This is an appeal from an order of the Appellate Division, in the third department, which reversed an order committing William Barnes, Jr., to jail for refusing to answer certain questions, propounded to him, as a witness, by a committee of the senate of the state, and which denied the motion for his commitment.
On July 21st, 1911, the senate and assembly of the state adopted a concurrent resolution, which authorized the appointment of a special committee of the senate with power to investigate certain charges, which had been made concerning the administration of the various offices and departments connected with the city and county of Albany, and to report to the senate thereon, with such recommendations as in its judgment the public interests require. Power was conferred to compel the attendance of witnesses and the production of books and papers. The charges to be investigated were, in substance, that grave abuses exist in the departments of the county and of the city; that they were corrupt; that the laws and municipal ordinances, relating to the prevention of crime and to the maintenance of peace, order and morality, were not strictly enforced, or were enforced with partiality; that the departments were "conducted with the object of personal gain," dishonestly, with "discriminations against the citizens" and with extravagance. The committee, in the course of its investigations, had before it, as a witness, under subpœna, William Barnes, Jr. He refused to answer certain questions addressed to him and, also, though subpœnaed thereto, refused to produce the ledgers and books of original entry showing
the business of the Journal Company, a corporation of which the witness was the president. He raised no other question, except with relation to the right of the committee to ask the questions, or to compel him to submit the books. Thereupon an order was granted by a justice of the Supreme Court, which required Barnes to show cause, at a time and place named, why a warrant should not issue for his commitment to jail, until he answered the questions and produced before the committee the books specified. Upon the hearing, on the return to the order, it was ordered that a warrant issue committing the witness, until he answered certain five of the questions propounded and produced the books of the Journal Company, showing its business "with various departments of the City and County of Albany and with persons andcorporations transacting business with said City and County forthe past ten years." Barnes, alone, appealed from this order and, thus, the judicial inquiry is restricted to the pertinency of the five questions and to the propriety of compelling the production of the corporate books.
The majority of the Appellate Division justices held the provisions of section 856 of the Code of Civil Procedure, under which the proceeding was brought, to be unconstitutional; inasmuch as the section "contemplates no notice to the alleged offender." That section reads, so far as material: "if the person subpœnaed and attending * * * before an officer or other person or a body refuses without reasonable cause to be examined, or to answer a legal and pertinent question, or to produce a book or paper, * * * any judge of such court (court of record) may upon proof by affidavit of the facts by warrant commit the offender to jail, there to remain, until he submits," etc. The decision of the Appellate Division followed, without discussion, the authority of Matter of Grout, (105 App. Div. 98); where the Appellate Division, in the second department, had
held that the section operated to deprive the witness of his liberty without due process of law; because it did not provide for notice to him and for an opportunity to be heard. Previously, the General Term, in the first department, in Matter of McAdam,
(7 N.Y. Suppl. 454), had upheld the constitutionality of the section. In that case, Justice VAN BRUNT, speaking for the court, held that "the practice of summary commitments has prevailed ever since the Revised Statutes were adopted * * *. Such a procedure in the case of a witness has been recognized for a sufficient length of time to bring it within the category of `due process of law.'" (p. 456.) The court below held itself "constrained to follow the Grout case, as the latest decision of a court of co-ordinate jurisdiction." This question, therefore, first presents itself to us and I am of the opinion that Mr. Justice KELLOGG, at the Special Term, correctly held the provisions of the section to be constitutional. In his view, and I think it the correct one, the proceeding to punish a contumacious witness was always summary and expeditious, and necessarily so, in order to prevent delay in the administration of justice. The substance of this section of the Code was taken from the Revised Statutes, (2 R.S. 401, sec. 47), and there never has been any limitation of the law, with respect to the witness, requiring notice preliminary to his commitment for contempt. (1 Rev. Laws, 457, sec. 5, and Laws of 1807, chap. 130, sec. 4.) This statute is, and always has been, a valuable instrumentality in the administration of justice and the enforcement of laws. Punishment for contempt by summary conviction, either upon a rule to show cause, or by attachment in the first instance, was deemed at common law to be inherent in courts of justice and legislative assemblies. (See Yates v. Lansing, 9 Johns. 395-416; 4 Blackst. Com. 286.) As a principle of the common law of England, it became a part of our common law and in that principle is found the source of the provision in the Revised Statutes,
in which section 856 originated. The adoption of the provision should, justly, be regarded as not contravening any constitutional provision. Until the decision in the Grout Case,
(supra), its constitutionality had not been questioned by any decision, of which I am aware.
