I concur in the conclusion reached by Mr. Justice INGE AH AM in his opinion; and in view of the importance of the •question to be determined, 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 of 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 .pre*879seated 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. In re Searls, 155 N. Y. 333, 340, 49 N. E. 938. 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 determinátion. Having the power, if he determines that the question is pertinent and proper, and the party procuring the examination Brakes 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 directly 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 shall 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 person 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 shall be selected or appointed (article 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. 27oth-ing of the sort is pretended to have been done in the case of this commissioner. His appointment is derived solely from the court of Colo*880rado, 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 he 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 to consider. I have no doubt that it is a power to puhish as for a contempt of court. It is so spoken of and regarded by all the cases with which I am familiar. Rutherford v. Holmes, 66 N. Y. 368; Whitcomb’s Case, 120 Mass. 118; People v. Keeler, 99 N. Y. 463, 2 N. E. 615. 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 he 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. In re Searls, 155 N. Y. 333, 340, 49 N. E. 938. That determination lies at the foundation of the power to commit. Until that is made, the witness cannot be compelled tó answer, nor can he be committed for 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 the interrogatories is a matter of no importance. For 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 exerted under the law of the land by a competent judicial tribunal, which has jurisdiction in the premises. 6 Am. & Eng. Enc. Law (2d Ed.) 1058; Interstate Commerce Commission v. Brimson, 154 U. S. 485, 14 Sup. Ct. 1125.
This conclusion was reached by the supreme court of Massachusetts in the Whitcomb 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 W7hitcomb had been summoned to testify before a special committee 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 them duties; that, as such witness, a certain material question was propounded to him, which he refused to answer. Thereupon, in pursuance *881of 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. Upon 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 Gray, in examining the question, determines, in the first 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 should 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, 31 N. E. 190; In re Huron, 58 Kan. 152, 48 Pac. 574.
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 determined 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, Kieley 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 the 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 Gray in Whit-comb’s Case, that the constitutionality of the provision committing to masters in chancery and auditors the power over witnesses 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.
For the reasons thus suggested, as well as for those given by Mr, Justice INGRAHAM, I conclude that it is not.