Levy v. Superior Court of San Francisco

38 P. 965, 105 Cal. 600, 1895 Cal. LEXIS 690

• Court: California Supreme Court
• Decided: January 6, 1895
• Docket: No. 15577
• Status: Published

Opinions

Van Fleet, J.

Morris Hoeflich died at the city and county of San Francisco in May, 1891, and Solomon Hoeflich was, by the superior court of said city and county, appointed administrator of his estate.

Thereafter, on the day of June, 1893, the administrator filed in said superior court a petition in the matter of said estate, averring, in substance, that it had come to his knowledge that said deceased was, at and prior to his death, a partner with one H. M. Levy, or engaged with said Levy 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 the examination of other named persons and documents, etc., in their possession,

The petition further averred that said Levy has concealed, conveyed away, and disposed of moneys and property of said deceased, and has in his possession and within his knowledge, deeds and other documents and writings, “ which contain evidences of and tend to disclose the right, title, interest, and claim of said deceased to real and personal property”—portions of such property being particularly described. The prayer was that said Levy be cited to appear before said court and undergo an examination under oath, together with such witnesses as might be then produced, touching all the matters set forth in the petition, “ and especially touching his possession and knowledge of any and all deeds, conveyances, bonds, contracts, or other writings, which contain evidences of or tend to disclose the right, title, and interest or claim of the decedent, Morris Hoeflich, to any real or personal estate, or any claim or demand, whatsoever”; and that said Levy be required to produce all said deeds, conveyances, and other writings, books of account, etc., for inspection and examination.

It response to a citation issued upon said petition said Levy appeared and demurred, which demurrer being overruled, he filed a verified answer specifically denying all the material averments of the petition; denied that he had any property in which the deceased was interested as a partner or otherwise, or that he had any documents or writings relating to any such property. He also filed written objections to any further proceedings in the matter of said examination; but the demurrer and the objections were overruled and a day was set by the court for the examination.

Thereupon said Levy filed his petition here setting up these facts, upon which he makes this application for a writ of prohibition directed to said court and the Hon. J. V. Coffey, judge thereof, commanding said respondents to refrain and desist from further proceeding with said contemplated examination.

An alternative writ was issued, in response to which respondents have demurred and answered, and the matter has since been argued and submitted.

The proceedings in the superior court which are called into question by this application for prohibition were admittedly taken under and in pursuance of sections 1459 and 1460 of the Code of Civil Procedure, and these sections are as follows:

“ Sec. 1459. If an 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.”

“ Sec. 1460. If the person so cited refuses to appear and submit to an examination, or to answer such interrogatories as may be put to him touching the matters of the complaint, the court may, by warrant for that 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 for 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.”

Petitioner contends that these provisions of the code are unconstitutional and void, and that the proceeding in the superior court is, therefore, without warrant of law. His position is that they are obnoxious to several features of the constitution of the state, and more particularly to section 3 of article I, which provides that “ no person shall .... be compelled in any criminal case to be a witness against himself”; and to 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.”

These two provisions of the constitution are of well-understood significance; they involve like principles, and, in considering the objection made, may be regarded as one.

The argument of petitioner is that the sections of the code referred to are distinctly penal in character, and contemplate a proceeding which is in its essential nature criminal, within the meaning of the above provisions of the constitution; that being a criminal proceeding, petitioner is protected by the constitution from being compelled to testify against himself or submit his books and papers in evidence.

There is no question that if petitioner’s premises are correct his conclusion follows necessarily. But his construction of the provisions in question cannot be sustained. These provisions have received a construction at the hands of this court directly at variance with that put upon them by petitioner. Sections 1458 to 1461 of the Code of Civil Procedure were, prior to the adoption. of the codes, a part of the old Probate Act, as sections 116 to 119; they are a part of the same article, and relate to the same subject, which is expressed in the title, as “ Embezzlement and surrender of property of the estate.” In the case of Jahns v. Nolting, 29 Cal. 507, this court had • occasion to construe section 116 of the Probate Act (now section 1458 of the Code of Civil Procedure) upon the very feature now involved. That was an action by an administrator to recover property belonging to the estate of his decedent, which he alleged had been embezzled by defendant and converted to his own use. The lower court held that the action was brought under section 116 of the Probate Act, which alone gave plaintiff a remedy for the wrong; that the statute was penal in its nature, and that the plaintiff was bound to prove the embezzlement as alleged, or fail in his action. Judgment having gone against him, the plaintiff appealed, and, in disposing of that question, the court said:

“ The position that section 116 affords the exclusive remedy for embezzling and alienating the effects of the deceased, intermediate the death of the deceased and the grant of administration, cannot be maintained, unless that section can be held to be a penal, statute .... The distinctions between penal and remedial statutes are not always clearly marked, nor are the authorities quite harmonious where statutes very similar in their purpose and general terms have been under review. A penal statute is one that imposes a penalty or creates a forfeiture as the punishment for the neglect of some duty or the commission of some wrong that concerns the good of the public, and is commanded or prohibited by law. The law generally first prescribes what shall or shall not be done, and then declares the penalty. Its primary object is punishment, and to deter others from offending in like manner, though it may give the penalty, or some portion of it, to the person who may prosecute the action. (Reed v. Northfield, 13 Pick. 94; 23 Am. Dec. 662; Suffolk Bank v. Worcester Bank, 5 Pick. 106; Frohock v. Pattee, 38 Me. 103; Bayard v. Smith, 17 Wend. 88; Sedgwick on Statutory and Constitutional Law, 390.”) And it was held that the section was not penal, but purely remedial.

