The sole question here is whether section 920 of the Code of Civil Procedure is or is not unconstitutional. If it is, then there' is no constitutional provision of law to. compel a witness to testify in this State under a foreign commission. For it was held in the Matter of Searls (155 N. Y. 333) that a justice of the Supreme Court was without power to hear or determine an application to punish such a witness for refusing to answer questions put to him before a commissioner. The power to so punish, said the court in that case, rested exclusively with the commissioner under this section. The .point now raised is a narrow one. It is said that the witness is deprived' of due process of law, first, because the pertinency and propriety of the questions which he refused to answer were determined by the commissioner, and, second, because the commitment which followed his refusal was granted and signed by that officer. The claim is, .that the commissioner is not a judicial •officer, and that the witness could be constitutionally deprived of his liberty only by the act of some member of the judiciary of the State. While agreeing with the general view of this subject expressed by Brother Ingraham, I am unable to concur in his application of certain well-settled principles to the precise case under consideration. The point of divergence between us is. where the application of these principles begins. The provision of the Constitution was, in my judgment, primarily aimed at a direct attack ■upon the individual; that is,, at any act or proceeding the immediate purpose of which is to deprive him of life, liberty or property.
The cases of Langenberg v. Decker (131 Ind. 471) ; Whitcombs Case (120 Mass. 118) and In re Huron (58 Kans. 152) are examples of this view, although in one of them (the Indiana case) the court rested'its judgment upon a special provision of the Constitution of the State in terms excluding one department of the government from exercising any of the functions of another. Here, however, there is no proceeding against the individual; nothing whatever aiming at a deprivation of his life, liberty or property. The law of our State requires him to give certain information, to testify to facts *595within his knowledge. The direct object of the proceeding beats solely upon the rights of others, namely, the plaintiff and the defendant in the action. The witness’ testimony may affect the property of these others ; it cannot seemingly affect his. He has apparently no interest whatever either in the litigation or in the deposition. The proceeding here does not directly touch his life, liberty or property Even as a mere witness, however, he is doubtless entitled to “ due process of law,” for the proceeding may possibly affect him indirectly. But what is due process of law as to him f Plainly, the service of a subpoena issued by competent authority, requiring bis attendance before a particular person authorized by the law of this State to take his deposition, at a particular place, on a particular day and hour. That he had in, the present case. The law gave it to him. The law also provides that he shall attend before the particular person so authorized by it to take his deposition at the time and place named in the subpoena, and then and there testify to facts within his knowledge. The same law provides, in substance and effect, that, in case of his refusal to so attend, or upon attendance to so testify, he shall be deprived of his liberty until he complies. Where is the violation of liis constitutional rights in this legislation ? The ob ject of the proceeding was not to restrain him of his liberty, but to secure his testimony. The restraint is but in aid of the real purpose. And, further, he was not punished in the ordinary sense of punishment. No fine was imposed upon him ; no specified term of imprisonment awarded. The law simply "enforced its mandate. Under the law commitment directly follows non-compliance as effect follpws cause. No further exercise of judgment intervenes between the refusal and the commitment. The moment the witness complies he is free. . Until then, as between confinement and obedience, he chooses the former. The Code, it is true, provides for a formal commitment to be signed by the commisgioner. That, however, was unnecessary. The law would have been constitutional, and equally effective, had it simply provided that the sheriff should take the witness into custody and confine him upon the commissioner’s certificate or record of non-compliance.
It is, however, contended that the law must limit its authorization to act as commissioner to one who is a member of the judiciary of the State. It will not suffice, in this view, should the commissioner *596named in the dedimus potestatem be in fact a member of -that judiciary. The reasoning is that such an appointment would be but an act' of courtesy on the part of the foreign court. In that case, too, the judge named in the dedimus would act here,' not as a judge, but as commissioner. The law, then, so the argument runs, is unconstitutional, because it does not, in terms, confine the foreign court’s area of Selection to the members of our own judiciary. Upon that postulate the fact that the commissioner in the present case is a notary public, appointed under our own law and intrusted thereby / with important function's, is treated as beside the question. He may be a judicial. officer of the State, and our highest court may even have held that his duties are of a judicial character. ' (People v. Rathbone, 145 N. Y. 434; Matter of Searls, supra.) But that does not help the law. As commissioner he is acting, not as a notary public, not as a public or judicial officer, but simply as the agent of the foreign court. That court might have appointed some one who was not a public or judicial officer of this State. Consequently the law is unconstitutional.. It is thus unconstitutional because it does not set its face against this— because, in fact, it does not affirmatively require the appointment as commissioner- of one of our own classified judicial officers; and it cannot be validated by the accident of the appointment as commissioner of one who happens to be such an officer. This reasoning seems —■ with respect, be it said —.like a travesty upon due process of law as applicable to a witness. Its fundamental fallacy is in failing to distinguish between powers ■ which, under the Constitution^ can only be exercised by the judiciary, and powers of a quasi-judicial character, which the Legislature is constitutionally authorized to confer upon whom it pleases. The power to determine the. pertinency and propriety, •quoad a witness, of a question propounded under a foreign commission, is clearly within the' latter category. It is intrusted to the commissioner because it is but a subsidiary function in the preparatory phase of the litigation. It is