Besides, I think that a witness has all the protection he is entitled to — as much as if notice was expressly required to be given him — in the peculiar and explicit language of the section. That is, he may not be committed to jail, unless he "refuseswithout reasonable cause to be examined, or to answer a legaland pertinent question, or to produce a book, or paper," etc. This provision requires of the judge that he first determine whether the refusal of the witness, in question, was, or was not, with reasonable cause and whether the question asked was pertinent, and that, necessarily, imports that the witness has been heard from upon the reasonableness of his refusal. Due process of law has been defined "as law in its regular course of administration through courts of justice." (2 Kent. Com. 13.) It seems to me, as it was held in Happy v. Mosher, (48 N.Y. 313, at p. 317), that it is a sufficient notice when the party proceeded against "will be apprised of what is going on against him, and an opportunity is afforded to him to defend." (And seePeople ex rel. McDonald v. Keeler, 99 N.Y. 463, at p. 479.) It would be, indeed, unfortunate for the administration of justice, if it should, now, be held that this statutory provision is invalid, when, as Mr.
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This is an appeal from an order of the Appellate Division, in the third department, which reversed an order committing William Barnes, Jr., to jail for refusing to answer certain questions, propounded to him, as a witness, by a committee of the senate of the state, and which denied the motion for his commitment.
On July 21st, 1911, the senate and assembly of the state adopted a concurrent resolution, which authorized the appointment of a special committee of the senate with power to investigate certain charges, which had been made concerning the administration of the various offices and departments connected with the city and county of Albany, and to report to the senate thereon, with such recommendations as in its judgment the public interests require. Power was conferred to compel the attendance of witnesses and the production of books and papers. The charges to be investigated were, in substance, that grave abuses exist in the departments of the county and of the city; that they were corrupt; that the laws and municipal ordinances, relating to the prevention of crime and to the maintenance of peace, order and morality, were not strictly enforced, or were enforced with partiality; that the departments were "conducted with the object of personal gain," dishonestly, with "discriminations against the citizens" and with extravagance. The committee, in the course of its investigations, had before it, as a witness, under subpœna, William Barnes, Jr. He refused to answer certain questions addressed to him and, also, though subpœnaed thereto, refused to produce the ledgers and books of original entry showing
the business of the Journal Company, a corporation of which the witness was the president. He raised no other question, except with relation to the right of the committee to ask the questions, or to compel him to submit the books. Thereupon an order was granted by a justice of the Supreme Court, which required Barnes to show cause, at a time and place named, why a warrant should not issue for his commitment to jail, until he answered the questions and produced before the committee the books specified. Upon the hearing, on the return to the order, it was ordered that a warrant issue committing the witness, until he answered certain five of the questions propounded and produced the books of the Journal Company, showing its business "with various departments of the City and County of Albany and with persons andcorporations transacting business with said City and County forthe past ten years." Barnes, alone, appealed from this order and, thus, the judicial inquiry is restricted to the pertinency of the five questions and to the propriety of compelling the production of the corporate books.
