1. Witnesses subpoenaed by a notary public to give depositions,
pursuant to § 11529 of the General Code of Ohio, failed to attend,
and
Page 289 U. S. 460
when attachments were issued by the notary under § 11511
commanding that they be brought before him to give their testimony
or to answer for contempt, they surrendered themselves to the
sheriff, who held the process. They then immediately applied to the
state court of appeals for writs of habeas corpus, with the result
that, after hearings, they were remanded by that court to the
custody of the sheriff, and the judgments were affirmed by the
supreme court of the state, from which they appealed here.
Held that, by their conduct, they were precluded from
asserting that they were denied a hearing by the notary. P.
289 U. S.
463.
2. In Ohio, as generally elsewhere, testimony by deposition is
taken subject to the right of the parties -- not of the witness --
to object to its admissibility at the trial. P.
289 U. S.
463.
3. A witness in a deposition proceeding (Gen.Code of Ohio, §
11529,) who flatly refuses to answer any further questions is
guilty of a patent contempt, and his commitment by the presiding
notary (
id., § 11512) without further hearing is
consistent with due process of law. P.
289 U. S.
464.
So
held irrespective of whether the notary would have
been empowered by the state law to pass upon objections, if raised
by the witness on the ground of privilege, and without considering
whether if he lacked that power the hearing in court afforded by §
11514 of the Code, to review commitment by the notary, would
satisfy due process.
4. Commitment of a witness, subject to review by the state
courts, because of his refusal to give a deposition before the
committing officer is not lacking in due process because the
officer's statutory fees and his charge for extra copies are
measured by the folios of testimony taken.
Tumey v. Ohio,
273 U. S. 510,
distinguished. P.
289 U. S.
465.
126 Oh.St. 126, 184 N.E. 343, affirmed in No. 784.
In Nos. 785 and 786, appeals dismissed for want of a federal
question.
Appeals from judgments affirming judgments of the Court of
Appeals of Ohio in habeas corpus proceedings whereby the
petitioners, Bevan
et al., were remanded to the custody of
the sheriff. The opinion of the Court of Appeals is reported in 12
Oh.Law Abstract 598. A collateral remedy was sought by habeas
corpus in a federal court, as to which this Court refused a writ of
certiorari, 287 U.S. 665.
Page 289 U. S. 461
MR. JUSTICE ROBERTS delivered the opinion of the Court.
The three judgments from which these separate appeals are
prosecuted have a common origin, are founded upon the same Code
provisions, in the main present related questions, and may be
reviewed in a single opinion.
Suit was instituted in an Ohio court by Clara Sielcken-Schwarz,
as widow and sole legatee of Herman Sielcken, against the Woolson
Company (of which the appellant Bevan is secretary and treasurer),
Koehrman, Stranahan, and others, to obtain redress for an alleged
fraudulent scheme whereby her deceased husband's executor, The
Columbia Trust Company, was induced to part with certain capital
stock of that corporation. The plaintiff, desiring to take the
depositions of the three appellants, proceeded as provided by the
General Code of Ohio.** Subpoenas
duces tecum were served
upon Bevan and Koehrman, and a subpoena
ad testificandum
on Stranahan. A notary public was named to take the testimony, and,
at the time and place appointed, Bevan appeared before him, was
sworn,
Page 289 U. S. 462
answered some questions, declined to answer others, and finally
declared that he would answer no more. In each instance, he was
enjoined by the notary to answer, and in each case stated that he
refused on the advice of counsel. He also failed to produce papers
and documents called for in his subpoena, although he admitted that
he had them in his possession or under his control, and in this
matter also gave as his excuse advice of counsel. He did not claim
personal privilege or possibility of self-incrimination, but he and
his counsel contented themselves with the statement that the
questions and the writings were immaterial and irrelevant to any
issue in the suit. Koehrman and Stranahan failed to appear in
response to the subpoenas served upon them. The notary, upon the
plaintiff's request, issued a commitment of Bevan for contempt, and
attachments for the other two appellants. These writs were
delivered to the sheriff for service. All three appellants
surrendered to that official and applied to the Court of Appeals of
Lucas County for writs of habeas corpus. After hearings, that court
remanded each to the custody of the sheriff. The Supreme Court
affirmed the judgments.
In the courts below and here, the appellants have insisted that
the statutes of Ohio authorizing their arrest and detention deprive
them of due process. The sections of the General Code drawn in
question are 11510, whereby disobedience of a subpoena and refusal
to be sworn, or an unlawful refusal to answer as a witness, may be
punished as a contempt of the officer by whom the attendance or
testimony of the witness is required; 11511, which authorizes the
notary to issue an attachment to arrest and bring before him the
person subpoenaed to give his testimony or answer for his contempt,
and § 11512 which fixes the penalty for contempt:
"When the witness fails to attend in obedience to a subpoena,
the court or officer may fine him not over fifty
Page 289 U. S. 463
dollars; in other cases, not more than fifty dollars nor less
than five dollars; or he may imprison him in the county jail, there
to remain until he submits to be sworn, testifies, or gives his
deposition."
By § 11514, it is provided that a witness so imprisoned by an
officer may apply to a judge of the supreme court, court of
appeals, common pleas, or probate court, who may discharge him if
it appears that his imprisonment is illegal.
