the land only by a competent judicial tribunal which has jurisdiction in the premises.- People ex rel. MacDonald v. Leubischer, 34 App. Div. (N. Y.) 577, 54 N. Y. Supp. 869.

Judicial power, such as to punish for contempt, cannot be delegated to a commission.- Langenberg v. Decker, 131 Ind. 471, 31 N. E. 190, 16 L. R. A. 108.

To try a question of contempt and to adjudge punishment is an exercise of judicial power. There is no such thing as a punishable contempt of executive authority. While an executive officer might be constituted a court, judicial power cannot be conferred on him as merely ancillary to the exercise of purely executive power. Not every one who hears testimony and exercises discretion and judgment in a matter submitted to him is necessarily a judicial officer.- (Opinion of Johnston, J., who did not concur in result.)—In re Huron, 58 Kan. 152, 48 Pac. 574, 36 L. R. A. 8221.

A notary public may be authorized to punish for contempt.- Dogge v. State, 21 Neb. 272, 31 N. W. 929.

To punish by a commitment for contempt is a power belonging only to judges of certain courts, and does not arise from the mere exercise of judicial functions.- Matter of Kerrigan, 33 N. J. L. 344.

It is not within the power of a commissioner of a federal court to punish for contempt.- Ex parte Doll, 7 Phila. (Pa.) 595.

[9] When a witness is in contempt.

Whether an officer of a corporation can personally be punished for con

tempt for failure to produce books and papers,— see ante, note [6]. In a proceeding in the Circuit Court upon a petition of the Interstate Commerce Commission under Interst. Com. Act, § 12, it is open to the defendant to contend that he was protected by the U. S. Constitution from making answer to the questions propounded, or that he was not bound to produce the books, papers, etc.; that neither the questions propounded nor the papers asked for related to the particular matter under investigation, nor to any matter which the Commission was entitled under the Constitution or laws to investigate. The issue is not one for the determination of a jury, nor is there any contempt until the issue of law is determined adversely to the defendant, and he has refused to obey, not the order of the Commission, but the final order of the court.- Interst. Com. Commission v. Brimson, 154 U. S. 447, 14 Sup. Ct. R. 1125, revg. s. c. sub. nom. In re Interst. Com. Commission, 53 Fed. 476.

Notwithstanding the vesting of judicial powers in the courts, certain powers, in their nature judicial, belong to the legislature and may be delegated by it to a committee authorized to take testimony and summon witnesses, and a refusal to appear and testify before such committee, or to produce books, is a contempt.- People v. Sharp, 107 N. Y. 427, 14 N. E. 319.

[10] Due process required in punishing for contempt.

It is not necessary to due process of law that proceedings in a state court shall be by a particular mode, but only that there shall be a regular course of proceeding in which notice is given, of the claim asserted and an opportunity offered to defend against it.- New Orleans Waterworks Co., v. Louisiana, 185 U. S. 336, 22 Sup. Ct. R. (U. S.) 691.

The essential elements of due process are notice and an opportunity to defend. Simon v. Craft, 182 U. S. 427, 21 Sup. Ct. R. (U. S.) 836. New York Code of Civil Procedure, § S56, authorizing any judge, on proof by affidavit that a person subpoenaed and attending refuses without reasonable cause to answer on such examination legal and pertinent questions, to by warrant commit the offender to jail, is unconstitutional, since it does not require due notice to the witness nor an opportunity for him to be heard, nor does the fact that due notice and hearing are accorded validate a particular proceeding under the statute. The essential validity of the law is to be tested, not by what has been done under it, but by what might by its authority be done.- Matter of Grout, 105 App. Div. (N. Y.) 98, 93 N. Y. Supp. 711.

Quaere, is a court of first instance at liberty to punish for a contempt of its order, however gross, if that order is appealed from?- New York Mail & N. Trans. Co. v. Shea, 23 Misc. (N. Y.) 15, 49 N. Y. Supp. 951.

[11] Review of contempt orders.

