McFarland, J., dissenting. dissenting.I dissent. This is an original petition here by H. M. Levy for a writ of prohibition to be directed to the superior court of the city and county of San Francisco, Department No. 9, and Hon. J. V. Coffey, judge thereof, commanding said court and said Coffey to refrain from further prosecuting a [612]certain proceeding instituted in said court against said petitioner. An alternative writ was issued; and on the return day the respondent demurred and answered, and the matter was then submitted.
It appears that the administration of the estate of one Morris Hoeflich, deceased, is pending in the. court of respondent, sitting as a probate court; and that one Solomon Hoeflich is administrator of said estate. On the day of June, 1893, the said Solomon Hoeflich, as such administrator, filed in said court, in the matter of said estate, a certain writing, or petition, the contents of which are substantially these: It is therein averred that, from information derived from persons whose names said administrator is unwilling to disclose, he has ascertained that the said deceased, Morris Hoeflich, prior to and down to the time of his death, “ was either a full partner with the said H. M. Levy, or engaged with him jointly in a large number of transactions” in stocks and mines in California and Nevada, and in other property, “ the exact nature and extent of which transactions, and of the real and personal estate resulting therefrom, can be ascertained by an examination of the said H. M. Levy and other witnesses under oath, and by the production and examination of books of account, correspondence, checks, deeds, conveyances, bonds, contracts, and other writings and documents now in the exclusive possession of said H. M. Levy”; and also by examination of other named persons and documents, etc., in their possession. It is also averred that said Hoeflich, deceased, before his death represented to a number of persons, whose names the administrator is unwilling to disclose, “ that he was in partnership and had large joint interests with said H. M. Levy”; and that the fact that he made such representation “ confirms and strengthens the information otherwise received by your petitioner, and the conviction produced thereby.” It is also averred in general terms that said Levy has concealed, conveyed away, and disposed of moneys, etc., of the said deceased, and has in his possession, and [613]within his knowledge, deeds and other documents and writings “ which contain evidences of, and tend to disclose, the right, title, interest, and claim of the said decedent to real and personal property,” portions of said property being particularly described. The foregoing are, in brief, the material averments of said petition; and it was prayed therein that said Levy be cited to appear before said probate court and undergo an examination under oath as to all the matters set forth in said petition, and subject all his documents, writings, and papers to inspection and examination. A citation was issued according to the prayer of the petition to said Levy, who appeared and demurred to the petition; and, the demurrer having been overruled, he filed a lengthy written verified answer, in which he specifically denied all the material averments of said petition, and denied that he had any property in which the said decedent was interested, either as a partner or otherwise, or that he had any documents or writings of the character alleged in said petition. He also filed written objections to any further proceeding in the matter of said petition and citation; but the court overruled the objections and set a day for the examination. Whereupon the said Levy filed here the present petition for a writ of prohibition, setting up all the foregoing facts, and praying that the respondents be restrained from proceeding with said examination; and he contends that said proposed examination is beyond the jurisdiction of said court, and that certain provisions of the Code of Civil Procedure, upon which he contends the proceeding is based, are unconstitutional and void.
The proceeding sought to be prohibited, if valid at all, must rest for its validity upon sections 1459 and 1460 of the Code of Civil Procedure. Our general law of procedure is averse to proceedings which are in their character inquisitorial. The only provision in the Code of Civil Procedure in the nature of a bill of discovery other than said sections 1459 and 1460, is contained in section 1000, which provides that “any court in which [614]an action is pending, or a judge thereof, may, upon notice, order either party to give to the other, within a specified time, an inspection and copy, or permission to take a copy, of entries of accounts in any book, or of any document or paper in his possession, or under his control, containing evidence relating to the merits of the action or the defense thereto”; and the proceeding here in question is certainly not under that section. Of course, the probate court would have no jurisdiction over any action to determine conflicting rights of property between the estate of Hoefiich and the petitioner herein, H. M. Levy. Moreover, no such action is pending.
Sections 1459 and 1460, above referred to, are as follows:
“ Sec. 1459. If any executor, administrator, or other person interested in the estate of a decedent complains to the superior court or a judge thereof, on oath, that any person is suspected to have concealed, embezzled, smuggled, conveyed away, or disposed of any moneys, goods, or chattels of the decedent, or has in his possession or knowledge any deeds, conveyances, bonds, contracts, or other writings, which contain evidences of or tend to disclose the right, title, interest, or claim of the decedent to any real or personal estate, or any claim or demand, or any lost will, the said court or judge may cite such person to appear before such court, and may examine him on oath upon the matter of such complaint. If such person is not in the county where the decedent dies, or where letters have been granted, he may be cited and examined either before the superior court of the county where he is found, or before the superior court of the county where the decedent dies, or where letters have been granted. But if, in the latter case, he appears, and is found innocent, his necessary expenses must be allowed him out of the estate.”