based upon the sensible theory that the substantial rights of the witness do'not demand that the judiciary should be burdened with such trivialities. There is nothing in the Constitution which requires the personal intervention of the judges in all subsidiary matters, even though such matters call for the exercise of a certain amount of judgment; and a law impos*597ing a duty upon others with regard to such subsidiary matters will not be declared invalid if it can fairly be upheld. It is for the Legislature, within reasonable limitations, to say what are strictly judicial' functions, which can be exercised- only by judges of the court, and what are minor, formal or subsidiary functions, which may be intrusted tb clerks, assistants or other persons. In the latter category, by almost universal comity, have been embraced commissioners appointed to take depositions outside of their respective States. The courts making such appointments invariably reserve to themselves their appropriate judicial functions, leaving it to the commissioner to pass only upon the general pertinency of the testimony. The just distinction between judicial and subsidiary functions is thus made. The pertinency and propriety of questions, quoad a witness, have no necessary relation to their competency or ultimate admissibility upon the trial. A decision upon the latter -head is strictly judicial to be made only by the judges of the court in which the action is pending-. The decision as to the pertinency ■ of the evidential material to be subsequently subjected to judicial scrutiny is a subordinate function, which may be properly delegated to others. So far as the witness is concerned, a question is pertinent if within the general scope of the inquiry; and it is proper if it invades no right of his as such witness. It is said, however, that even within this limited power the commissioner may possibly wronger oppress the witness. Any one upon whom power is conferred may, of course, abuse his power. Should the commissioner do so, 'should he direct the witness to answer questions which are wholly impertinent or personally indecent- — seemingly a rather far-fetched idea — the remedy by certiorari, with a stay of the commissioner’s determination pending review, is open to him (Code Civ. Proc. § 2131), and it seems to be reasonably adequate to protect him against mere insult or oppression. If, then, this minor function, namely, that of determining what is generally pertinent to the inquiry, be constitutionally conferred upon the commissioner, the witness surely has due process of law; and it only confuses the real question on that head to dwell in the same connection. upon the formal means adopted by the Legislature to compel submission to the exercise of the'power. If the primary power exists, the secondary follows as a sequential mandate, legislatively directed. *598The commissioner exercises no further judgment, much less discretion, on the subject of the commitment. Having lawfully decided that the questions are pertinent and proper, his quasi judicial power of determination is exhausted, and upon non-compliance the commitment follows, in effect ministerially. , His signature thereto is simply the sheriff’s authority to hold the witness until lie answers. It cannot be withheld. Having once passed judgment upon the pertinency and propriety of the question, he must compel an answer by exercising the powers of a justice of the peace upon a trial. .
In the precise, case presented by this record it might be said that these considerations are in á measure academic, for it will be observed that there is here absolutely no question with regard to the witness’ rights as such. He did not decline to speak upon the ground that his answers would tend to criminate or degrade him. He simply refused — without any assigned reason — to speak at all. He raised no question whatever as to the propriety of the questions propounded, or as to their relevancy or competency. He had, indeed, nothing to do with their relevancy or competency. Hor, as we have seen, had the commissioner. That officer’s judgment was limited to-the pertinency and propriety of the questions ; that is, to determining whether they were entirely foreign to the litigation, or were within its general area. All else was left to the court from which the commission issued. In all else, too, the parties to the litigation were alone interested. Thus the commissioner here made no adjudication upon the witness’ rights.. He simply decided that the questions propounded were within the general scope of the litigation between the parties. That was not an adjudication for or against the witness. It was simply a prerequisite to commitment for refusal to answer a question which, as to him, was pertinent and proper. But even if the commissioner had adjudicated upon the witness’ rights, the conclusion would be the same. The only right which the witness has is his privilege with regard to answers tending to criminate or degrade him. If any question had arisen here on that head, and the commissioner had passed upon it adversely to the witness, his action, as already indicated,, could have been reviewed by certiorari, and the execution of his determination in the meantime stayed'. Such action on the commissioner’s'part would have been, as to the witness, in its nature judicial, just as is the action of legis-. *599lative committees, and of certain boards and commissioners exercising judgment in matters within their jurisdiction. The commissioner’s action here would be thus re viewable (and due process of law thereby further extended to the witness), because he would to that extent exercise judgment upon a subject-matter over which the Legislature had (constitutionally) given him qualified and limited jurisdiction. ■ In the concrete issue now presented, however, the latter question does not arise. As there was no adjudication against the witness his attitude was this : ■— being required by law to speak, and giving no reason whatever why lie should not speak, he capriciously remained mute. It seems to me an extraordinary proposition that at this stage the statute in question deprived the witness of due process of law merely because the mittimus, was not required to be signed by some member of the judiciary of the State. It might as well be said that the Code provision which permits an execution against the person to be signed by an attorney is unconstitutional. In the latter case the statute gives the defendant due process of law when it requires a preliminary verdict in tort to be rendered against him. In the case at bar, it gives the defendant due process of law when it requires him, upon being duly subpoenaed, to appear and answer a question which the commissioner lawfully determines to be pertinent and proper. It is that lawful determination and that alone which authorizes and compels the commitment.
