Judges: Pajjsons
Filed Date: 9/29/1910
Status: Precedential
Modified Date: 10/19/2024
The plaintiffs' petition for abatement is a civil cause in which they have the right to take the deposition of any witness for use at the trial. P.S., c. 225, s. 1; Rancour's Petition,
Whatever rule may properly guide the referees in the admission or rejection of evidence when produced before them (Doe, J., in Cocheco Mfg. Co. v. Strafford,
In this controversy between the plaintiffs and the state, in which the witnesses are not immediately interested, the witnesses complain that they are asked to disclose by oral testimony and the production of written matter in their possession details of their private affairs for the benefit of strangers. The ground of their objection is not very clearly presented, but it seems to be, aside from a natural disinclination to make public disclosure of their business affairs, that such disclosure may in some way result to their pecuniary disadvantage. "No Subject shall . . . be compelled to . . . *Page 516 furnish evidence against himself." Bill of Rights, art. 15. But this article relates to criminal proceedings only. Wood v. Weld, Smith (N.H.) 367, 368. It has not been suggested that response to the inquiries or the requests for the production of papers would tend to incriminate either of the witnesses.
There was at one time in England diversity of opinion whether a witness could be compelled to testify to facts which might expose him to a civil suit or to pecuniary loss, which was settled by a statute declaring that a witness cannot by law refuse to answer a relevant question upon the ground that the answer may tend to establish he owes a debt, or is otherwise subject to a civil suit. 46 Geo. III, c. 37 (May 5, 1806). This statute has generally been accepted in this country as correctly declaring the law. 1 Gr. Ev., s. 452; 3 Wig. Ev. s. 2223. It was so held in this state in 1825 (Copp v. Upham,
While the witnesses are naturally disinclined to disclose the details of their private business for the benefit of third parties, the duty to do so when required in the administration of justice is one devolving upon them as members of a civilized community. Except for such duty, the promise of protection to each member of the community by the twelfth article of the bill of rights, and of a certain remedy for wrong by recourse to the laws, declared to be the right of each subject by the fourteenth article, would be of no value. This remedy through judicial procedure is part of the protection guaranteed to each member of the community from the community, by the twelfth article, and to effect which each member is by the same article declared to be bound to contribute his share of the expense and to yield his personal service when necessary. There could be no judicial administration of rights without the personal service of members of the community, and their efforts as such officers would be futile if other members of the community possessing knowledge of, or other evidence as to, the controversy were not obliged to yield their services when necessary. The service rendered by the witnesses in appearance at the *Page 517 caption in obedience to the subpoena was doubtless not agreeable to them and was not performed without pecuniary sacrifice. Inconvenience, monetary loss, or disinclination they did not regard as an excuse for disobeying the subpoena requiring their presence. Neither is a valid excuse for failure to testify or obey the subpoena duces tecum. The service is one which they are constitutionally bound to render and for which they perhaps can obtain full recompense only when they may be compelled to ask like protection from the community. The constitution merely recognizes and declares, but does not create the duty. "Every person in the kingdom, except the sovereign, may be called upon and is bound to give evidence to the best of his knowledge upon any question of fact material and relevant to an issue tried in any of the queen's courts, unless he can show some exception in his favor." Willes, J., in Ex parte Fernandez, 10 C. B.N.S. 3, 39. "For three hundred years it has been recognized as a fundamental maxim that the public has a right to every man's evidence." 3 Wig. Ev., s. 2192.
One issue in the principal case is at what rate the plaintiffs' tax should be assessed so that they may be taxed "at a rate as nearly equal as may be to the average rate of taxation . . . upon other property throughout the state." Unless such property throughout the state is appraised at its full value for taxation, the determination of the average rate involves something more than a mere arithmetical calculation. That in order to tax all property equally it is as necessary to value it by the same standard, as to take for the tax the same portion of the value when found, is a plain mathematical proposition which as matter of law has been so thoroughly considered by this court that comment is now uncalled for. The plaintiffs' claim, that property other than theirs is not appraised for taxation at its full value, makes an issue as to the true value of all taxable property in the state. The evidence sought from the witnesses, both oral and documentary, having some tendency to establish the value of the stock in trade of the two corporations, to which the inquiries were directed, was all material and relevant to the issue raised. Whether the price paid for certain interests the John B. Varick Company (one of the questions which a witness declined to answer) will be of weight in determining the value of the stock in trade of the company would seem to depend upon whether the stock in trade was or not the main element in determining the value of the interests sold and purchased. Upon that question opposite views are entertained by the witness and counsel for the plaintiffs. It may be that when the evidence is presented at the trial the matter, though relevant, will be found too remote to aid the triers. It is *Page 518 probable that the request that the questions raised by the motions should be sent to the referees for determination is made with this thought in view.
But the statute authorizing the taking of depositions for use at the trial cannot be repealed to accommodate the witnesses. The history of the statute, detailed at length in Hayward v. Barron,
It has been suggested that the courts of this jurisdiction possessed greater power to provide for taking the depositions of absent witnesses than was entertained by common-law courts. Russell v. Fabyan,
In 1867 (G. S., c. 210, s. 1), it was provided in the language of the present law that the deposition of any witness might be taken in a civil cause and used at the trial, unless the adverse party procured his attendance, so that he might be called to testify when the deposition was offered. This extension of the privilege may have been due to the fact that the preparation of evidence in this way in advance had been found of advantage in the conduct of trials, or because it was desired to further relieve parties from the inconvenience and expense attending the personal attendance of witnesses, which had been considered an incidental object of the earlier legislation. Hayward v. Barron,
It is further suggested that the inquiries as to the value of stock in trade call for the exposure of trade secrets which are privileged. Upon what ground the average value of the stock in trade of a trading or manufacturing corporation can be called a "trade secret" has not been explained. But whatever view might be taken as between competitors in the same line of business, the amount of the stock in trade of such organizations is not a matter which, as it relates to taxation, they are privileged to keep secret. On the contrary, in order to enable the state to execute the sovereign power of taxation, such corporations are required to make a return to the taxing officers each year of the amount of such stock. P.S., c. 55, s. 7, cl. 6; 1b. c. 57, ss. 4-8. The matter is public — not secret.
In the legal search for truth made for the protection of members of the community, the parties and the state are entitled to all evidentiary matter in the knowledge or control of each member of the community which will aid the inquiry. As to some matters greater injustice would be done by compelling the witnesses to disclose than by determining the controversy without their aid. Such matters are exceptions to the general duty to give evidence. 3 Wig. Ev., ss. 2192, 2193. As the questions which the witnesses have refused to answer are not privileged, the plaintiffs are as matter of law entitled to the evidence asked for. But while it is the duty of witnesses to furnish all the facts in their possession which are not privileged, the performance of that duty should not be made any more unpleasant or arduous than is necessary. There seems to be considerable doubt whether the question as to the price paid for the interest in the John B. Varick Company will be material at the *Page 521 trial; and as the witness does not wish to make the same public, should he volunteer to attend the hearing before the referees the question should not be insisted upon in the deposition.
The motions are granted.
All concurred.