In re Hertle

105 N.Y.S. 765 | N.Y. App. Div. | 1907

Lead Opinion

McLaughlin, J.:

.The appellant is the president-of the borough of Manhattan in -the- city of. Mew York. . By reason of certain charges which wére ' published concerning the management-of his office,- lie requested the mayor of the city of Mew York to direct the commissioners, of .accounts to make an investigation of liis department.' The mayor did as requested, and the -examination was .entered upon and continued for some time, when the appellant was called as a witness, and after being duly sworn,' certain questions Were projiounded to him; by advice of counsel he declined to answer, substantially ■upon the ground that .the commissioners had no power to inquire — he holding, an elective office — in to-the policy of his administration that they had already made- a detailed examination, and for that purpose he had afforded them the fullest and freest access to all the ■ books, papers and-records in the office; that the facts'before them showed, as well as reports made, that the office was in. good condition, and that any further examination was unnecessary. The commissioners- of accounts thereupon applied ■ to the Special Term of this court, by an order- to show cause, for- a warrant committing him to jail for refusing to answer the questions''put to' him, and directing that he there remain until he submitted to answer such questions,- unless, in the meantime he were discharged according to law. The motion was granted, and. a warrant' of commitment issued, from which'lie appeals. ■ • ■

The examination of appellant was sought-under section 119'of the revised Greater Mew York charter, which he contends — through his counsel — if "construed to confer general powers on the commissioners of: accounts to conduct any examination which they deemed for the .best interest of the city, is unconstitutional, in that it is an attempt to confer judicial powers upon them.. This section of . the charter, or so much of it as is pertinent to the question under review, reads as follows: “ The mayor shall appoint and remove at pleasure two persons who shall be commissioners of accounts, one of whom shall be a certified public accountant. It shall be their duty once, in three months to make an examination of the receipts and disbursements in the offices of the comptroller and chamberlain, in connection with those of all the departments and officers making returns thereto and report to the mayor a detailed and classified statement of the financial condition of the city as shown by such examinations. They shall also make such special examinations of the accounts and methods of the departments and offices of the city * * * as the mayor may from time to time direct, and such other examinations as the said commissioners may deem for the best interests of the city, and report to the mayor and the board of aldermen the results thereof. For the purpose of ascertaining facts in connection with these examinations, they shall have full power to compel the attendance of witnesses, to administer oaths and to examine such persons as they may deem necessary.”

When the officé was first created (Laws of 1873, chap. 335, § 106) the duties of the commissioners, of whom' the president of the department of taxes and assessments was one, were to examine into the financial condition of the city and make and publish'k detailed statement thereof. They were also to make, from time to time, “ an examination of the expenses of the several departments and officers, and make such recommendations to the board of apportionment, and other officers, with reference thereto, and particularly with reference to salaries and duties, as they deem advisable.” This statute, as re-enacted by the Consolidation- Act (Laws of 1882, chap. 410, § 110), was amended so as to read substantially as above quoted, by chapter 516 of the Laws of 1884, which was re-enacted in the Greater New York charter (Laws of 1897, chap. 378,-§ 119, as amd. by Laws of 1901, chap. 466).

It will be observed that by the amendment of 1884 the two persons appointed by the mayor were the sole commissioners of accounts, the president of the department of taxes and assessments noTonger being included, and the statement made by the commissioners of the financial condition of the city was reported to the mayor instead of being published as before. It will also be observed that the power of the . commissioners was considerably ■ increased. Besides the'regular statements of the financial condition of the city, they were authorized to. make special'examinations at the may dr’s direction,.or of their own volition as they might “deem for the best interests of the city ” of the accounts and' methods of the various departments and report the results to the mayor. For ■ the purpose of making these examinations,-they were given power to 'examine witnesses, Which was much more extensive than was'necessary if the examination was designed simply for the purpose of ascertaining whether the accounts were properly kept: If this were the purpose it is difficult to imagine why so great a change was made by the . amendment and especially why ■ the ■ commissioners should have been clothed- with power “to compel the attendance of witnesses” and examine them under oath. Obviously this was not the purpose of the amendment. It was designed to' clothe -the commissioners with power to ascertain not only what the books of the office showed, but what they ought to show, by requiring witnesses to submit to an examination, to the end that the actual transactions of the office in all its details, as well- as every apt of the- officer himself and his subordinates and employees in connection therewith might be laid before the mayor. The fact that the office investigated is an elective one makes; no difference-because the statute applies just as much to an officer who is elected as it does to one who is appointed. The revised charter makes it the duty of the mayor to keep himself informed of the doings of the various departments of the city (§ 115, subd. 3), and that he. may properly discharge the duty thus imposed upon him he is authorized to direct the commissioners of accounts to make an examination, any time he sees fit. The examination thus, directed cannot be prevented by an assertion of the officer whose department is being investigated that' he holds the position by election • rather .than by .appointment or that the examination is unnecessary.

