In case No. 171904, the only connection of C. S. Brooks with the offense is the admission that at the time the offense was committed he was president of the corporation owning the Island Queen, and was actually engaged in the operation of the boat. This admission goes no further than the admission contained in the record of the case of Cincinnati v. Burkhardt, 10 C. C. (N.S.), 495, the pertinent part of which has already been quoted, and the court concluded that the president of the corporation was not liable.

The authority of that case is binding upon this court, and in accordance therewith, the court holds that the defendant Brooks in case No. 171904, was improperly convicted and said conviction is therefore reversed.

In case No. 171903, it was admitted that the defendant Dickow was the chief engineer and actually engaged in the operation of the Island Queen, and in addition thereto, that he was working as chief engineer on the Island Queen at the time the offense was committed and while it was moored at the foot of Broadway. The defendant Dickow being chief engineer and being personally present at the time and place the offense was committed, is evidence that he participated in the creation of the nuisance, and knowing of its existence and having power to abate it, allowed it to continue.

The judgment of the municipal court is affirmed in this case, Ne. 171903.

In case No. 172794, the defendant Brooks was shown to have been the president of the corporation owing the Island Queen, actively participating in the management of its business, and in addition thereto, had several times prior to the date laid in the affidavit, been notified on various occasions that the Island Queen was being so operated as to cause a smoke nuisance, in violation of the municipal ordinance, and warned to take the proper precautions to prevent or abate the nuisance. The record also shows that the nuisance was continued intermittently for some months and that the defendant took no effective means either by installation of new appliances or by prohibitory commands to the employees so as to prevent a recurrence of the

nuisance, and the court therefore holds that under the law, the record discloses evidence against the defendant Brooks in that case, that knowing of the existence of the nuisance and having power to prevent its recurrence he refrained from doing so, and therefore, the judgment of the municipal court in case No. 173794, finding him guilty of a violation of this ordinance should be affirmed.

ILLEGAL COMMITMENT BY A NOTARY FOR CONTEMPT.
Probate Court of Montgomery County.

STATE, EX REL CARL FOWLER, V. WILLIAM C. OLDT.

Decided, April 5, 1920.

Depositions-Refusal of Witness to Answer Questions Propounded by a Notary Not Necessarily Contempt-Power of Notary to Commit for Refusal Limited to Refusal to Answer Proper Questions or Produce Papers Competent as Evidence-Examinations under Section 11497.

A plaintiff, summoned to give his deposition in an action for damages for alienation of affections, is unlawfully committed for contempt in refusing to answer as to the source of information upon which he has based his suit.

ROUTZOHN, J.

This is an action in habeas corpus brought on relation of Carl Fowler against William C. Oldt, as Sheriff of Montgomery county, Ohio, seeking the release of said Fowler from the Montgomery county jail, to which place he was committed by S. N. Froehle, a notary public in and for said county, for contempt in refusing to answer a certain question propounded to him and for refusing to re-appear before said notary, when commanded so to do as alleged and more specifically set forth in the commitment.

A brief statement of the facts, sufficient for the present consideration of the cause, is as follows:

On the 25th day of March, A. D. 1920, relator by subpoena was caused to appear in the office of Egan & Delscamp, 803-4-5-6 Schwind Building, Dayton, Ohio, to testify, in a deposition sought to be obtained for use, as alleged, in a cause pending in the common pleas court of Montgomery county, wherein Carl Fowler is plaintiff and J. A. Guncheon is defendant and in which cause Fowler is asking for an award of damages. against Guncheon because of the alleged alienation of the affections by Guncheon of Fowler's wife.

The notary before whom Fowler was subpoened to appear being absent at the time said deposition was to be taken, by agreement of counsel the notary, S. N. Froehle, was substituted, relator was sworn and the proceeding commenced.

The record of the proceeding, as set forth in the commitment, is as follows:

Examination by Mr. Delscamp:

Q. You filed the petition against James A. Guncheon for alienation of affections in the court of common pleas, of Montgomery county, Ohio, on the 20th day of March, 1920, didn't you?

