The decision therefore is rested upon the first proposition. Judgment affirmed.20

MINSHALL, J., dissents.

PEOPLE ex rel. MCALEER v. FRENCH et al.

(Court of Appeals of New York, 1890. 119 N. Y. 502, 23 N. E. 1061.)

Appeal from Supreme Court, General Term, First Department. The police commissioners of New York city dismissed the relator from the police force for intoxication. On certiorari that order was affirmed by the Supreme Court, General Term, and relator appeals.

EARL, J.21 The members of the police force of the city of New York have a permanent tenure of office; and they cannot be dismissed from the force, for any fault or misconduct, until after charges have been preferred against them, and such charges have been examined, heard, and investigated as provided in the statutes, and the rules adopted by the board of police commissioners. The following is one of the rules adopted by that board: "Any member of the police force may be punished by the board of police, in their discretion, either by reprimand, forfeiture, and withholding pay, not exceeding thirty days for any one offense, or by dismissal from the force on conviction of either of the following offenses, to wit." Among the offenses specified are intoxication, neglect of duty, and conduct unbecoming an officer. We are dealing in this case with the offense of intoxication, as that was the charge made against the relator. ** Taking the case as it appears to us, it was certainly a very severe punishment to dismiss the relator from the police force, where he had so long and faithfully served. But the extent of the punishment rested entirely in the discretion of the commissioners, and neither the Supreme Court nor this court has any jurisdiction to interfere therewith.

*

We think the force and effect of the decision in the Masterson Case 22 has been somewhat misapprehended. In determining the guilt of a police officer who is on trial for charges preferred against him, the police commissioners cannot act upon their own knowledge. The charges must be tried upon evidence, and the guilt must be established by evidence produced before the commissioners upon the

20 "The law contemplates that the members of the board will act upon proof of some sort appropriate to the case and made a matter of record; not necessarily that they will in all cases act regardless of personal investigation, but that in case of reliance thereon the result of the investigation will be made matter of record." State ex rel. Medical College v. Chittenden, 127 Wis. 468, 517, 107 N. W. 500 (1906).

21 Only a portion of the opinion of Earl, J., is printed.

22 People ex rel. Masterson v. French, 110 N. Y. 494, 18 N. E. 133 (1888). See, also, People v. Glennon, 37 Misc. Rep. 1, 74 N. Y. Supp. 794 (1902).

trial. They can neither act upon their own knowledge, nor supplement the evidence by their own knowledge. But, in inflicting the punishment, they may take into consideration the evidence, as well as their own knowledge of the police officer, and inflict such punishment, authorized by the rules and the statutes, as, in their judgment, the case, in view of all the circumstances, requires. We did not determine in that case that the Supreme Court, upon certiorari, did not have jurisdiction to review the determination of the police commissioners upon the evidence; and it is a mistake to suppose that, if there is any evidence in the record brought to the Supreme Court by certiorari sustaining the determination of the commissioners, that court has no right to interfere therewith. Such is the rule in this court, and such was the rule at common law.

But now, by section 2140 of the Code of Civil Procedure, upon the hearing on the return of a writ of certiorari the Supreme Court may inquire whether there was any competent proof of all the facts necessary to prove in order to authorize the making of the determination, and, if there was such proof, whether there was, "upon all the evidence, such a preponderance of proof against the existence of any of those facts that the verdict of a jury affirming the existence thereof, rendered in an action in the Supreme Court triable by a jury, would be set aside by the court as against the weight of evidence." Therefore, in all this class of cases, it is the duty of the Supreme Court, not only to inquire whether there is any competent proof tending to establish the guilt of the accused officer, but it must look into the evidence; and, if it finds that there is a preponderance of evidence against the determination of the commissioners, then it has the same jurisdiction to reverse the determination that it has to set aside the verdict of a jury as against the weight of evidence. It is the purpose of the law to give a review in the Supreme Court by certiorari, not only upon the law, but upon the evidence, to the extent specified in the statute; and every party who seeks such a review is entitled to the fair and judicious exercise of that jurisdiction. We do not perceive that the relator's right to call witnesses, and have them sworn in his behalf, upon his trial, was denied or curtailed by the police commissioner who took the evidence. We are therefore constrained to affirm the order; but, under the circumstances, it must be without costs.

