Witmer v. District Court

McClain, C. J. Counsel for the petitioner in their argument set out at considerable length the proceedings of the lower court as shown by the record and discuss many propositions of law, some of which in the view we now take of the case need not be noticed. • Por present purposes, the following brief statement is a sufficient basis for the conclusions which we find it necessary to announce in disposing of the petitioner’s contentions: In a proper proceeding before the county treasurer of Polk county this petitioner was required to pay taxes on property omitted from assessment during the years 1904 to 1908, inclusive, to the extent of $25,575.94; the property thus found to have been omitted from assessment consisting of shares of corporate stock in a company not organized under the laws of Iowa. Prom this- finding of the coupty treasurer the petitioner appealed in due form to the district court of Polk county, and, on the hearing of the matter of said appeal, petitioner was sworn as a witness in his own behalf, testifying, in substance, that although'"'’ the shares of stock in question in the American Type Pounders’ Company chartered under the laws of New Jersey — 246 — as well as other shares of stock in the same corporation on which he had paid taxes as owner stood in his name on the books of the company for the years for which they had not been assessed to him or any other owner, having been originally purchased by him about the years 1897, 1898, and 1899, as a matter of fact the shares thus omitted from assessment were not purchased by him with his own money, but with the money of others who were and continued to be non-residents of the state of Iowa, and that the certificates for such shares of stock were immediately delivered by him to such persons with powers of attorney for the transfer of the certificates on the books of the company; and, further, that during the years in question he voted such shares of stock either personally or by proxy at stockholders’ meetings and received dividends thereon, which he paid over to the persons entitled thereto. On cross-examination the witness was asked to state the names of the persons for whom the purchases were made and to whom the .dividends were sent, and he objected to giving such information for various reasons, among others that the questions calling for it were not proper on cross-examination; that the facts called for were immaterial, irrelevant, and incompetent; and that the relation of the witness to the owners of the stock was one of confidence and the transaction of its purchase in the nature of a trade secret, the disclosure of which might be injurious to the owners of this stock, who, as stockholders in rival concerns, desired to conceal the fact of their ownership of this stock. The witness offered to produce all letters and checks in his possession relating to the transmission of dividends to the owners of the stock except that he would not disclose the names of such persons, and he offered to furnish to the court privately the names called for, for the purpose of enabling the court to determine whether they were material, with the understanding that the names thus furnished should not be disclosed by the court to any one else. The court thereupon adjudged the witness (this — 247 — petitioner) to be in contempt in refusing to answer the questions propounded to him, and sentenced him to imprisonment in the*rCounty jail until answers to such questions were made, suspending the punishment, however, until it could be determined on writ of certiorari to this court whether such order of commitment was legal. It is conceded that the district court of Polk county had jurisdiction to .try the appeal from the assessment of taxes by the county treasurer against this petitioner, and that on such trial the petitioner, having testified as a witness, was properly subject to cross-examination, and that the various questions propounded to him on cross-examination which he refused to answer were questions as to the competency of which the court was called upon to make rulings, which rulings were adverse to the objections interposed on behalf of the witness. „ i. Contempt: re* ness'to* wit" pun" certioran. The important question, as we think, arising in tHe present proceeding for writ of certiorari, is whether the correctness of the rulings of the lower court can properly be tested in this manner. The writ of certiorai’i is , one which' may be granted by this court when directed to the district court in eases “authorized by law and in all cases where” the district court “is alleged to have exceeded” its proper jurisdiction “or is otherwise acting illegally, and there is no other plain, speedy and adequate remedy,” and the petition therefor must state facts constituting a ease wherein the writ may issue. Code, sections 4154-4157-It is further provided that “no appeal lies from an order to punish for a contempt, but the proceedings may in proper cases be taken to a higher court for revision by certiorari.” Code section 4468. The contention for the petitioner is that, when the district court makes an order punishing a witness for contempt in refusing to answer questions propounded to him, a writ of certiorari to review the legality of such order is “authorized by law,” and that in such — 248 — proceeding this court may be required to determine whether the district court was in error in overruling the objections to the questions propounded to the witness, and requiring that answers thereto be made under the penalty of a punishment for contempt in refusing to answer. It seems to us that this contention has already been substantially answered in prior decisions of this court holding that it is unfounded. In the case of Finn