Matter of Barnes , 204 N.Y. 108 ( 1912 )

This is a proceeding to punish the respondent, William Barnes, Jr., for an alleged contempt in refusing to produce certain books and papers, and to answer certain questions propounded to him, upon a hearing before a senate committee which was charged with the duty of investigating certain alleged abuses in the various public offices and departments connected with the municipal governments of the city and county of Albany. The proceeding was instituted under section 856 of the Code of Civil Procedure, which provides that if a person "subpœnaed and attending or brought * * * before an officer or other person or a body" as prescribed in the preceding sections (854, 855) "refuses without reasonable cause to be examined, or to answer a legal and pertinent question, or to produce a book or paper, which he was directed to bring by the terms of the subpœna, * * * the person issuing the subpœna, if he is a judge of a court of record, or not of record, may forthwith, or if he is not, then any judge of such court may upon proof by affidavit of the facts by warrant commit the offender to jail, there to remain, until he submits to do the act which he was so required to do, or is discharged according to law." The import of this section can only be ascertained by referring to section 854 which provides, among other things, that "a committee of either house of the legislature, or a joint committee thereof, duly empowered by resolution or act to sit and take testimony during the session thereof, or after the adjournment thereof," may issue a subpœna "by and under the hand of * * * or the chairman or a majority of the board or committee," requiring a person to attend, and in a proper case to bring with him a book or a paper.

The respondent was duly subpœnaed, and directed to produce certain books, which he refused to do, and asked to answer certain questions, which he refused to answer, not contumaciously, but because he challenged the right of the committee to require him to produce the specified books, or to answer the particular questions. Thereupon an application was made to a justice of the Supreme Court for an order to show cause why a warrant should not issue to apprehend the respondent, and to commit him to the jail of Albany county, there to remain until he should produce such books and answer such questions. Upon appeal to the Appellate Division, a majority of the justices held that section 856 of the Code of Civil Procedure is unconstitutional because it provides for no notice to the alleged offender, and is, therefore, repugnant to the "due process" clause of the Constitution. This conclusion was based upon the authority Matter of Grout (105 App. Div. 98), and reference to Matter ofMcAdam (7 N.Y. Supp. 454). In the McAdam case the General Term of the first department held that a summary commitment was valid, and that no notice was necessary to constitute due process of law. In the Grout case the Appellate Division of the second department held that notice is necessary to constitute due process of law and the section of the Code (856) is invalid because it contains no provision for notice.

Upon this appeal from the order of the Appellate Division, our brother GRAY has written an opinion in which he holds that under section 856 a summary conviction without notice violates no constitutional right; and that even if notice were necessary, we can read into the language of the section a provision requiring notice to be given. I dissent from the first of these two propositions but concur in the last. I think the language of section 856, which is by no means clear, may be so construed as to require notice to one charged with contempt, and that when read in connection with the provisions of the Judiciary Law relating to criminal contempts, the question is removed from the realm of doubt.

Conceding, for this branch of the discussion, that this proceeding stands upon the same footing as any similar proceeding to punish for an alleged contempt in a court of record, we have only to refer to the Judiciary Law (Sec. 750, subd. 3) to ascertain that the offense charged against the respondent is a criminal contempt; and a contempt which is within that classification can only be punished summarily when committed within the immediate view and presence of the court. (Judiciary Law, sec. 751.) The obvious reason for this provision is that in such a case the court is a witness to the contempt and needs no further proof. The same section of the Judiciary Law provides that a person charged with a criminal contempt not committed in the immediate view and presence of the court, can only be punished after having been notified of the accusation and the lapse of a reasonable time to make a defense. Unless we read into section 856 of the Code of Civil Procedure a provision for notice in cases of alleged contempts not committed in the immediate view and presence of the court, we have two statutes covering the same subject, and yet so diametrically opposed to each other that they cannot stand together. Under a fair construction of section 856 of the Code of Civil Procedure we may hold that it provides for notice. A careful reading will disclose the sharp antithesis between a case in which a judge has issued the subpœna, and one in which the subpœna is issued by another officer or body. In the one case the judge who has issued the process may forthwith issue a warrant; in the other, when the subpœna was issued by an officer or body having no power to commit or punish for contempt, the judge can only proceed "upon proof by affidavit of the facts." These words do not confine the proof to the affidavits of the accusing party, but should be held to embrace the evidence which the accused may furnish within such reasonable time as the court may fix. This construction of section 856 of the Code of Civil Procedure does no violence to its language, brings it into harmony with the explicit provisions of the Judiciary Law, and assures to every citizen charged with a contempt the most literal protection which the "due process" clause of the Constitution guarantees.

Unless we can read into section 856 a provision for notice, either by force of its own language or in connection with the mandates of the Judiciary Law, I regard the Code section to be plainly unconstitutional. We are not now concerned with the ancient and inherent powers of courts of record, or with the prerogatives of supreme legislative bodies, but with the law as we find it on our statute books. Conceding the inherent powers of these governmental agencies, it cannot be denied that it is an anomaly in legal procedure to impose upon one tribunal the duty to punish for contempts committed in another. That is precisely what the legislature has done in enacting section 856 of the Code in its present form. The Code provisions in which that section is found were taken over from the Revised Statutes. In their original form they related wholly to contempts against the dignity and the process of courts of record. By various amendments their provisions were extended to courts not of record, and to other officers and bodies authorized to issue process to compel attendance of witnesses and the taking of testimony, but having no power to punish for contempt. Not until 1900 was section 854 of the Code amended so as to include among the officers or bodies empowered to issue subpœnas "a committee of either house of the legislature or a joint committee thereof." By adding this provision to the section, and leaving the rest as it stood before, the legislature divested itself of any inherent power to punish as for a contempt in disobedience of its process, and vested that power in a judge of a court. A judge, in such a proceeding, is called upon to punish for a contempt alleged to have been committed, not in his view or presence, nor in defiance of process issued by him or his court, but before a legislative body. The only knowledge or information which a judge can lawfully acquire in such a proceeding, upon the question whether a contempt has been committed, is by proof in the form of affidavits or testimony, and if the statute is to be construed as denying to the accused any right to be heard, I think it is clearly unconstitutional.

