I concur in the judgment, upon the ground that the respondent, as judge of the superior court, is expressly given power by section 1991 of the Code of Civil Procedure to punish for contempt a witness who has disobeyed a subpœna issued by the judge under section 1986. It matters not that authority to take depositions is also given by the code to officers not entitled to exercise judicial functions — as a notary public — and upon whom the power to punish for contempt could not be conferred by the legislature. And, in my opinion, it matters not whether the deposition to be taken before the judge is or is not in a case pending in the court over which the judge presides. The case at bar is entirely outside of the Lezinsky case. In that case a witness disobeyed a subpœna not issued by the court, or even by a judge thereof, but by a notary public.
Rehearing denied.
Angellotti, J., and Lorigan, J., dissented from the order denying a rehearing, and the former filed the following opinion on the 8th of October, 1903: —