Sections 1459 and 1460 are strictly within the principles of construction announced in that case. They are no more penal in their essential features than is section 1458. It is true that, as urged by petitioner, they provide for pains and penalties in the way of imprisonment and damages under certain contingencies; but the essential distinction between these provisions and a penal statute is that the penalty is not imposed as a punishment for a public wrong, but as redress for a private grievance. And it is not unusual to find provisions of a similar character in statutes purely remedial.

Both before and since Jahns v. Nolting, supra, these sections have several times been under consideration by the court. In Beckman v. McKay, 14 Cal. 250, the court considered the action, which was brought under section 116 of the Probate Act, as in the nature of an action of trover and conversion; and in Mesmer v. Jenkins, 61 Cal. 151, it is said: “ That under a statute very similar, if not precisely like, sections 1458 to 1461 of the Code of Civil Procedure the power of a judge of probate, in respect of matters of this kind, is analogous in its extent and object to the power exercised by courts of chancery upon bills of discovery.”

Petitioner relies largely in support of his position upon Boyd v. United States, 116 U. S. 616, and Counselman v. Hitchcock, 142 U. S., 547. But we think those cases entirely distinguishable in principle from, and not at all in conflict with, the views expressed in Jahns v. Nolting. There are, it is true, some general expressions and language in those cases which, read without reference to the particular facts of those cases, might be construed as supporting the petitioner's position. But, when considered in the light of what was before the court and the premises from which they were reasoning, any seeming conflict fades away. In the case of Boyd v. United States, 116 U. S. 616, a statute declared that any person who, with intent to defraud the revenue of the United States, should commit or omit certain acts, should for such offense be fined in any sum not exceeding five thousand dollars, nor less than fifty dollars, or be imprisoned for any time not exceeding two years, or both; and in addition should forfeit the merchandise in respect to which the wrongful acts were performed. Under this statute an information was filed against certain goods charging an offense under the act, and asking the forfeiture of the goods. In the course of the proceeding, Boyd having appeared as a claimant of the property and denied any act of forfeiture, and it being important to the government to show the quantity and value of the goods, a motion was made by the United States district attorney for an order directing the claimant to bring into court a certain invoice alleged to be in his possession and to contain proof of the truth of the allegations of fraud made by the United States. Such order was made, and, in obedience to it, the claimants produced the invoice, which was used as evidence against them on the trial.

Speaking of the character of the proceeding, it was said by the court (page 684): “In this very case the ground of forfeiture, as declared in the twelfth section of the act of 1874 on which the information is based, consists of certain acts of fraud committed against the public revenue in relation to imported merchandise, which are made criminal by the statute, and it is declared that the offender shall be fined not exceeding five thousand dollars nor less than fifty dollars, or be imprisoned not exceeding two years, or both; and, in addition to such fine, such merchandise shall be forfeited. These are the penalties affixed to the criminal acts, the forfeiture sought by this suit being one of them. If an indictment had been presented against the claimants upon conviction the forfeiture of the goods could have been included in the judgment. If the government prosecutor elects to waive an indictment and to file a civil information against the claimants—that is, civil in form—can he, by this decree, take from the proceeding its criminal aspect and deprive the claimants of their immunities as citizens, and extort from them a production of their private papers, or, as an alternative, a confession of guilt? This cannot be. The information, though technically a civil proceeding, is, in substance and effect, a criminal one. . . . . As, therefore, suits for penalties and forfeitures incurred by the commission of offenses against the law are of this quasi criminal nature, we think they are within the reason of criminal proceedings for all the purposes of the fourth amendment of the constitution, and of that portion of the fifth amendment which declares that no person shall be compelled in any criminal case to be a witness against himself.”

The difference in character between the proceeding under discussion there and the proceeding complained of here by petitioner was, however, recognized in the same opinion in the following language (page 624): “The entry upon premises, made by a sheriff or other officer of the law for the purpose of seizing goods and chattels by virtue of a judicial writ, such as an attachment, a sequestration, or an execution, is not within the prohibition of the fourth or fifth amendment or any other clause of the constitution; nor is the examination of a defendant under oath, after an ineffectual execution for the purpose of discovering secreted property or credits to be applied to the payment of a judgment against him, obnoxious to those amendments. But when examined with care it is manifest that there is a total unlikeness of these official acts and proceedings to that which is now under consideration. In the case of stolen goods the owner from whom they were stolen is entitled to their possession, and, in the case of excisable or dutiable articles, the government has an interest in them for the payment of the duties thereon, and until such duties are paid has a right to keep them under observation or to pursue and drag them from concealment; and in the case of goods seized on attachment or execution the creditor is entitled to their seizure in satisfaction of his debt; and the examination of a defendant under oath to obtain a discovery of concealed property or credits is a proceeding merely civil to effect the ends of justice, and is no more than what the court of chancery would direct on a bill for discovery.”

In the Counselman case, which was a case growing out of the refusal of Counselman to testify before a grand jury upon an investigation of alleged violations of “An act to regulate commerce,” on the ground that his answers might tend to criminate him, the court held it was within the principles announced in the Boyd case, and reaffirmed those principles. The case of Lees v. United States, 150 U. S. 476, is another case falling strictly within the principles of Boyd v. United States, 116 U. S. 616.

These considerations dispose of the main objection of petitioner. The other objections to the constitutionality of the statute are, in our judgment, without merit.

Nor is the objection tenable that the proceeding in the probate court involves passing upon the title to property, and is on that ground without the court’s jurisdiction. (Ex parte Casey, 71 Cal. 269; Matter of Curry, 25 Hun, 320.)

Writ denied.

Fitzgerald, J., Harrison, J., Garoutte, J., and Beatty, C. J., concurred.