SECTION 28.-POWER TO OBTAIN INFORMATION 28

LANGENBERG v. DECKER.

(Supreme Court of Indiana, 1892. 131 Ind. 471, 31 N. E. 190, 16 L. R. A. 108.)

Appeal from superior court, Marion county.

Proceedings in habeas corpus by Philip Decker against Henry W. Langenberg, Sheriff of Marion County. From a judgment discharging plaintiff from custody defendant appeals. Affirmed.

*

COFFEY, J. The General Assembly of the state passed an act, which was approved and went into force on the 6th day of March, 1891, entitled "An act concerning taxation, repealing all laws in conflict herewith, and declaring an emergency." The, act creates a state board of tax commissioners, composed of five persons, viz., the Secretary of State, the Auditor of State, and the Governor of the state, who are styled ex officio members, and two persons of opposite political faith, appointed by the Governor of the state. * * It also contains this provision: "They shall have the power to send for persons, books, and papers, to examine records, hear and question witnesses, to punish for contempt any one who refuses to appear and answer questions by fine not exceeding one thousand dollars, and by imprisonment in the county jail of any county not exceeding thirty days, or both. Appeals shall lie to the criminal court of Marion county from all orders of the board inflicting such punishment, which ap

23 The power to require an oath (to be administered by some official authorized to administer oaths) may be implied from usage. United States v. Bailey, 9 Pet. 238, 9 L. Ed. 113 (1835). See. also, Caha v. United States, 152 U. S. 211, 14 Sup. Ct. 513, 38 L. Ed. 415 (1894). Power to require production of papers, etc. Boyd v. United States, 116 U. S. 616, 6 Sup. Ct. 524, 29 L. Ed. 746 (1886); State v. Davis, 108 Mo. 666, 18 S. W. 894, 32 Am. St. Rep. 640 (1892); St. Joseph v. Levin, 128 Mo. 558, 31 S. W. 101, 49 Am. St. Rep. 577 (1895).

As to powers of inquisition, see Commissioners of Enquiry, 12 Coke, 31; article on the Corporation Commission, 11 Law Magazine 68; University Commission, 15 Law Magazine (N. S.) 79.

Power to require information or reports, tending to incriminate. Com. v. Emery, 107 Mass. 172, 9 Am. Rep. 22 (1871); Counselman v. Hitchcock, 142 U. S. 547, 12 Sup. Ct. 195, 35 L. Ed. 1110 (1892); Brown v. Walker, 161 U. S. 591, 16 Sup. Ct. 644, 40 L. Ed. 819 (1896); People ex rel. Lewisohn v. O'Brien, 176 N. Y. 253, 68 N. E. 353 (1903), overruling People v. Kelly, 24 N. Y. 74 (1861); People v. Butler Street Foundry Co., 201 Ill. 236, 66 N. E. 349 (1903); Hale v. Henkel, 201 U. S. 43, 26 Sup. Ct. 370, 50 L. Ed. 652 (1906). For general administrative power to obtain information (not to be found in English or American law), see General Administrative Act of Prussia of July 30, 1883, § 119: "The administrative authorities have power, even in other cases than those expressly designated by law, to summon parties in interest or their authorized representatives to an oral hearing for the purpose of ascertaining facts."

24 Only a portion of the opinion by Coffey, J., is printed.

peals shall be governed by the laws providing for appeals in criminal cases from justices of the peace, so far as applicable. The sheriffs of the several counties of the state shall serve all process and execute all orders of the board."

