In re Davies

[794] The opinion of the court was delivered by Smith, J. : Counsel for petitioner contends that the discharge of the the grand juror Lindner was an arbitrary act of the court, without justification in law, and that the substitution of another person in his stead divested the grand jury of jurisdiction to inquire concerning crimes committed in the county, or to indict persons therefor. It is unnecessary to discuss the question further than to say that the grand jury, when it propounded the question which the petitioner refused to answer, was at least a defacto body. ( The State v. Marsh, 13 Kan. 596; In re McElroy, 10 Kan. App. 348, 58 Pac. 677 ; The State, ex rel. Dunn, v. Noyes, 87 Wis. 340, 58 N. W. 386, 41 Am. St. Rep. 45, 27 L. R. A. 776; In re Gannon, 69 Cal. 541, 11 Pac. 240; Ex parte Haymond, 91 id. 545, 27 Pac. 859.) The four cases last cited hold to the doctrine that the legality of a de facto grand jury cannot be inquired into on hateas corpus proceedings for discharge from commitments based on indictments found by such body, under the rule that the acts of de facto officers cannot be questioned collaterally. (See, also, Andrews v. Swartz, 156 U. S. 272, 15 Sup. Ct. 389, 39 L. Ed. 422.) It is next insisted that the petitioner should be discharged because the matter concerning which he was interrogated was privileged, and that to require a disclosure by a banker of the amount standing to a depositor’s credit on the bank books would be against public policy. Counsel, thus contending, frankly admits that he has found no adjudicated case which sustains his position. The relation of debtor and creditor exists between a depositor and a banker. By the inquiry in this case, it was sought to ascertain how much the bank owed Bellringer on March 1. The ordinary [795] debtor would hardly stop to assert a privilege in his behalf to protect him from disclosing the amount owing by him to another. Again, it is argued that to permit grand juries or courts to inquire into such private affairs of business men would cause withdrawal of deposits from banks annually for many weeks preceding the 1st of March — some to escape taxation, others to avoid publicity. It is a sufficient answer that annoyance to depositors or the loss to banks predicted by counsel has never appealed to courts or legislatures with enough force to work a change in the rules of evidence. In the case of Loyd v. Freshfield, 2 C. & P. 325, decided in 1826, it was held that a banker was bound to answer what a party’s balance was on a given.day, as it was not a privileged communication. The rule finds approval in the textbooks. (1 Tayl. Ev., Am. ed., §916; Greenl. Ev., 15th ed., §248. See, also, Mackenzie v. Taylor, 6 L. C. J. 83; Hannum v. M’Rae, 18 Ont. Pr. Rep. 185.) The contention that to compel a disclosure from the witness would be an unreasonable search for and seizure of the depositor’s property is untenable. To obtain information from a witness of the amount and location of another’s money or property cannot come within the constitutional inhibition against unreasonable searches and seizures. There was nothing confidential, in a legal sense, between Davies, the bankerc and his depositor, which would allow the former to assert that the business transactions between them were privileged. The writ of habeas corpus will be denied and the prisoner remanded. All the Justices concurring.