An order made in a proceeding to punish for a criminal contempt in refusing to testify is reviewable by certiorari.- People ex rel. Taylor v. Forbes, 143 N. Y. 219; People ex rel. Munsell v. Court of Oyer and Terminer, 101 N. Y. 245, 4 N. E. 259; People ex rel. Negus v. Dwyer, 90 N. Y. 402; People ex rel. Choate v. Barrett, 56 Hun (N. Y.), 351, 9 N. Y. Supp. 321, affg. 121 N. Y. 678, 24 N. E. 1095.

[12] Regularity required in proceedings.

The taking of testimony under oath by commissioners of accounts is not a judicial proceeding, even where a witness may be adjudged guilty of contempt for refusing to testify.- Matter of Hertle (In re Ahearn), 120 App. Div. (N. Y.) 717, 105 N. Y. Supp. 1022; affd. 190 N. Y. 29, 83 N. E. 1126.

Proceedings by a state railroad commission, which may punish with penalties disobedience to its orders, call for strictness and regularity, as the order has the force and effect of a criminal statute.- Littlefield v. Fitchburg R. Co., 158 Mass. 1, 32 N. E. 859.

§ 20. Practice before the commissions; immunity of witnesses.-All hearings before a commission or a commissioner, shall be governed by rules to be adopted and prescribed by

the commission. And in all investigations, inquiries or hearings the commission, or a commissioner, shall not be bound by the technical rules of evidence. No person shall be excused from testifying or from producing any books or papers in any investigation or inquiry by or upon any hearing before a commission or any commissioner, when ordered to do so by the commission, upon the ground that the testimony or evidence, books or documents required of him may tend to incriminate him or subject him to penalty or forfeiture, but no person shall be prosecuted, punished or subjected to any penalty or forfeiture for or on account of any act, transaction, matter or thing concerning which he shall under oath have testified or produced documentary evidence; provided, however, that no person so testifying shall be exempt from prosecution or punishment for any perjury committed by him in his testimony. Nothing herein contained is intended to give, or shall be construed as in any manner giving unto any corporation immunity of any kind.

Procedure before Interstate Commerce Commission,- see Interst Com. Act, §§ 9, 12, 13, 17, post, Appendix B.

Procedure before former Board of Railroad Commissioners,- see N. Y. R. R. L., §§ 157, 159, 163.

Procedure before former Board of Rapid Transit Railroad Commissioners, see N. Y. Rap. Tr. Act, § 3, post, Appendix A. Procedure in investigations by Commission,- see also, §§ 48, 72. General rules of statutory construction,- see ante, § 1, notes [23][40].

[1] The Commission not bound by technical rules of procedure. Where hearings will be held,- see ante, § 19, note [1]. Practice and procedure on investigations,- see also, post, § 48, notes. The inquiry of a board of the character of the Interstate Commerce Commission should not be too narrowly constrained by technical rules as to the admissibility of proof. Its function is largely one of investigation, and it should not be hampered by those narrow rules which prevail in trials at common law where a strict correspondence is required between allegation and proof.- Interst. Com. Commission v. Baird, 194 U. S. 25, 24 Sup. Ct. R. (U. S.) 563.

The function of the Interstate Commerce Commission being in part quasi-judicial, it must have been the intention of Congress that the procedure before the Commission should substantially conform to that before a court charged with the duty of finding the facts and giving

judgment thereon, or to the investigation and report of a referee or special master in chancery, passing on both facts and law.- Interst. Com. Commission v. L. & N. R. Co., 73 Fed. 409.

In matters of rates, etc., one case can seldom be an exact precedent for another. Each traffic situation presents points of difference, and each complaint must be considered and decided on its own peculiar facts.- Danville v. So. R. Co., 8 Inters. Com. R. 409.

The questions coming before the Interstate Commerce Commission are not of a character that the decision in one case is necessarily controlling in all similar cases. Its decisions can hardly be said to have the effect of an estoppel, nor is there the same reason for applying the maxim stare decisis which exists in courts of law. Conditions continually vary at different times and in different localities. But when the relation in freight rates (e. g., the differential) determines where and how business shall be done, the decisions of the Commission fixing or approving a given relation should only be reversed for imperative reasons. In the absence of some showing that new conditions have intervened, or that the effects of the original holding have been other than were anticipated, a prior decision should be controlling.— Board of R. R. Comrs. v. A. T. & S. F. R. Co., 8 Inters. Com. R. 304.