“ Seo. 1460. If the person so cited refuses to appear and submit to an examination, or to answer such [615]interrogatories as may be put to him touching the matters of the complaint, the court may, by warrant for ihat purpose, commit him to the county jail, there to remain in close custody until he submits to the order of the court, or is discharged according to law. If, upon such examination, it appears that he has ■ concealed, embezzled, smuggled, conveyed away, or disposed of any moneys, goods, or chattels of the decedent, or that he has in his possession or knowledge any deeds, conveyances, bonds, contracts, or other writings containing evidences of or tending to disclose the right, title, interest, or claim of the decedent to any real or personal estate, claim, or demand, or any lost will of the decedent, the court may make an order requiring such person to disclose his knowledge thereof to the executor or administrator, and may commit him to the county jail, there to remain until the order is complied with, or he is discharged according to law; and all such interrogatories and answers must be in writing, signed by the party examined, and filed in the court. The order of such disclosure made upon such examination shall be prima facie evidence of the right of the executor or administrator to such property in any action brought for the recovery thereof; and any judgment recovered therein must be for double the value of the property as assessed by the court or jury, or for return of the property and damages in addition thereto, equal to the value of such property. In addition to the examination of the party witnesses may be produced and examined on either side.”
It is contended by petitioner herein that these provisions are in contravention of section 13 of article I of the state constitution, which provides that “no person shall .... be compelled in any criminal case to be a witness against himself”; and of section 19 of the same article, which provides that “ the right of the people to be secure in their persons, houses, papers, and effects, against unreasonable seizures and searches, shall not be violated.” He also contends that they contravene [616]section 11 of said article, which provides that “all laws of a general nature shall have a uniform operation”; and section 25 of article IV, which provides that no special law shall be passed “ regulating the practice of courts of justice,” for the reason that they give special privileges to administrators over other litigants. It is also contended that the probate court could not make the orders sought here to be restrained without passing upon rights of property between the estate of Hoeflich and said Levy, which it has no jurisdiction to do.
I shall not discuss any of the above positions taken by petitioner except the first two. The two provisions that a person shall not be compelled to be a witness against himself in a criminal case, and shall be secure against unreasonable seizures and searches, are so akin to each other that they are both covered by those judicial decisions and constitutional inhibitions which have established the personal rights and liberties of Englishmen and Americans. A compulsory production of a man’s private papers is, in effect, compelling him to be a witness against himself. It will be sufficient, however, in this case to particularly consider only the first of these two provisions, although the second is necessarily involved. And basing our decision on that provision, I am of the opinion that upon the principles announced and the decisions made by the supreme court of the United States in the cases of Boyd v. United States, 116 U. S. 616, Counselman v. Hitchcock, 142 U. S. 547, and Lees v. United States, 150 U. S. 476, the contention of petitioner must be sustained, and that the writ of prohibition should issue as prayed for.