The majority of the Appellate Division justices held the provisions of section 856 of the Code of Civil Procedure, under which the proceeding was brought, to be unconstitutional; inasmuch as the section "contemplates no notice to the alleged offender." That section reads, so far as material: "if the person subpœnaed and attending * * * before an officer or other person or a body refuses without reasonable cause to be examined, or to answer a legal and pertinent question, or to produce a book or paper, * * * any judge of such court (court of record) may upon proof by affidavit of the facts by warrant commit the offender to jail, there to remain, until he submits," etc. The decision of the Appellate Division followed, without discussion, the authority of Matter of Grout, (105 App. Div. 98); where the Appellate Division, in the second department, had
held that the section operated to deprive the witness of his liberty without due process of law; because it did not provide for notice to him and for an opportunity to be heard. Previously, the General Term, in the first department, in Matter of McAdam,
(7 N.Y. Suppl. 454), had upheld the constitutionality of the section. In that case, Justice VAN BRUNT, speaking for the court, held that "the practice of summary commitments has prevailed ever since the Revised Statutes were adopted * * *. Such a procedure in the case of a witness has been recognized for a sufficient length of time to bring it within the category of `due process of law.'" (p. 456.) The court below held itself "constrained to follow the Grout case, as the latest decision of a court of co-ordinate jurisdiction." This question, therefore, first presents itself to us and I am of the opinion that Mr. Justice KELLOGG, at the Special Term, correctly held the provisions of the section to be constitutional. In his view, and I think it the correct one, the proceeding to punish a contumacious witness was always summary and expeditious, and necessarily so, in order to prevent delay in the administration of justice. The substance of this section of the Code was taken from the Revised Statutes, (2 R.S. 401, sec. 47), and there never has been any limitation of the law, with respect to the witness, requiring notice preliminary to his commitment for contempt. (1 Rev. Laws, 457, sec. 5, and Laws of 1807, chap. 130, sec. 4.) This statute is, and always has been, a valuable instrumentality in the administration of justice and the enforcement of laws. Punishment for contempt by summary conviction, either upon a rule to show cause, or by attachment in the first instance, was deemed at common law to be inherent in courts of justice and legislative assemblies. (See Yates v. Lansing, 9 Johns. 395-416; 4 Blackst. Com. 286.) As a principle of the common law of England, it became a part of our common law and in that principle is found the source of the provision in the Revised Statutes,
in which section 856 originated. The adoption of the provision should, justly, be regarded as not contravening any constitutional provision. Until the decision in the Grout Case,
(supra), its constitutionality had not been questioned by any decision, of which I am aware.
Besides, I think that a witness has all the protection he is entitled to — as much as if notice was expressly required to be given him — in the peculiar and explicit language of the section. That is, he may not be committed to jail, unless he "refuseswithout reasonable cause to be examined, or to answer a legaland pertinent question, or to produce a book, or paper," etc. This provision requires of the judge that he first determine whether the refusal of the witness, in question, was, or was not, with reasonable cause and whether the question asked was pertinent, and that, necessarily, imports that the witness has been heard from upon the reasonableness of his refusal. Due process of law has been defined "as law in its regular course of administration through courts of justice." (2 Kent. Com. 13.) It seems to me, as it was held in Happy v. Mosher, (48 N.Y. 313, at p. 317), that it is a sufficient notice when the party proceeded against "will be apprised of what is going on against him, and an opportunity is afforded to him to defend." (And seePeople ex rel. McDonald v. Keeler, 99 N.Y. 463, at p. 479.) It would be, indeed, unfortunate for the administration of justice, if it should, now, be held that this statutory provision is invalid, when, as Mr. Justice KELLOGG well observed, a fair reading of the section, "both with regard to its working and its purpose, permits a construction, which would uphold as constitutional this most necessary provision of law." The objection urged is, as it seems to me, excessively technical, in view of the provision I have called attention to, which prescribes, as a condition precedent to the commitment of the witness, that the committing judge shall determine the reasonableness of the witness' cause for refusing to testify. Without greater
elaboration of the question, I am, unhesitatingly, of the opinion that the provisions of section 856 are constitutional and valid.
