Show DYER CONTEMPT CASE the question of the contempt proceedings against marshal dyer for refusing to answer certain questions as to his conduct as receiver in the suit against the church came up in the territorial supreme court jan 21 each of the judges filed an opinion as follows BY CHIEF JUSTICE A petition was presented to this court in the above entitled action signed sig ned by T C bailey chairman of the board of trustees seventh school district rudolph alff chairman board of trustees E eighth school district and J T millspaugh secretary board 0 of f trustees of the twelfth district for permission to be allowed to become parties therein that petition was wae denied on the ground that they were not proper bartles parties and had no right to be rought brought in as intervenors the petition however contained contain ed serious charges reflecting upon the receiver appointed in t that hat action and upon his attorneys and it was decided that while the petition should not be granted the charges of corruption fraud improper and unprofessional conduct ought to be investigated leave was given therefore to the petitioners petition ers to file their petition in this court coult the persons charged with improper con duct were required forthwith as officers of the court to ille file their answers thereto and in the language of the decision then made it it should be referred to an examiner to take such testimony as is offered both to sustain and disprove the charges contained in the petition the question of the amount of compensation which the receiver should shou ad be entitled to receive for his services having havi ng theretofore been by an order of this court referred to an examiner it was further decided that that question should be reserved until the report of the examiner to be appointed to take proofs of improper and unprofessional conduct should be received thereupon an order was entered and the charges of referred to examiner li harkness an examination was commenced before that examiner and the receiver dyer was sworn and interrogated as to his conduct he refused under the advice of his attorney as appears from the record before us to answer certain questions declared by the examiner to be proper his refusal so to answer has been reported to this court and an d an order is asked for declaring him guilty of contempt and that he be punished A motion is also made for an amendment of the provisions of the order heretofore granted denying the application of the school trustees and providing for an examination of the said charges the amendment requested is that after providing that the examiner take and report such evidence as may 7 be produced deuced either by the petition ers or the receiver and his counsel touching the matters in said petition set out there be inserted after the words set out the following words to wit charges of corruption araud fraud and unprofessional conduct so as to define with more particularity the precise matters referred to and to be examined before that referee the two applications cat ions as ah they relate somewhat to the same matter may be considered together when the order of reference directing that testimony concerning m 1 the charges set forth in the petition was made it was the intention of the court that the examiner therein appointed anted should take touching misconduct odthe of the officers of the court kiy only inasmuch h as the question of the a amount of compensation to be allowed to the rec receiver e aver had already been referred this intention was evident from the d decision ol 01 of the court then rendered if the order made had been drawn so as to embody the purpose of the court the amendment to the order now sought would have been unnecessary sar v if granted now the amended order will incorporate the intention and decision of the court as then expressed and we think the amendment should be allowed As aa the order was originally drawn the pe titio ners contention that the question of compensation was also referred had some grounds if read alone and not in connection with the decision of the court Und under erthe the order of the court as then entered 4 the question which the witness refused to answer was waa proper and pertinent and the question should have been answered 1 on such an examination as this the wisest course generally is not to stand on the accusers accuse ds legal rights to but to answer freely and in detail all questions that have the remotest remo teet connection with the subject d of the investigation the 1129 r ruling of the 40 examiner b by which he excluded questions ref relating abing to the conduct and financial condition of tho the receiver when acting as a private citizen or acting in any other official capacity was correct the charges charged made against him were directed to his conduct as an officer of this court and all questions that bore on that point even though remote aud and not clearly connected with it should have been answered the receiver as ae appears from the testimony before us was advised by his counsel that he need not answer the question the refusal of which has been reported by the referee to this court it has been held in many cases similar to this that such advice hone honestly s aly given and accepted and acted upon in good feath faith to is to be considered as exculpatory 3 sandford the receivers counsel were wrong in giving such advice the order 0 der standing alone and not taken in connection with the decision of the court authorized and justified the question put to the receiver if in in their opinion the order was incorrect it was their duty to fo have promptly moved the court for its correction and amendment en and the examiner on their stating n their wish would have doll doubtless tl have suspended temporarily the examina examination tien of the witness ness until the decision of the court upon their application to amend could have been obtained it has been held that a referee has no power to dismiss a suit because of a refusal of the plaintiff or a witness to testify he should report the matter to the court and await its decision in this case however the examination has no not t been so fully closed that it may pot not be resumed we are of the opinion that under the amended order the examination should proceed before the same examiner we are not willing that the conduct of sueh officers fibers should when challenged so 80 seriously as is the case here be allowed to pass without a fulland full and complete examination by means of which the charges made may bo be either proven or the persons accused exonerated the hearing therefore must be continued as rapi rapidly adly as possible I 1 were it not for the excuse presented by the receiver for his conduct before the examiner a fine would be imposed on him his refusals to answer although no one has suffered were unjustifiable ustinia and contemptuous a and n unexcused would have merited serious and severe punishment under the circumstances presented here however the proceedings lookin looking Uto to his punishment should be arree arrested and the application therefore denied re he will be allowed an opportunity in III the examination when resumed to show that he purges himself of this particular contempt by answering the questions ruled upon by the ex examiner ami as roper proper the quest question on of compensation to be allowed h him will as was heretofore dherete direct ei remain of jintil the completion of the examination now to be resumed an order will be entered providing for the further and speedy investigation vesti gation of the charges or of improper and unprofessional conduct such investigation to be carried before V examiner harkness the time and place pe of which will be fixed by the court in ite order As to the terms of the order submitting resubmitting re the matter to the examiner I 1 concur in the opinion read by judge henderson BY JUDGE HENDERSON the reference to investigate the o barges