v. Winneshiek County, 145 Iowa, 157, it was said that a writ of certiorari is not intended to supplant the ordinary remedy of appeal, and will not lie to correct rulings of an inferior tribunal which are simply erroneous, and that, where a party has a right of review by appeal, he can not ordinarily proceed by certiorari, and further, that rulings of a trial court in determining that questions asked of a witness are proper on cross-examination, and do not call for incompetent, immaterial, and irrelevant testimony, can be corrected on appeal, and are not therefore subject to review in an independent proceeding by certiorari, quoting from the opinion in the ease of Tiedt v. Carstensen, 61 Iowa, 334, in which it was held that, if the trial court is clothed with authority to decide such questions, its decision with reference thereto is not illegal in the sense that it may be reviewed by certiorari. It is time that in the Finn case the question arose upon a motion and application to the court for an order compelling the. witness to answer, the ruling of the court being that the witness should answer under penalty of contempt, and it was this order which it was sought to have reviewed by certiorari in this court, and that this court found that the case had not yet reached the stage where the petitioner might have it’reviewed because of error, with the suggestion that such review could be had on appeal, or that, if the witness refused to obey the order of the court and was adjudged in contempt and was being punished for such contempt, then possibly he might have the legality of his punishment determined in habeas — 249 — corpus proceedings. But we think the plain position of the court as indicated in that case was that error in requiring the witness to answer the questions propounded, and in finding him to be guilty of contempt on refusal could not be taken advantage of by an independent proceeding of certiorari. And this seems to have been the view of the majority of the court in the case of Iowa Loan & Trust Co. v. District Court of Polk County, 149 Iowa, 66, in which it was held that the question whether the district court acted illegally in ordering the plaintiff to produce certain books and papers could not be reviewed on certiorari, there being no question as to the jurisdiction of the court over the proceeding in which the order for the production of the books and papers was made. Indeed, the general proposition that an erroneous rilling of a- court in a proceeding of which it has jurisdiction can not be reviewed on certiorari has so often been announced that further citation of authorities would not be' justified. But counsel for petitioner seek to evade this general proposition and the authorities above cited in support of it by the contention that, while it may be applicable to the erroneous ruling of the court requiring the witness to answer, it is not applicable to the order of the court committing the witness for contempt; their theory being apparently that Code, section 4468, prohibiting appeal from an order to .punish for contempt, -but providing that -‘the proceedings may in proper cases be taken to a higher court for revision by certiorari,” expressly authorizes a review by certiorari in such cases in lieu of an appeal, and that, as irreparable injury may result from compelling this disclosure by .a witness of facts which he ought not to be required to disclose, there is no other speedy and adequate remedy than by certiorari. They cite many eases holding that the legality of a commitment for refusal to answer questions may be reviewed in a proceeding by habeas corpus, although the committing court had unquestionable jurisdic — 250 — tion of the proceeding in which the questions were propounded to the witness and was called upon to determine whether they were proper. Some of the recent cases thus relied upon are as follows: Ex parte Canada, 151 Mo. App. 704 (132 S. W. 754); In re Button, 83 Neb. 636 (120 N. W. 203, 23 L. R. A. (N. S.) 1173); In re Shull, 221 Mo. 623 (121 S. W. 10, 133 Am. St. Rep. 496); Ex parte Shortridge, 5 Cal. App. 371 (90 Pac. 478). But we see no analogy between an examination on habeas corpus to determine whether there has been a lawful commitment for contempt and a review by certiorari to determine whether an order committing for contempt has been entered without jurisdiction. The decision by habeas corpus is not in any sense a proceeding for review unless, indeed, as in the case of Ware v. Sanders, 146 Iowa, 233, this court is called upon to resort to a proceeding by habeas corpus in the exercise of its appellate jurisdiction. On the other hand, as already indicated, the review contemplated in certiorari involves only an inquiry as to the power of the court, and not the legality or correctness of its action. It would indeed be anomalous and extremely embarrassing in the speedy administration of justice if a witness might refuse to answer questions propounded to him in a proceeding of which the court had undoubted jurisdiction, and on the entry of an order punishing him for contempt in so doing, that being the only available remedy to secure answers, might have the entire proceeding suspended while he tests by certiorari the correctness of the court’s ruling that the questions are proper, and do not call for information which the witness is under no obligation to disclose. It may be that an erroneous ruling of that character might result in hardship, and a measure of injustice; but the relief to be afforded for errors of a trial court can only be such as the law provides, and counsel have failed to cite any authorities indicating that such relief is afforded by a proceeding in certiorari. In many cases, as already suggested, — 251 — such relief has been found in a