Ex Parte Rowe

Burnett, J., after stating the facts, delivered the opinion of the Court—Terry, J., concurring.

In reference to the first objection, it would certainly seem to be more regular again to propound the questions by the Court, and then, upon the refusal of the witness to answer, to make the order of commitment. But this objection does not seem to be of sufficient force to require this Court to discharge the prisoner.

The second objection brings up the question, whether this Court can review, on writ of habeas corpus, the decision of an inferior Court in a case of contempt. If the decision of such inferior Court in a ease of contempt be final and conclusive, then [182]there is no propriety or necessity in requiring the questions asked and refused to be set forth. It is only upon the ground that this Court can grant relief against an erroneous commitment for a refusal to answer as a witness, that a statement of the questions propounded should be made. If we cannot consider the question whether such interrogatories were legal and proper or not, then we have no right to ask that Court to set them forth.

It is evident, that under the provisions of the four hundred and eightieth section of the Practice Act, contempts, either actual or constructive, may be committed in a great variety of cases; and in those eases where the alleged contempt consists in the disobedience of writs, or orders of the Court, or Judge at Chambers, and in refusing to answer questions as a witness, the contempt can only consist in disobeying legal writs or orders, and in refusing to answer legal questions propounded to the witness.

The question, what are legal writs, orders and questions, is one of law simply, and is, therefore, often of the most difficult and complex character. Was, it then, intended, that in reference to every such legal question, involving so many interests, there should exist no right of review by another Court ? Was it intended that in reference to these questions, there should exist no power to correct errors and harmonize conflicting opinions ? Or was it, on the other hand, intended that the decision of all •Courts, in cases of contempt, should be subject to the review of every County and District Court, and of every single Judge of those Courts in the State ? What efficiency or harmony is there in a system that either allows no remedy against the errors of inferior Courts, in a certain class of cases, or allows nearly all the Courts of the State, and individual Judges of the same, to defeat the judgment of all ? If, indeed, this Court can never relieve a witness when he refuses to answer an illegal question, then the leading idea of a due subordination of inferior to superior Courts is entirely inapplicable to this important class of questions.