against the receiver and his attorneys has failed when the report of the examiner to whom was referred erred the matter of compensation k to w the receiver and his attorn attorneys ays eys n was as presented to this cour tor it was announced that it was ready tobe to be filid led the petition of the school trustees was presented asking for the right to intervene as parties to that proceeding we held bold that the interests of the petitioners petition ers were too remote to be allowed to intervene as parties but the petition contained charges of grossly improper fraudulent and dishonest conduct that by this misconduct the ma fund had suffered a loss of over the charge was directly made that this court has been imposed upon and deceived by the representatives of the receiver and his at attorneys tornes and that the receiver had fraudulently acted in collusion with the defendants in the case and with some of his bondsmen and that fraudulent and unconscionable compensation pensa tion had been sought at once upon the hearing of these petitions tit ions without entering upon any investigation of the matters contained in judge spragues report as to the amount of compensation deeming that question wholly immaterial to us if the charges contained in the petition were true and that the question of the amount of compensation would never be reached by this court in that event this court directed that the petition be received and filed as charges of official misconduct on the part of the receiver and the attorneys so far as such fraud and misconduct misconduct were alleged herein and directed an examination of the charges at one once e the session of the court necessarily terminated on the day this order was made the engagements of the judges imperatively called them to their respective districts at once thereafter but to facilitate the investigation vesti gation it was sought to refer the taking of testimony upon these charges to an examiner and with the consent of all parties concerned selection was made of one of the most eminent and learned members of the bar of this territory whose action in the matter has fully justified the confidence reposed in him at the time of making this order the court filed in writing a memorandum of the order that was intended by it this was done in view of the fact that the court would necessarily adjourn before the order could formally be reduced to writing and entered upon the journal and attention was expressly called to it at the time and counsel were directed to operate cooperate co in preparing the order pursuant to the directions this seems to have been neglected and the order entered and given to the examiner referred all matters contained in the petition to the examiner no answer had been filed to the charges and under such circumstances the reference was somewhat uncertain ample time was waa given by the order to each party to produce ro wre testimony the answer of respondents spon dents was thereafter filed traversing the entire petition and on the day appointed by the order sal all these matters were taken to the examiner and an examination was attempted and he has reported to us sixty five pages of proceedings had before him arid and not more than ten pages of this is testimony abonce at once an application was made for an intervention by certain parties the parties differed widely as to the scope 0 othe the examination on the part of the petitioners petition ers it was claimed that it was but a continuation of the examination before judge sprague and that everything every thing was in issue that was put in issue by the petition and answer that the respondents spon dents having been examined before judge cudgle 8 sprague could be recalled and that ahelf their ir race c character fracter was in issue the same as though they were plaintiffs in an action of libel or slander and that they might be cross croas ex upon that theory on the other hand this was deniff denied an ani I 1 it was claimed that nothing upon the subject of compensation could be received the petitioners petition ers called respondent spon dent dyer and proceeded to examine him upon the theory claimed by them the examination was without authority conferred by the order of reference we fully appreciate e the embarrassing embar assing situation of the learned examiner and fully affirm his conduct of the matter before him and only regret that he was not clothed with authority in the premises and we propose to refer it back to him and give him that authority we can see no good reason why the petitioners petition ers should not have proceeded with other testimony especially I 1 in n view of the fact that the gonTen respondents ts offered to stipulate that res t the e examiner should have authority to pass pabs upon all questions of the admissibility of testimony and the scope of the inquiry it is but fair that a speedy investigation should be had counsel as well as red receiver eiver are resting under grave charges the examination to be bad before the examiner is in nowise a continuance of the investigation before judge sprague we have expressly reserved that question until after this investigation we have not examined the matters of that report and do not care to until we hear from this investigation if in the end it comes to be a mere question of computing and estimating ti the amount of compensation this court will proceed to do this upon its responsibility as guardian of the fund in controversy and will seek such information as is necessary for that purpose on the other hand band if these charges of fraud are sustained no inquiry of that kind will become necessary and the bond of this receiver will stand as indemnity to make good any loss the fund has sustained thereby the examination is to be had under the order of reference it is the order of the court which specifies the matters to be investigated and confers jurisdiction upon the examiner and points out the range of inquiry and the parties cannot by their allegations and menials upon other immaterial matters make them material we have examined with care the supplemental report made by the examiner containing a detailed statement of all that transpired before him and we are satisfied with the rulings s he retook betook took the responsibility of f mak making as well as the action he intimated intimate he would take if he was himself hearing the case and had authority in the premises an order should be entered referring it back to the examiner and the order should be modified so as to provide that the examiner shall proceed to take testimony furnished by either the petitioners petition ers or the respondents 8 spon indents dents res respecting pectin any and all 3 legations allegations of araug fraud corruption misconduct fraudulent claims and and charges for compensation and unprofessional conduct on the part of prank frank H dyer as receiver in this case and of george 8 peters and parley L williams as his attorneys contained in said petition that said robert harkness be clothed with all the powers and authority of examiner of this court for such examination that he be authorized to pass upon and determine all questions of the admissibility of testimony the same as though he were being tried before him subject however to the right of either party to appeal a to this court by way of exceptions e pt to his ruling thereon that either e th of the parties interested be authorized to take subpoenas from this court for witnesses to appear before said examiner that said examiner fee be empowered to employ officers either tle federal deral or territorial to attend him under his direction wid and to fix their com compensation n to employ stenographers and to swear witnesses t that such examination on the part of the petitioners petition ers begin january 1889 and that they be given four days in which to give such testimony that the respondents in reply commence on tuesday january 29 1889 and that they be given |