delivered the opinion of the court.
The question presented is whether the Circuit Court of Cook County, Illinois, could, either upon the doctrine of comity or under the provisions of our statutes, punish a witness as for contempt, who had refused to obey the subpoena of a notary public of the county, who had been commissioned by the District Court of Linn County, Iowa, to take the deposition of such witness.
Under the provisions of the statute, section 36, chapter 51, Rev. Stat., the court could not enter the order appealed from. That statute has been construed by the Supreme Court in Puterbaugh v. Smith, 131 Ill. 199; and so much thereof as might authorize such summary proceeding by the Circuit Court was by that decision declared unconstitutional. The court said: “ Where a person refuses to appear before a notary public and give his deposition, in obedience to a subpoena issued by him, it may be truly said that he acts in contempt of the authority of the notary; but how can it be said that he thereby acts in contempt of the Circuit Court, or of the judge of that court? He owed, by reason of the service of the subpoena, no duty to the Circuit Court or to the judge thereof. As to the Circuit Court and its judge, his failure to obey the subpoena simply places him in the same situation as all other willful violators of the law. * * * It (the General Assembly) can not make that punishable as a contempt which, in the nature of things, can not be a contempt of the authority imposing the punishment. * * * But where an individual is being proceeded against in one tribunal for an act done in the presence and in derogation of the authority of a different tribanal, the ability of the trial tribunal to exercise its proper functions is not involved. The act charged had no tendency to hinder or delay it in the lawful execution of its authority. * * * Wherever there is a criminal prosecution, and that is always the case where the proceeding is an original one to have the party punished for a violation of a statute, the defendant is entitled under the Constitution to a jury trial. So much of the present statute, therefore, as authorizes the circuit judge to proceed summarily and without a jury, being contrary to the Constitution, is void, and not law.”
Neither can the order in question be justified upon the doctrine of comity. It is true, as argued by counsel for appellee, that the courts of one jurisdiction will aid those of another in the obtaining of testimony. But not by such summary proceeding. Courts of chancery have frequently assumed jurisdiction to aid the prosecution of a civil suit in a sister State, and to that end have entertained bills of discovery. The decisions cited by counsel are in cases where jurisdiction was obtained either by the exhibiting of bills of discovery or under letters rogatory.
Where a commission issues from a foreign court to a person not vested with judicial authority, the proceedings before him, in the absence of statutes, are voluntary. Wharton on Conflict of Laws, 723; In re Bushnell, 44 N. Y. Supp. 257; In re Searls, N. Y. Court of Appeals, reported in the National Corporation Reporter, Vol. 16, p. 388.
We have a statute providing for the proceeding before such a commissioner, but the interpretation of that statute by our Supreme Court has been noted; and this order can not be sustained as “an original proceeding to have a party punished for a violation of the statute,”
The order is reversed.