proceeding by 'habeas corpus in which the contumacious witness is discharged from commitment for contempt when it appears that the commitment was erroneously ordered; and, of course, on appeal from a final judgment, the rulings of the court as to the competency of the testimony called for may be inquired into, although it must be admitted that this is no adequate remedy for any injury suffered by the witness in being compelled to disclose information which he ought not to be required to give. 2. Same: civil contempt. We are referred to many eases in which this court has on certiorari reviewed the action of a trial court in finding a party guilty of contempt for violating an injunction in liquor nuisance cases. It may be conceded that 0£ £he proceeding by certiorari is somewhat anomalous. But, at any rate, it is in no way analogous to an attempted review by certiorari of a commitment of a witness f6r contempt in refusing to answer questions. The proceeding to punish for contempt in violating a liquor injunction has for its object the infliction of a criminal punishment (Russell v. Anderson, 141 Iowa, 533) while a commitment for contempt in refusing to answer questions propounded to a witness has for its object only the securing of testimony in the trial of a case. The distinction is that which is recognized in classifying contempts as criminal and civil. A civil contempt is not an offense against the dignity of the court, but against the party in whose behalf the order is made which the person found guilty of contempt has violated, and its object is only to compel the performance of the act which the party applying for the order has been found entitled to have performed. Holbrook v. Ford, 153 Ill. 683 (39 N. E. 1091, 27 L. R. A. 324, 46 Am. St. Rep. 917); Lester v. People, 150 Ill. 408 (23 N. E. 387, 37 N. E. 1004, 41 Am. St. Rep. 375); Welch v. Barber, 52 Conn. 147 (52 Am. Rep. 567); Ex — 252 — parte Robertson, 27 Tex. App. 628 (11 S. W. 669, 11 Am. St. Rep. 207). Therefore it is clear that the cases in which this court has reviewed the action of a lower court in imposing a punishment for the unlawful sale of liquors after an injunction has been granted- against such sale have no bearing on the case before us. The distinction between criminal and civil contempts is well illustrated in cases holding that the punishment of a contumacious party or witness in a civil case for refusal to comply with the order of the court is interlocutory and reviewable only upon appeal from a final judgment or decree in the case. Doyle v. London Guarantee, etc., Co., 204 U. S. 599 (27 Sup. Ct. 313, 51 L. Ed. 641); In re Christensen Engineering Co., 194 U. S. 458 (24 Sup. Ct. 729, 48 L. Ed. 1072); Jastram v. McAuslan, 29 R. I. 390 (71 Atl. 454, 17 Ann. Cas. 320, and note). Our statute prohibiting appeals from orders punishing for contempt would seem to preclude an intermediate review of such- an order, and leave to the party adjudged to be in contempt on refusal to comply with the order the remedy of certiorari only when the trial court has exceeded its jurisdiction in making such order and 'not when the order is merely erroneous. Error in this respect can unquestionably be reviewed on final appeal, but the statute seems to preclude an intermediate review by appeal or in the nature of an appeal by certiorari. c review aof°n: ruimg. Even if it should be conceded that an intermediate order of punishment for civil ■ contempt could be shown to be so clearly beyond the exercise of a reasonable discretion on the part of a trial court as to warrant the interference by certiorari, no such case £s jjere ma(je out. Plainly the ruling of the court that the questions propounded to the witness were proper on cross-examination was not such an abuse of discretion as to render the commitment for contempt in refusing to obey the order wholly illegal, for the matter -of cross-examination is very largely in the court’s discretion. — 253 — It is equally plain that no question of trade secrets was involved. It may be that names of persons are sometimes classed as trade secrets; but it does not appear that the names of the persons to whom the witness transferred these shares of stock were his trade secrets.' He does not pretend that any injury would result to him from the disclosure of such names. The secret sought to be protected was the secret of the persons to whom the stock was transferred and those persons are not here complaining. The contention of the petitioner that the information sought to be elicited from him was wholly incompetent, immaterial, and irrelevant, as evidence in the case is predicated on the théory that it could only be used by the adverse party for purposes of impeachment, and that any intention to impeach the petitioner as a witness was disclaimed. But the information sought would have enabled the adverse party to secure other witnesses who could testify with reference to the facts testified to by the petitioner, and evidence of that character would not be admissible simply for the purpose of impeaching his testimony, but as independent testimony as to the same state of facts. 4‘ ofMexamina-e A witness may properly be required to fully explain and give information in regard to a transaction about which he has testified in order to enable the adverse party to investigate the truthfulness of the facts thus testified to. Wallace v. Wallace, 62 Iowa 651; Ward v. Thompson, 146 Wis. 376 (131 N. W. 1006). We think, therefore, that the record does not disclose any such'abuse of discretion on the part of the trial court as to justify us in holding that its rulings were so-unwarranted as to be illegal or without jurisdiction within the meaning of the statutory provisions as to certiorari, and the writ is therefore dismissed.