That each house of the legislature may punish contempts of its authority by other persons, where they are committed in its presence, may not be disputed and, equally, may it be a contempt of the house for a witness to refuse to appear, or to testify, before its duly empowered committee, or to produce books, or papers. (Cooley's Const. Law. *135; People ex rel. McDonald v.Keeler, supra.) Sections 854, 855 and 856 of the Code of Civil Procedure were enacted to make provision for such an attendance of a witness before a committee of either house and for his punishment when contumacious. Section 854 provides for requiring by subpœna his attendance and that he bring with him a book, or paper, "in a proper case." Section 856 provides, as a condition of invoking the aid of the court, that the question, which is propounded to him, shall be "legal and pertinent."
Taking up the question of the right to compel the witness to produce the books of the Journal Company, of which he was the president, I think it turns upon whether their production became necessary to the inquiry set on foot through the legislative committee. If the evidence before that body was a sufficient showing of the character of the dealings, and of the methods of the company in transactions, with the departments of the city and county government, then I think it was not, in the language of section 854, "a proper case" to insist upon laying bare the corporate books. The committee wanted such evidence of abuses, or of corrupt practices, or of such official misconduct, as would enable it to "report the information required by the resolution * * * with such recommendations as the public interests require." It was not a proceeding against the corporation itself; for it was brought into the investigation incidentally to a general inquiry into the conduct by the officers of the municipal government. The
committee was not collecting evidence to visit the corporation with pains and penalties. It was an investigating body seeking material for general legislation. Unquestionably, as a creature of the state, the corporation received its franchises and privileges subject to the laws of the state and the limitations of its charter. In a proper proceeding instituted by the People, through their law officer, against the corporation, or its officers, it might be perfectly proper to investigate its doings and its exercise of powers, and, to that end, to go through its books and papers. It must submit them, if the proceeding be one to investigate alleged violations of its charter and to inquire into causes of forfeiture for abuses of its powers, or privileges, and it cannot refuse upon the ground of self-crimination, as may the individual. What the citizen may refuse to do is referable to his constitutional rights; but a corporation does not stand on the same ground. It receives its charter, subject to the reserved right of the legislature to inquire into the exercise of the franchises and privileges conferred. Therefore it is that when the witness, Barnes, refused to produce, or to allow to be produced, the corporate books, his refusal cannot be supported on any other ground than that the committee had all the information upon the subject of the inquiry touching the Journal Company's relations with the city and county departments that was necessary for its general purposes and that to allow an examination into the business of the company, generally, as it would be revealed in its books, was improper and without jurisdiction. The evidence showed the practices of the company in its transaction of the public business and its methods in dealing with public officials, sufficiently, for the committee to frame recommendations, if any were deemed needful, for further legislation in the public interest. It appeared in evidence that the Journal Company published the Albany Evening Journal, a daily newspaper, in the city of Albany. The Argus Company had the contract to print the proceedings
of the common council and the reports of the various officers and departments of the city. These would be kept in type. Copies would be ordered from the Journal Company by officials, which would obtain them from the Argus Company. The Journal Company would deliver them and receive twenty-five per cent of the cost price, without other service than turning over the order to the Argus Company. The Argus Company, also, paid to the Journal Company fifteen per cent of the amount received by it from its printing contracts. Printing for the city officials was done by the Journal Company without competitive bidding, by dividing an order, when in excess of $250, the figure at which competitive bidding was necessary for city work. The Journal Company had been paid by the state for bills, after audit by the state comptroller, for the printing of the Session Laws for a period of twelve years, when, as it is charged, it had done no such printing, except as it was done from forms purchased from others. These facts had been testified to and Barnes offered to furnish the committee with true copies, verified, of the contents of the corporate books, which showed all the dealings for the period in question with the city and county, and with their officials.
This was no occasion for going through the corporate books for the purpose of fishing for other facts, which might reflect discreditably upon the business methods of the company; with the result of exposing its business dealings to the world. InWilson v. U.S., (221 U.S. 361), the only question was stated, in the opinion, to be "whether as against the corporation the books were lawfully required in the administration of justice." In that case, officers of the corporation had been indicted for alleged violations of the statute in a misuse of the mails. InHale v. Henkel, (201 U.S. 43), the contumacious witness was examined with reference to an action pending between the United States and a corporation, of which he was an officer. Therefore, neither of these decisions
is applicable to the decision of the question here. I think that with the information furnished, and offered to be furnished, the committee unwarrantably insisted upon an examination of all the entries in the corporate books. Having the admissions and knowledge, which the evidence afforded it, whatever conclusion it might lead to, to permit the committee to proceed to the desired length would be unnecessary to the object of its inquiry and make offensively inquisitorial a proceeding not visitatorial in its nature, in the sense of being instituted for the inspection and control of the corporation itself. I think it was not "a proper case" for compelling the witness to bring the corporate books.