A. Yes, sir.

Q. In that petition you alleged that James A. Guncheon had induced your wife, Beatrice Fowler, to accompany or to meet him in Cincinnati, Ohio; is that right?

A. Yes, sir.

Q. Where did you get the information from? (Objected to.) Mr. Delscamp: All right I ask that he be committed to jail. The question to which objection was made was then read to the witness.

The Notary: You heard the question read there, do you refuse to answer?

If

Mr. Holland: Yes, we refuse an answer that question. you want Mr. Fowler-If you want to send the sheriff over there you will find him in my office.

Mr. Delscamp: We are not through with the deposition yet, we are not through with the testimony of Mr. Fowler yet on cross-examination.

Mr. Holland: Well, go ahead with your deposition.
Thereupon the witness and his counsel left the office.

The testimony reveals that after the objection was made, a heated argument ensued between George F. Holland, attorney for Fowler and Irvin C. Delscamp, attorney for Gucheon, anent the competency of the question; that Mr. Delscamp asked no further questions, although requested by Mr. Holland to proceed, but insisted upon an answer to the question propounded; that instead of proceeding to question the witness further, Mr. Delscamp began to examine law books, presumably for the purpose of finding some law bearing upon the competency of the question, or of determining what method should be pursued in committing Fowler to jail.

After thus waiting about five minutes, according to the testimony of the notary, Mr. Holland and relator left, as above noted. The notary made no attempt to stop them from leaving, nor did he caution them not to do so.

This was about 2.30 p. m. About one hour thereafter the notary phoned Mr. Holland, who, with relator, was at his office, and asked if relator would return to answer the question, but met with a refusal.

Between five and five-thirty p. m., the notary again phoned Mr. Holland and demanded Fowler to return and answer the question, with the same result; whereupon the commitment was issued and Fowler was incarcerated in the jail.

Was Fowler guilty of contempt by reason of his refusal to answer the propounded question?

The notary, in this instance, was acting within his rights, by virtue of his office and the agreement herin before mentioned, in the taking of the deposition; at least, no claim is made to the contrary.

In granting authority for the enforcement of those rights, Section 11510 of the General Code provides:

"Disobedience of a subpoena, a refusal to be sworn, except upon a failure to pay fees duly demanded, and an unlawful refusal to answer as a witness or to subscribe a deposition, may be punished as a contempt of the court or officer by whom the attendance or testimony of the witness is required."

The court in quoting this statute has emphasized the words. "an unlawful refusal."

It is well known that the officer who takes a deposition has no authority to pass upon the relevancy or competency of a propounded question; this must be left of the court before. whom the cause is to be tried.

The language of the section quoted implies that it may not be unlawful for a witness to refuse to answer certain questions. In accordance with this implication, or rather qualification of the officer's authority to punish a witness for refusing to answer, the Supreme Court of Ohio has held:

"A witness whose deposition is being taken before an officer cer may refuse to testify to facts not relevant to the issues in the case in which the deposition is to be read, if the disclosure of such irrelevant facts would be injurious to the business of the witness; and, imprisoned by the officer for such a refusal, he may be discharged on habeas corpus. Ex Parte Malcolm Jennings, 60 Ohio State, 319.

In this case the prisoner was discharged, having been committed to jail for refusing to answer certain questions which the Supreme Court found to be irrelevant.

In the opinion, page 329, Shauck, J., states "the settled law on the subject" by quoting from Church on habeas corpus, section 319:

"The law has not investigated such officers (notaries public) with arbitrary and omnipotent power to compel a witness to answer all questions however incompetent, irrelevant, immaterial or inadmissible. A refusal to answer such questions is not necessarily a contempt. To have power to commit for contempt, the notary must exercise his functions substantially in the manner and under the circumstances prescribed and contemplated by law. It has, therefore, been held that a witness will be discharged on habeas corpus where he has been committed for contempt by a notary public for failure or refusal to produce papers and testimony that are incompetent and inadmissible.

The court has carefully and conscientiously examined numerous authorities, including those cited by counsel on both sides, and they all substantiate the above quoted rule of law.

Having in mind the issues involved in the case of Fowler against Guncheon, the cause for which this deposition was