It has been suggested that the warrant provided for in section 856 is not the final adjudication inflicting punishment, but merely an intermediate writ under which the alleged offender is taken into custody until he "submits to do the act which he was so required to do or until he is discharged according to law." It would be difficult if not impossible to imagine any more summary or effectual method of depriving a person of his liberty than to take him into custody without notice, transport him to a common jail and keep him there until "he submits to do the act" which is required of him. It matters little by what name such a mode of procedure is known. It is a deprivation of liberty, and if it is not upon notice it is not due process of law. For these reasons I vote to construe section 856 as providing for notice, and so construed it is clearly constitutional.

Upon the other questions in the case I concur in the views expressed by Judge GRAY. The statute (Section 856) directs that if a person subpœnaed, etc., refuses without reasonable cause "to answer a legal and pertinent question" he may be dealt with according to its provisions. What is a legal and pertinent question? Obviously one that violates no legal right of the witness, and that is pertinent — that is relevant and material — to the purpose of the proceeding or investigation in which the witness is being examined. If the question goes beyond this limitation it is illegal and impertinent and the witness cannot be compelled to answer it. Who is to decide whether a question is legal and pertinent? If a legislative committee or its counsel are to be the final arbiters upon this important limitation, it is an idle ceremony to appeal to the courts. It seems to me that the plain import of the words "legal" and "pertinent" as used in the statute is to confine the proceeding within lawful bounds and proper methods with respect to the legal rights of the individual who is called upon to testify, and when he challenges the legality and pertinency of the information sought from him, it presents a question of law for the courts to decide. If we were concerned merely with the cumulation of pertinent testimony, I should agree with our brother BARTLETT that the courts should not attempt to substitute their judgment for the discretion of a legislative committee. But that is not the question. We are to decide (1) whether a private citizen can be compelled to divulge to a legislative investigating committee his purely private and personal affairs when it is not perceivable that the inquiry into such matters is within the scope of the declared purpose of the investigation, and (2) whether the books of a corporation in which a witness is a stockholder must be produced for unlimited examination, when the only information of pertinent public interest to be obtained therefrom is either already in the possession of such committee or has been offered to it.

The five oral questions which the respondent refused to answer all relate to his ownership of stock in the J.B. Lyon Printing Company, and were asked for the purpose of ascertaining how and when he got the stock, and what he paid for it, if he paid anything. It is charged that for a number of years the J.B. Lyon Company had been paid large sums for county printing without public bidding at the instance of Republican county officials; and that it had also done a large amount of city printing either directly upon the orders of city officials, or indirectly upon orders received through the Journal Company. The innuendo is that these things were done at the instance of the respondent, an influential political leader and a large stockholder in both printing companies. If there was anything illegal or morally culpable in the transactions between either of these corporations and the county or city officials or departments, it would not be more so because the respondent had received stock as a gift, and it would not be less so if he had paid full value for it. In either event, the legitimate and pertinent inquiry would be as to the character of the transactions, and not as to the motives of the persons connected with them. Neither would the answers to any of these questions throw any light upon the propriety or necessity for recommending future legislation designed to regulate, limit or forbid the letting of municipal contracts to corporations having stockholders of political influence who have paid nothing for their stock. If that is an evil which can be reached and remedied by legislation, no amount of probing into the private affairs of any individual can make the necessity for such action more apparent or urgent.

What has been said concerning the oral examination of the respondent applies with equal force to the effort to compel the production of the books of the Albany Journal Company. The charges against that corporation are to the effect that the corporation received large sums for the printing of Session Laws when in fact it had rendered no such service; that for several years the Journal Company received from the Argus Company fifteen per cent of the amount paid to the latter by the city of Albany for city printing, and that this was done not in payment for any service performed but as a bonus or gratuity; that the Journal Company for several years received orders for city printing without competitive bids; and in some instances in violation of the city charter arranged to so subdivide these orders as to obviate the necessity for public bidding. It is not contended that the books of the Albany Journal Company would disclose any facts which would substantiate these charges; on the contrary, the assertion is that they have been established by other evidence. The respondent offered to give the committee true sworn copies of the Journal Company's books covering all dealings between the corporation and the city or county of Albany, but that offer was declined. The charges in this behalf were definite, and we have the word of counsel for the committee that they were proven. In that aspect of the matter the committee needed no further information, and even if it did, it declined the respondent's offer to furnish the only further evidence that was pertinent to the charges. It is no answer to say that extracts from the books might not have shown the true state of affairs. If it is true as charged, that the Journal Company received payment for work that it never performed and evaded the provisions of the city charter by subdividing orders or contracts for city printing, the proof of these facts would probably not be found in its books. Even if we could indulge in the assumption that the books of the Journal Company would disclose information which is material to the charges, we should not assume, in a proceeding to punish for a criminal contempt, that the respondent under his offer would not have furnished all that the books contained relative thereto. Had the committee accepted the respondent's offer, and had the sworn extracts from the books indicated that the respondent was not acting in good faith, we would have quite a different question to decide. For these reasons, and for the reasons more fully set forth in the opinion of Judge GRAY, I think the committee went beyond its power in its effort to compel the respondent to answer the five questions which have been discussed, and to produce and disclose the books of the Journal Company.

I vote to affirm the order of the Appellate Division.