The act, in my opinion, is not unconstitutional, and this was the view of the late General Term. (Matter of McAdam, 7 N. Y. Supp. 454.) ISTor does it confer, judicial powers upon the commissioners! The examination made by them, as well as their report, settles nothing except that it furnishes the mayor with accurate information ■ as to the state, condition and workings Of the office. investigated. It is in no sense a judicial proceeding. They have no power to decide. (Matter of Armstrong v. Murphy, No. 2, 65 App. Div. 126.) In a great city like Mew York, working under a charter as complex as its charter is, .public policy requires that, every available means of examining the administration of the various departments and offices of the city government be utilized to their fullest extent and statutes having this object in view should be liberally construed. The fact that the Legislature-has seen tit to provide that an investigation may be made by a justice of the Supreme Court (Revised Greater N. Y. charter, § 1534), or by the board of aldermen (Id. § 54) is not of the slightest importance, because the Legislature had the ¡lower to provide .as it did in section 119 of the revised charter that an examination might be made by the commissioners of accounts at any time, at the request of the mayor. Meither of the examinations thus provided for is. exclusive, but each may be had separate and distinct from the other.

Mor does it lie with the appellant to say that by reason of the examination already made, a further examination is unnecessary., The" determination of that question rests solely with the commissioners. They may pursue their investigation so long as the examination conducted by them, or the questions propounded to witnesses shall be relevant and pertinent to the subject-matter of their inquiry. The questions propounded to the appellant were relevant and pertinent and were a proper subject of investigation.

If the foregoing views be correct,'then it follows that the order and warrant of. commitment should be affirmed, with ten dollars costs and disbursements.

Ingraham, Clarke and Houghtor, JJ., concurred; Lambert, J., dissented.

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Dissenting Opinion

Lambert, J. (dissenting) :

I am unable to concur in the decision about to be handed down by this court. The appellant, the president of the borough of, Manhattan, has been asked certain questions relating to the principles involved in and applied in the executive conduct of his office, by the commissioners of accounts of the city of New York. He has refused to answer those questions, under the advice of counsel, and the broad question presented upon this appeal from an order and warrant of commitment for contempt, .is whether, the commissioners of accounts have the inquisitorial powers which "they have attempted, to exercise in this case. If it is within the contemplation of the law that these commissioners should go into an inquiry as to the policy of the administrations of the various borough executives, then there can be no question of the power of the court to punish as for a contempt where ■ the witness refuses to answer questions which do not involve his own constitutional rights. The powers which these .commissioners claim must be found, if at all, in the provisions of section 119 of the revised Greater New York charter (Laws of 1901, chap. 466), which, under well-recognized rules, must be read and interpreted in connection with the provisions of the entire act, in order that .it may be made to harriionize with the letter and spirit of the act. If we. find that the commission was created for limited purposes; that the charter and the general policy of the law has amply provided for such general investigations as is here undertaken; that the president of the borough of Manhattan has no duties coming within the limited' purview of the ■ commission, then we may fairly conclude that the Legislature did not intend to vest this inquisitorial power in the commissioners of accounts, and that they have exceeded their powers in attempting tó make an inquiry into matters which do not concern them in their official capacity. "W ords, absolute of .themselves, and language the most broad and comprehensive, may be qualified and restricted by reference to other parts of the same statute in which they are. used, and to the circumstances and facts existing at the time, and to which they relate, or are applied. A literal interpretation of words in most common use, and having a well-defined meaning as ordinarily used, would not unfrequéntly defeat rather than accomplish the intent of the party using them. If, in reading a statute in connection with other statutes passed at, or about "the same time, a doubt exists as to the force and effect tlie Legislature intended to give to particular terms, that is, as to the meaning it was intended they should bear and have in the connection in which they are used, it is competent to refer to the circum-

stances under which, and. the purposes for which a statute is passed, to ascertain the intent of the Legislature. The ground and cause of the making of a statute explains the intent. (Smith v. People, 47 N. Y. 330, 337, and authority there cited; Riggs v. Palmer, 115 id. 506.)