.By an act passed in 1887 (Chap. 213) the Governor is empowered to issue subpoenas in any matter pertaining to an application for clemency, and to compel witnesses to appear before him and answer. Section 5 of the act provides that the Governor shall possess all the powers in relation to such. provisions which are possessed by any court or judge. Is this section, too, unconstitutional, because the Governor is not called upon to go to the judiciary for the enforcement of his mandate? He has, it is said, jurisdiction over the subject-matter of pardons, but still the question remains, could the Legislature constitutionally confer, upon the executive the power to commit a witness ? The answer, it seems to me, must clearly be in the affirmative. The Governor could exercise no such power under the general provision of the Constitution with respect to pardons. The Legislature aloné could confer it. It is the statute law of the land which there requires the witness to attend and answer, and the *600requirement- is constitutional. It is the statute law, too, which provides for the recalcitrant witness’restraint until he answers, and that is equally constitutional. Underthe act of 1887 the Governor is authorized, to appoint a person to conduct the hearing. It would, in my judgment, be entirely constitutional had the act provided for the restraint of the recalcitrant witness upon the proper certificate of such person showing the recalcitrancy.
Acts like that under consideration are to be' found in many of our sister States. They proceed upon principles' of comity.- Sister States, quite as much as the courts of different countries, are mutually bound to lend each other aid to promote the ends of justice. ■ Efforts have frequently been made in • the courts of other States, under circumstances like the present, to secure the discharge of recalcitrant witnesses on habeas corpus. These efforts have invariably failed. In none of the cases, however, relating to commitments by notaries public has this constitutional question been discussed. (Ex parte McKee, 18 Mo. 599; Ex parte Priest, 76 id. 229; In re Abeles, 12 Kans. 451.) Until now no one, it seems, has ventured to present it. In Ex parte McKee it is said that “A notary public being, authorized to take depositions, and having the same powers for.that purpose as -are conferred on justices of the peace, may summon a witness before him, and may enforce his attendance if he fails to attend, and if he attends, and refuses to give evidence which' may lawfully be required to be given,- the notary may commit liirii to prison until he gives the evidence!
■ To sum the matter up, in the case at bar the commissioner was empowered, by the law of this State, to take the deposition-. So far that law was surely constitutional. It gave the commissioner jurisdiction over, the subject-matter, namely, the deposition, a jurisdic-' tion which he thus exercised under the direct confirmatory authority of this State. Possessing that jurisdiction thus directly conferred upon him by our .law, the -commitment was but ancillary thereto, an incident to its effective exercise. As in the Governor’s case,, the provision but gave effect to the constitutionally granted jurisdiction. Neither in the conferring of such jurisdiction, nor in the requirement to-answer pertinent and proper questions, nor in the power given to the commissioners to determine what are pertinent and j)roper questions; nor yet in the method provided for compel*601ling answers to such questions, is the witness deprived of due process of law within the meaning and intent of the Constitution. The law itself points out the “ process ” throughout; and it is “ due process,” in that the witness is to be properly subpoenaed, is to be brought face to face with the commissioner, is to be there commanded to answer as required by an officer duly authorized by the law, and upon his refusal is to be restrained of his liberty only until he so answers. The substance of the commitment is the recital by the commissioner of the jurisdictional facts. , The rest is mere matter of form.
The logical result of the opinion of the majority of the court is that no law for the taking of depositions in this State to be used in a sister State is constitutional which permits the due execution of the commission by one who is not a member of the judiciary of the State as defined in the Constitution. The practical effect of such a decision is to put an end to commissions and to relegate our State to letters rogatory. If, however, a law which authorizes the commissioner appointed by the courts of a sister State to execute such commission here, and as a part of his duty to pass upon the pertinency and propriety of the questions propounded to a witness thereunder, be constitutional (and I venture to suggest that its constitutionality has never before been questioned), then surely it is constitutional to provide for its enforcement in the manner here indicated. When the witness has been duly subpoenaed, has appeared before the commissioner and been sworn, and has refused without reason to answer, the mittimus at once runs against him, not, as we have seen, as an independent exercise of judicial power, but, in substance and effect, as the absolute mandate of the law. It follows immediately and directly upon his refusal to answer. Upon the statutory pre-requis ites being complied with the commissioner has no discretion to grant or withhold it. . He must thereupon exercise that particular power of a justice, of the peace upon a trial. Hor would even a judge — had the act required the mittimus to be signed by such an officer — have any such discretion. In either case, compliance with the plain statutory duty could be compelled by mandamus.
I am, therefore, of the opinion that the section of. the Code in question is constitutional, and that the order appealed from should be reversed and the prisoner remanded.
Order affirmed, with ten dollars costs and disbursements.