The appellants' position is that, since the statute requires the
witness to answer only lawful questions, and the notary, not being
a judicial officer, is not permitted to pass upon the lawfulness of
a question, but is bound to commit for refusal to answer, the
commitment without a prior judicial hearing and provision for such
a hearing only after commitment (§ 11514) is a denial of due
process.
Koehrman and Stranahan fail to present a federal question. Both
of them, without excuse, absented themselves from the taking of the
depositions. The writs of attachment issued to bring them before
the notary for contempt were not served. While the sheriff held the
process, these appellants sought him out, surrendered to him, and
immediately applied for writs of habeas corpus. Their conduct
precludes the assertion that they were denied a hearing by the
notary. They asked for none, and by their action rendered one
impossible.
Bevan's case differs but slightly from those of Koehrman and
Stranahan. He refused to answer questions or to produce the
writings enumerated in his subpoena. The notary thereupon, after
adjourning the hearing until the following day, issued the
commitment. Bevan surrendered himself to the sheriff and by habeas
corpus challenged the legality of his detention.
In Ohio, as generally elsewhere, the officer taking a deposition
does not rule upon the competency or materiality
Page 289 U. S. 464
of the evidence to the issues made by the pleadings. The
witness' testimony is taken subject to the reserved right to object
to its admissibility at the trial. The right of objection and
exclusion belongs to the parties, not to the witness. So far as
disclosed, the refusal to answer and produce documents was based
solely on the theory that the petition in the suit did not state a
cause of action, and that the depositions constituted a fishing
expedition for evidence. But the appellant now insists that, aside
from their irrelevancy, which was the ground of refusal to answer,
the questions propounded may have been improper as trenching upon
the personal privilege of the witness, although he indicates no
aspect in which this might be true. He says that it would have been
useless for him to raise the issue before the notary because, under
the decisions of the Ohio courts, the latter is not a judicial
officer invested with power to pass upon such an issue; that
therefore a witness must take the risk that he is correct in his
refusal to answer, and may vindicate his action only before a court
after commitment, in accordance with § 11514.
In Ohio, a notary has been held not to be a judicial officer
within the meaning of the state constitution; but we think that he
may nevertheless be authorized to pass upon the witness' privilege.
We find no decision of the Supreme Court of Ohio holding the notary
incompetent to consider and to pass in the first instance upon the
propriety of a witness' refusal to answer. No such lack of power
appears upon the face of the statutes. The appellant admits this,
but asserts that the Code provision has been construed by the
courts to prohibit the notary from passing on the witness' reasons
for refusal to testify. We are not convinced that the state courts
have so interpreted the statute.
Page 289 U. S. 465
But we deem it unnecessary to pursue the inquiry, or to express
any view as to the adequacy of the hearing afforded after
commitment by § 11514, for the reason that the alleged deprivation
of appellant's liberty was consequent upon his sweeping statement
that he would answer no further questions. Such conduct by a
witness in any court would be sufficient ground for his commitment
without further or other hearing. Such an attitude indicates no
desire for a hearing upon the propriety of the questions, but, on
its face, constitutes a contempt. Bevan requested no consideration
of his rights by the notary, and was denied no hearing by that
officer upon the issue whether the questions infringed his personal
privileges as a witness. His claim that he was denied due process
is therefore without foundation.
The appellant Bevan also advances the contention that the notary
had such a pecuniary interest in compelling the testimony as would
disqualify him, and deprive his rulings of the impartiality
required for due process. Notaries are entitled to fees of 25 cents
per hundred words for taking and certifying depositions (General
Code Ohio, §§ 127, 1746-2). These are paid in the first instance by
the party taking the depositions, and are taxable as costs in the
suit. It appears from the record that it is also customary for the
notary, if, as in this case, he happens to be a stenographer, to
take the testimony stenographically and to furnish additional
copies to the parties at a charge somewhat less per hundred words
than is provided in the statute. These facts are said to bring the
case within the principle announced in
Tumey v. Ohio,
273 U. S. 510. But
we think the suggested analogy does not exist. Tumey, as mayor of a
city, sat as a magistrate. His judgments were final as to certain
offenses unless wholly unsupported by evidence. The law awarded him
a substantial
Page 289 U. S. 466
fee if he found an offender guilty, and none in case of
acquittal. Tumey's interest was direct and obvious, but the
possibility that the extent of the notary's services and the amount
of his compensation may be affected by his ruling is too remote and
incidental to vitiate his official action. Moreover, his action
lacks the finality which attached to the judgment in the
Tumey case, as it is subject to review in accordance with
§ 11514.
No. 784, judgment affirmed.
Nos. 785 and 786, appeals dismissed.
* Together with No. 785,
Koehrman v. Krieger, Sheriff,
and No. 786,
Stranahan v. Krieger, Sheriff.
** Either party may commence taking testimony by deposition at
any time after service of process (§ 11526), before a judge or
clerk of a court, a justice of the peace, a notary public, and
certain other designated persons (§ 11529). Notice of intention to
take depositions must be given (§§ 11534, 11535). The officer
authorized to take the depositions may issue subpoenas, including
subpoenas
duces tecum, and provision is made for service
upon the witness (§§ 11502-11504). A party, or, if the party be a
corporation, any officer thereof may be examined as if under
cross-examination (§ 11497).