If the proceeding in the probate court sought here to be restrained were, in form, a “ criminal case,” there could be no plausible contention that, in view of section 13 of article I of the state constitution, the petitioner could be compelled to he a witness against himself. But in the Boyd case it was held that the fourth and fifth amendments to the federal constitution—which are similar to said sections 13 and 19 of our state constitu[617]tion—applied to a proceeding to recover a penalty or forfeiture, although the proceeding was not criminal in form. That was a suit to forfeit Boyd’s property for an alleged violation of a revenue law, and the court held that to compel him to produce hooks and papers as evidence against him was a violation of said amendments. The court say that suits for penalties- and forfeitures “ are within the reason of criminal proceedings for all the purposes of the fourth amendment to the constitution and of that provision of the fifth amendment which declares that no person shall be compelled in any criminal case to be a witness against himself.” The court further say that “ illegitimate and unconstitutional practices get their first footing in that way, namely, by silent approaches and slight deviations from legal modes of procedure,” and that “ this can only be obviated by adhering to the rule that constitutional provisions for the security of person and property should be liberally construed. A close and literal construction deprives them of half their efficacy, and leads to gradual deprivation of the right, as if it consisted more in sound than substance.” Afterwards, the same court, in Counselman v. Hitchcock, 142 U. S. 547, expressly approved the decision in the Boyd case, and declared that in the Boyd case it was held that a statute which authorized a court to require a party to produce his private papers in court was “unconstitutional and void, as applied to a suit for a penalty or to establish a forfeiture of the goods of the party, because it was repugnant to the fourth and fifth amendments to the constitution”; and, furthermore, that “it is an ancient principle of the law of evidence that a witness shall not be compelled, in any proceeding, to make disclosures or to give testimony which will tend to criminate him or to subject him to fines, penalties, or forfeitures.” But the principle was still more directly decided in the late case of Lees v. United States, 150 U. S. 476. That was a civil action brought by the United States to recover a penalty of one thousand [618]dollars for the violation of an act of Congress prohibiting the importation of aliens under contracts for labor. The circuit court compelled Lees, one of the defendants, to become a witness for the government against his objection that the suit was in the nature of a criminal proceeding, and that he could not be compelled to testify; and, on a writ of error to the United States supreme court, the judgment was reversed. The supreme court, by Mr. Justice Brewer, said: “ This, though an action in civil form, is unquestionably criminal in its nature; and in such a case a defendant cannot be compelled to be a witness against himself. It is unnecessary to do more than to refer to the case of Boyd v. United States, 116 U. S. 616. The question was fully and elaborately considered in that case; and within the rule there laid down it was error to compel this defendant to give testimony in behalf of the government.”
It is quite clear that said sections 1459 and 1460 include a “ penalty” within the meaning of the authorities above noticed. Indeed, the whole scope of the proceeding which it is their purpose to authorize is, in its nature, quasi criminal. It is founded upon the fact that the party to be examined “is suspected” of being guilty either of the embezzlement or smuggling, or of the fraudulent concealment and secret and unlawful disposition of property of another. Certain things are to be done if he “ is found innocent.” But, if the contrary is found, then an order for disclosure is to be made, which he must obey or be sent to jail. And then it is provided that such order for disclosure shall be prima facie evidence of the right of the administrator to the property involved in any action brought for the recovery of such property ; and that “ any judgment recovered therein must be for double the value of the property as assessed by the court or jury, or for return of the property and damages in addition thereto equal to the value of such property.” It is thus sought to compel the party examined to testify and to produce his private papers for the purpose of furnishing evidence [619]upon which may be based an order that will make a prima facie case against him in an action for a penalty which may be of the most grave character. If he be defeated in such action, although he may have defended it with the utmost good faith, and under an honest claim of right, the judgment against Mm will not be, as in ordinary civil actions, for the value of the property or its return with the usual incidental damages, but, in addition to that, the judgment “must be” for a second full value of the property as a penalty, and cases might easily arise where the amount of such penalty would greatly exceed the highest fine provided as punishment for a crime by any section of the Penal Code. I am satisfied, therefore, that the said sections of the code are within the inhibition of the constitutional provision of said section 13 of the constitution of the state. And under the rule, and the authorities above cited, a person in the position of the petitioner cannot be compelled to give testimony or produce papers which would tend to make a case against him, or furnish data or links of evidence favorable to such case. I have just noticed the recent case of United States v. James, 60 Fed. Rep. 257, in which Judge Grosscup of the United States district court, North District, Illinois, in a very interesting opinion discusses the subject here under review at great length. In that case the learned judge holds that a person cannot be compelled to testify or produce documents that may tend to criminate him, although there be a statute providing that he shall not be prosecuted or punished for the matter about which his testimony is sought. He holds that the purpose of the fourth and fifth amendments was not confined to the protection of a witness against “ law-inflicted pains and penalties only,” but that the purpose was “ to make the secrets of memory, so far as they brought one’s former acts within the definitions of crime, inviolate as against judicial probe or disclosure”; and that “the privilege of silence./ against a criminal accusation, guaranteed by the fiy amendment, was meant to extend to all the coy
If the administrator of the estate of Hoeflich, deceased, believes, from information which he has, that said estate has a just cause of action against the petitioner herein, he has the privilege of bringing an action against said petitioner in the proper court; and when said action is pending he may avail himself, like other litigants, of the provisions of section 1000 of the Code of Civil Procedure to have an inspection of such books} documents, and papers in the possession of said petitioner as the court may deem proper, and may also examine said petitioner as a witness in the case.
I think that a peremptory writ of prohibition should issue as prayed for in the petition.
De Haven, J., concurred.