The five questions, which the witness refused to answer and which are now involved, are these: "(1) Mr. Barnes, you got your stock, (referring to the stock of the Lyon Company), in 1901, is not that true? (2) Did you pay anything for your stock in the Lyon Company? (3) Did you talk to Mr. Lyon about the consideration that you paid for your stock at the time that you saw him? (4) Did you pay anything for it? (5) Was it given to you?" The J.B. Lyon Company was a corporation, which had furnished the county of Albany with printing for a period of ten years, and Barnes was the owner of 750 out of an issue of 3,000 shares of capital stock. He testified to having been a "leader" of the Republican party, a party for some years dominant, politically, in Albany county; employing that term, as he said, to mean "a man whose advice is taken largely by the men of the political party, with whom he is associated." As stated by Justice KELLOGG, at the Special Term, "the investigation was being had as to whether a person in that position had acquired a substantial stockholding interest in a company, which furnished printing to a large amount to the political subdivision in which he was a figure of power, without any adequate compensation therefor, and whether this species of patronage had been given to the company in return
for an ownership, or interest." Granting that it was the fact and that the stock was given to Barnes, it was his private affair and, notwithstanding his position in the political world as a "leader" of his party in the county, I think that the committee exceeded the true scope of its jurisdiction, when seeking to elicit such evidence by their questions. He violated no law in receiving the stock as a gift, whatever the giver's motive, and his interest was of that magnitude, however acquired, as to warrant the presumption that it might influence him in doing all that his prominent position in the community enabled him to do to obtain for the company a share of the public business. The fact of his interest in a company, which was contracting and dealing profitably with the municipal departments and public officials, was made known and the committee could make such inference, and deduce such conclusions therefrom for its report, as its members might deem to be justified. The committee could not be aided, within the proper legislative province of its inquiry, by the knowledge of how Barnes had obtained his stock. He owned it and the time when he got it, or the consideration for it, were matters quite immaterial and beyond the jurisdiction of the committee to inquire into. Section 856 requires that the questions to be answered shall be "pertinent;" that is, they must be pertinent to an inquiry of the investigating committee into the necessity for remedial legislation. "No person can be punished for contumacy as a witness before either house unless his testimony is required in a matter into which the house has jurisdiction to inquire, and * * * neither of those bodies possesses the general power of making inquiry into the private affairs of the citizen." (People ex rel. McDonald v. Keeler,99 N.Y. 463, at p. 478.) This was observed with respect to the houses of Congress; but the remark is equally applicable to those of the state legislature. If Barnes had the right to acquire an interest in the Lyon Company, which may not well be disputed, and used his
political influence in aid of its business, the committee has the fact and is able to form its own conclusions as to the desirability of recommending any further remedial legislation, in aid of a moral, economical and efficient administration of government by the municipalities of the state. To find out whether Barnes paid for his stock, or not, would not aid the legislative body in that respect. With the morality of Barnes' act the legislature is not concerned; at most, its concern is in suggesting safeguards, if further ones be needed, against the improvident contracts of municipalities and the extravagance, or corrupt practices, of their officials.
Assuming that the various matters for investigation recited in the extremely broad resolution of the legislature are within the legitimate scope of a legislative inquiry, a question which is not discussed, I think that it was not "a proper case" for compelling the production of the books of the Journal Company, within the provisions of Code section 854, and that the questions which the witness was directed to answer were not "legal and pertinent," within the provisions of Code section 856.
For these reasons, I advise the affirmance of the order of the Appellate Division.