Claiming to act under the power and authority conferred upon it by the provisions of the statute, the state board of tax commissioners, on its own motion, caused a subpoena duces tecum to be issued to all the banks in the state, requiring the president, cashier, and bookkeeper, or either of them, of the bank named in the subpoena, to appear before the board at the office of the state board of tax commissioners in the state house in the city of Indianapolis, on a day named in the subpoena, and to bring and have with them then and there such books, papers, and accounts of such banking institution as should fully disclose and show the names of all persons having money, bonds, stocks, notes, or other property of value on deposit and in the custody of such bank on the 1st day of April, 1891, and the respective amounts of such deposits or other property in the custody of the bank, and to answer all questions which might be asked in relation thereto or with reference to the property owned by the bank itself. * * *

One of the subpoenas was served upon the appellee at the city of Evansville, where he resides, and where he is vice president of a state bank known as the German Bank of Evansville. In answer to the subpoena he appeared before the state board of tax commissioners on the 25th day of August, 1891, when there were present of the members of the board the following persons, and others, viz., Claude Matthews, Secretary of State, acting as president of the board, J. O. Henderson, Auditor of State, and Ivan N. Walker.

Upon his appearance he was duly sworn, when the following proceedings were had, viz.: "Question. State your name and place of residence. Answer. Philip C. Decker. I reside in the city of Evansville. Q. In what business are you engaged? A. That of banking. Q. With what institution are you engaged, and in what capacity? A. I am vice president of the German Bank of Evansville, Indiana. The president lately died, and I am acting as president. Our bank was organized under the laws of Indiana. Q. State the aggregate amount of the individual deposits held by the German Bank, of which you are vice president, on the 1st day of April, 1891. A. About $300,000. Q. Give the amount of money held on deposit by said bank on the 1st day of April, 1891, belonging to some one depositor. The Witness: Before answering the question, I respectfully ask the board whether there is any appeal, complaint, suit, or proceeding of any kind pending before this board or elsewhere to assess any depositor, or to revise his tax list in any manner. By the Board: No. We are exercising the power of discovery. The Witness: I decline to answer, under the advice of counsel, either as to the name of any depositor or the amount of his deposit. * * * "25

25 A number of similar questions and answers followed, which are omitted.

Thereupon the state board of tax commissioners, because of the refusal of the appellee to appear and answer the questions above set forth, and to give the information thereby sought to be elicited, assessed against him a fine of $500, and that he stand committed until the fine be paid or replevied, and entered the following judgment: "Therefore it is considered and ordered by the state board of tax commissioners that Philip C. Decker, on account of his refusal to appear and answer questions, and his disobedience to the order of this board, be, and hereby is, fined in the sum of five hundred dollars ($500); and it is further considered by the board that said Philip C. Decker do stand committed to the jail of Marion county, Indiana, until said fine be paid or replevied."

Upon entering the foregoing judgment, the secretary of the board delivered to the appellant, as the sheriff of Marion county, a commitment reciting the fact that the appellee had been fined the sum of $500 for contempt, and ordering that he be committed to the jail of Marion county until discharged by due process of law. Upon this commitment the appellee was arrested. He thereupon filed his petition in the Marion superior court, praying for a writ of habeas corpus. To the writ issued upon this petition the appellant made his return, stating, among other things, substantially the proceedings above set forth. To this return the appellee filed exceptions, which were sustained by the court, and an order was entered discharging the appellee from custody.

The assignment of error calls in question the propriety of the ruling of the Marion superior court in sustaining the exceptions to the return made by the appellant to the writ of habeas corpus. It is contended by the appellee: First. That the power to punish for contempt is a judicial function, which can only be exercised by a court, and, if it be claimed that the act in question makes the state board of tax commissioners a court, then so much of the act as seeks to do so is void, because it is not embraced in the title of the act, and because three of the persons constituting the board are forbidden by the constitution of the state from exercising judicial functions. Second. That, if the board has power to punish for contempt, it can only do so for the refusal of a witness to appear and answer questions pertinent and material to some issue in a suit, action, or proceeding then pending. Third. That the proceedings of the board in this matter are in violation of the provisions of the Constitution of the United States, which provides that "the right of the people to be secure in their persons, houses, papers, and effects against unreasonable searches and seizures shall not be violated, and no warrant shall issue but upon reasonable cause, supported by oath or affirmation, and particularly describing the place to be searched, and the person or thing to be seized." Fourth. That the state board of tax commissioners has no original jurisdiction, except in the matter of the assessment of railway corporations, and equalizing the assessments of real estate.