore, entitled to the. protection of that article of the Constitution which prescribes that no man *591shall be deprived of his liberty without due process of law. It is not necessary for me to consider the elements necessary to constitute due process of law. I concur in the definition of Mr. Justice Ingraham from which it clearly appears that to constitute that process it is essential that there should be a hearing before some officer who is properly authorized to pass upon the questions necessary to be determined, before the imprisonment can be inflicted. Was there such a hearing in this case ? The proceeding in which this commitment was granted was not one originated or pending in the courts of this State. It was begun in a District Court in the State of Colorado ; that portion of it which is to be performed in this State was originated by an order of that court, is pending under the direction of that court, and may be brought to an end at any time when that court sees fit to do so. The j>erson before whom it is conducted, although he happens to be a notary public of this State, gets no power to act from any of the constituted authorities of this. State. He is in. no sense a judicial officer, even if he can be said in any just sense to be an officer at all. He takes no oath of office. The Constitution provides the way in which officers shqll be elected or appointed (Art. 10, § 2), and no one can hold any office in this State until he has been chosen to it in one of the ways thus prescribed. Nothing of the sort is pretended to have been done in the case of this commissioner. His appointment is derived solely from the court of Colorado, and he would have the same power to do this act sought to be reviewed, whether he were a citizen of this State or of Colorado, or of any other country in whose court the deposition is to be taken. Having been thus appointed, section 920 of the Code of Civil Procedure has given to him the powers of a justice of the peace upon a trial, and it is by virtue of that provision of the statute that he has made this commitment. The authority he professes to exercise is that given to‘a justice of the peace by section 3001 of the Code of Civil Procedure, which provides that where a witness attending before a justice in. the action refuses to answer a pertinent and proper question, and the party at whose instance lie attended makes oath that the testimony of the witness is so far material that without it he cannot safely proceed with the trial of the action, the justice may by warrant commit the witness to the jail of the county. The' nature of this power it is not very material *592to consider. I have no doubt that it is'a power to-punish as for a contempt of court. It is so spoken of and regarded by all the eases with which I am familiar. (Rutherford v. Holmes, 66 N. Y. 368 ; Whitcomb’s Case, 120 Mass. 118; People ex rel. McDonald v. Keeler, 99 N. Y. 463.) But whether it is a power to punish as- for a contempt of court or not, it certainly is a power to commit a person to the county jail until lie shall perform, an • act which he is unwilling to do, and which he is required to do by the official who signs the commitment. Before that commitment can be signed, it is necessary that there should be a determination of the commissioner that the question is material, and proper. (Matter of Searls, 155 N. Y. 333, 340.) That determination lies at the foundation of the power to. commit. Until that is made the witness cannot be compelled to answer, ñor can he be committed for a refusal to answer unless that conclusion' has, been reached by the commissioner. Although .the witness may be examined upon interrogatories settled by the court" of Colorado, its allowance of interrogatories is< a matter of no importance. Eor the purposes of this proceeding the question is not pertinent and proper unless it has. been so determined by the commissioner named in the commission issued out of that court. It is clear, therefore, that at the foundation of this proceeding there lies the necessity to determine a pure question of law, and the power to determine that question is clearly judicial in its nature. Indeed, the power to-punish for contempt is judicial in its nature, and only arises in a judicial proceeding, and can only be exercised under the law of the land by a competent judicial tribunal which has" jurisdiction in the premises. (6 Am. & Eng. Ency. of Law [2d ,ed.], 1058 ; Interstate Commerce Commission v. Brimson, 154 U. S. 485.) This conclusion was reached by the Supreme Court of Massachusetts in Whitcomb’s Case (120 Mass. 118), in which, the question presented was whether a power given to- the common council of the city to commit and punish for contempt was within the authority of the Legislature. It appeared, in that case that one Whitcomb, had been summoned to testify before a’ special committée of the common council of the city of Boston, which had been appointed with full powers to investigate and report upon charges against members of the common council for violation of their duties; and that as such witness a certain material *593question was propounded to him, which he refused to answer. Thereupon, in pursuance of the authority given by the statute, he was committed to the county jail for a certain time, unless he should sooner express his willingness to appear and answer. TJpon a habeas corpus, the sole question presented to the court was, whether the - authority given to the common council to commit for contempt in that proceeding was within the power of the Legislature. Chief-Justice Gbay, in examining the question, determines, in the fhst place, that this power thus given to the common council was a power to punish for a contempt, and that that was a judicial power. The conclusion reached by the court was, that the Legislature could not delegate to or confer upon municipal boards or officers that are not courts of justice, the authority to imprison and punish without right of appeal or trial by jury, and that the statute which conferred that power upon the common council was unconstitutional. I cannot see any distinction in principle between that case and the one at bar. (See, also, Langenberg v. Decker, 131 Ind. 471; In re Huron, 58 Kans. 152.) The nature of the power to punish for contempt has been frequently examined in the courts of this country and of England; and it is universally held that such power is judicial in its nature, and that except as it may inhere in certain legislative bodies when they are engaged in investigations which'are judicial in their character, it can only be exercised by judicial officers.
In addition to the cases cited above there may be cited upon that principle: Kielley v. Carson (4 Moore P. C. 63); Kilbourn v . Thompson (103 U. S. 168); Burnham v. Morrissey (14 Gray, 226). It may be said that this power has been given by tire Legislature to many boards and officers whose duties are not judicial. The question of the constitutionality of those statutes is not before us. In that regard it is only sufficient -to say, as was said by Judge Gbay in WhiteomVs case, that the constitutionality of the provision committing to masters in chancery and auditors the power over wit-' nesses to punish them for contempt may admit of more doubt.
The single question presented here is whether this particular power given to a person who is not a judicial officer, and who does not hold his position by virtue of any authority of this State, is within the power of the Legislature.
*594For the reasons thus suggested, as well as for those given by Mr. Justice Ingraham, I conclude that it is not.
Ingraham and McLaughlin, JJ.., concurred.