124 N.Y.S. 70 | N.Y. Sup. Ct. | 1910
Section 31 of the charter of the city of Buffalo provides that “ The chairman of any committee of either of the boards composing the common council, shall have power to issue subpoenas for witnesses to appear, or to produce books and papers before the committee, to administer oaths to witnesses, and to examine them and such books and papers. If any person duly subpoenaed as a witness should not appear, or, appearing, shall refuse to testify, or to produce such books and papers, the committee may report the failure of the witness to appear, or his refusal to testify, or to produce such books and papers to the board which appointed it. The said board may thereupon report such offending witness to any court of record or judge thereof, and said court or judge may make an order as to the future appearance of the witness, or the production of such books and papers, and punish any failure to comply therewith as a contempt of court.” The obvious meaning of this provision, which submits the matter of the conduct of the witness to a court of record, is that in effect the wit
It will thus be seen that the statute specially provides for notice -and an opportunity to defend, so that it is not open to the objection which was held to be fatal to section 856 of the Code of Civil Procedure in Matter of Grout, 105 App. Div. 98, and a witness called, under the provisions of section 31 of the charter of the city of Buffalo, is, therefore, placed in substantially the same position that is occupied by a witness who is called to testify in a court of record anywhere in the State of Hew York or before a referee. All of his constitutional rights are fully protected; he can be punished for contempt, in a matter not in the immediate presence of the court, only upon notice and an opportunity to defend, so that a witness duly subpoenaed to appear before a committee of the common council, and who refuses to answer, is simply turned over to a court of record, who makes a proper order in the premises; and then, if the witness disregards this order, he is punishable in the manner prescribed by the Judiciary Law, as above pointed out. He is in no other or different relation, because the matter is primarily before a committee of the common council, than he would be if the matter was immediately in the cognizance of the Supreme Court.
The committee on investigation of the board of aldermen of the city of Buffalo", having been duly authorized to make an investigation of certain matters going to the efficiency and integrity of the public service of that city, undertook, under the provisions of section 31 of the charter of that city, to secure the testimony of Frederick G. Mitchell, Knowlton Mixer, Francis F. Baker and William J. J. Kunzie. These men, acting under the advice of counsel, refused to testify before such committee. The matter was referred to the common council and by that body referred to one of the justices of the Supreme Court, and an order was duly issued directing these men to appear and testify. This order has, under advice of counsel, been appealed from; and one of the justices" of this court has granted a stay of proceedings pending such appeal. Wo now have under consideration a motion to set aside this stay. Having reached the conclusion that no substantial rights of the several persons involved in this appeal are affected by the order, and that it is their absolute and unqualified
It is not necessary at this time to consider what rights a witness might have if called upon to testify under an unconstitutional statute, for it is clear that the charter of the city of Buffalo, in so far as it relates to the matters here under consideration, is not open to any valid constitutional objection, for the reason that the witness is protected by the provisions of the Judiciary Law against any purely arbitrary conviction for contempt. It would be strange, however, if it should be held that a witness, having no interest in a controversy and no other rights than those of citizenship generally, could be allowed to question the constitutionality of the statute under which the action or proceeding was being maintained; for the rule is well settled that a person of full age and discretion can waive a statutory or even a constitutional provision in his own favor, affecting simply his property or alienable rights, and not involving considerations of public policy (Phyfe v. Elmer, 45 N. Y. 102, 104, and authorities there cited; Matter of N. Y., L. & W. R. R. Co., 98 N. Y. 447, 453); and, if a mere witness could raise the question of the constitutionality of an act, it would place the litigants at his mercy and would defeat their rights in many instances. The rule, as we find it, holds that it is only when some person attempts to resist the operation of the act and calls in the judicial power to pronounce it void as to him, his property or his rights, that the objection of unconstitutionality can be presented and sustained. People v. Brooklyn, F. & C. I. R. R. Co., 89 N. Y. 75, 93, and authorities there cited. However this may be, the case now before us does not violate any constitutional right; and the witnesses have no right of appeal from the order directing them to testify. If, upon the examination, improper questions should be asked, the witnesses are not obliged to answer them; they would have a right to incur the penalty of a contempt proceeding and to
Motion granted, without costs.