The Interstate Commerce Commission will consider itself bound to follow a decision of the U. S. Circuit Court of Appeals upon the same facts, though between different parties,- Cattle Raisers Assn. v. Fort Worth & D. C. R. Co., 7 Inters. Com. R. 513.

Giving due notice of the time and place of a hearing on a given subject and affording an opportunity to call or cross-examine witnesses is sufficient compliance with the Interstate Commerce Act.— In re Excessive Rates on Food Products, 3 Inters. Com. R. 151, 4 I. C. C. R. 116.

The object of the Interstate Commerce Commission, in its rules, is to simplify the practice as much as possible and exclude technicalities from its administration.- Oregon S. L. R. Co. v. No. Pac. R. Co., 2 Inters. Com. R. 572, 639, 3 I. C. C. R. 264.

In formulating its rules as to the preparation of applications for the compulsory production of books, papers, etc., the Interstate Commerce Commission will consider the provisions of the Act by which it is created and governed, and also the rules and practice in analagous proceedings in federal courts.- Rice v. Cincinnati, W. & B. R. Co., 2 Inters. Com. R. 507, 584, 3 I. C. C. R. 186.

The doctrine of estoppel of record does not apply to proceedings before the Interstate Commerce Commission. That body is not a court, but a special tribunal whose duties though largely administrative are sometimes semi or quasi judicial. It is required to investi

gate and report. The law creating the Commission does not mention its final act as a judgment. It renders no judgment, enters no decree. The rule of estoppel of record, at all times technical in character, cannot be invoked against a complainant.- Toledo Prod. Exch. & E. Kemble v. L. S. & M. S. R. Co., 2 Inters. Com. R. 492, 569, 3 Inters. Com. R. 830, 5 I. C. C. R. 166.

A case will not be decided on a theory not presented in the complaint or on the taking of testimony.- Martin v. C. B. & Q. R. Co., 2 Inters. Com. R. 32, 2 I. C. C. R. 25.

Persons interested in a matter pending before the Interstate Commerce Commission will be permitted to appear and be heard therein, without their being made formal parties to the adjudication.— Hurlburt v. L. S. & M. S. R. Co., 2 Inters. Com. R. 15, 31, 81, 448, 2 I. C. C. R. 122.

The Interstate Commerce Act deals with the substance of things and contemplates methods of procedure that are speedy and come to the very right of questions.-Riddle Co. v. Pittsburg & L. E. R. Co., 1 Inters. Com. R. 773, 1 I. C. C. R. 490.

In deciding whether to permit amendments to complaints, the Interstate Commerce Commission will be governed by principles of judicial procedure. Riddle v. B. & O. R. Co., 1 Inters. Com. R. 701, 1 I. C. C. R. 372.

Where the question presented to a railroad commission is what is just and right between two railways who must bear the expense of a crossing, if there is a contract existing between the companies by which one of them is under obligation to bear all the expenses, the commission may not properly ignore the contract, for it is bound by the same rules of law that would govern a court in deciding the same question.- Grand Trunk W. R. Co. v. Hunt, Ind., 81 N. E. 524.

In General.

[2] Immunity of witnesses Immunity of witnesses in court proceedings to compel adherence to published interstate tariffs,—see Elkins Act, § 3, post, Appendix B. Constitutional provisions as to privilege of witnesses, see U. S. Const., Art. V., N. Y. Const., Art. I., § 6. Immunity of witnesses in proceedings under Interstate Commerce Act extends only to natural persons,- see U. S. Act, June 30, 1906, c. 3920, U. S. Comp. Stat., Supp. 1907, p. 911. Provisions of N. Y. Penal Code as to privilege of witnesses, see N. Y. Penal Code, §§ 142, 469.

Punishment of witnesses for contempt,- see ante, § 19, notes [7]