The commissioners of accounts were first created under the provisions of section 106 of chapter 335 of the Laws of 1873, at a time when the financial affairs of the city of New Tork were under immediate consideration, and it was therein provided that the mayor should from time to time “ appoint and remove at jileasure two jjersons, who, together with the president of the department of taxes and assessments, shall be commissioners of accounts.” It was made their duty, once in three months,'and oftener if they deemed it proper, to examine all vouchers and accounts in the offices of the comptroller and chamberlain, and to make and publish, in the City Record, a detailed statement of the financial condition of the city, showing the amount of its floating and funded debt, the amount received and expended since the last preceding report, with a classification of the sources of revenue and expenditure, and such other information as they should deem proper. It was also provided that they should from time to time make an examination of the expenses of the several departments and make such recommendations to the board of apportionment and other officers with, reference thereto, and particularly with reference to salaries and duties, as they should deem ad visable. It is plain from a reading of the provisions of this act that the pürpose of the legislation was to afford to the public and to the officers of the city an official and accurate statement of the financial affairs of the city; that it was the purpose of- the act to spread before the public the details of the financial transactions of the city, this act being in harmony with the general legislation for the protection of taxpayers, originating in 1872. (See Laws of 1872, chap. 161; Ayers v. Lawrence, 59 N. Y. 192, 195 et seg; Thomson Taxpayers’ Actions, 24-26.) It grew out of the history of munich pal corruption which was brought to the forefront in the early seventies, and its entire purpose was to afford a means of bringing to bear .the corrective influence of publicity in the affairs of municipalities. (See Ayers v. Lawrence, supra.) The provisions of the charter of 1873 were retained in the Consolidation Act (Laws of 1882, chap. 410, § 110), and in 1884, chapter 516 amended the .provisions by adding that “ They shall also make such special examinations of the accounts and methods of the departments and offices, of the city and county government as the mayor may.from time to time direct,- and report to the mayor the results thereof; and such other examinations as the said commissioners may deem for the best interests of the city and county:- For the purpose of ascertaining facts in connection with these examinations they'shall have full power ■ to compel the attendance of - witnesses, to administer oaths, and to examine such persons a-s they may deem necessary.”

This was the state of legislation upon this question at the time of ■ the' adoption, of the Greater New York charter.. (See Laws of 1897, chap. 378, § 119.) At that time there were no boroughs, no borough presidents; the system of government was comparatively, simple, the executive power being lodged in a single mayor, and the power to make “ such- special examinations .of the accounts. and methods of- the departments and offices of the city and county government as the mayor may from time to time direct,” related to' the departments and offices as they then existed, and to such as had “ accounts and methods,” not. “ accounts or methods.” . The commissioners of accounts had no powers of. investigation independent of accounts; where there were accounts they were author-' ized to look into the accounts and methods,” but these methods were such as related properly to the accounts and the manner and form of their records and not. to the motives or purposes which executive .officers might have in view in the discharge of duties delegated to them by law. Keeping this situation in view, we should look at the provisions of section 119 of the revised Greater New York charter for its proper interpretation under which this inquisitorial power" is attempted,to be exercised against the appellant,, tlie president of one of the principal bproughs of the city. ■ The section is as follows:-“The mayor shall appoint and remove at pleasure two persons who shall be commissioners of accounts, one of whom shall be a certified public accountant. It shall be their duty, once in three months, to make an examination of the receipts and disbursements, in the offices of the comptroller and chamberlain, in connection with those of all the departments and officers braking returns thereto, and report to the mayor a detailed and classified statement of the financial condition of the city as shown by such examinations. They shall also make such special examinations of the accounts and methods of the departments and offices of the city and of the counties of New York, Richmond, Queens and Kings, as the mayor may from-time to time direct, and such other examinations .as the said commissioners may deem for the best interests of the city, and report to the mayor and the board of aldermen the results thereof. For the purpose of ascertaining facts in Connection with . these examinations they shall have full power to compel the attendance of witnesses, to administer oaths and to examine such persons as they may deem, necessary.”.

Obviously there is no enlargement of the spirit of this provision over the law as it existed before the enactment of the new charter. The changes in phraseology are merely to conform it to the enlarged territory, and it is to be understood exactly .'as it would have been understood if we were construing the charter as it existed prior to the creation of the greater city in 1897. It was the departments and offices of the city; the administrative departments and those which had to do with accounts that were to be within the jurisdiction of these commissioners, and the special nature of the commission, as one of limited scojDe, is to be gathered from the fact that one of the two is required to be .a “ certified public accountant.” Under the Greater Mew York charters, of 1897 and 1901 there were seyeral boroughs, and it was, provided that each of these boroughs should have a president, and this president was invested with certain executive functions, hut in no instance is he required to report to the comptroller or chamberlain, • nor is any one given any supervisory powers over him in the discharge of his particular duties, the only suggestion of anything of the kind being found in the provision of section 383 of the revised charter that he “ shall make an annual report of the business and transactions of his borough to‘ the mayor.” There' is no power of removal vested in the mayor; the borough presidents may be removed only in a like manner with the mayor, and it is clear that in the. provisions relating to the boroughs, as such, there is no room for the interference of the commissioners of accounts, who are confined in their duties to the examination of “ the accounts and methods of the departments and offices of the city and of the. counties,” etc., and the administrative departments which are here referred to are 'specially enumerated in section 96 of the revised charter. These do not include the office of borough presidént. -Indeed, the whole theory of-the charter is that the boroughs are in a sense indepeñdént municipalities. It is true, of course, that the powers are limited,' but they are, in so far as they relate to borough matters, independent of the executive control of the mayor, and as there is no provision in the charter by which the mayor can either remove or control the-conduct of a borough president, it is hardly a fair construction of the provisions of section 119 •of the revised charter to say that.it contemplates, as was attempted by the commissioners, theinvestigation of the methods employed by the president of .the borough of Manhattan in dealing with the matters specially confided to his care by the letter and the spirit of the charter.

Chapter 9 of the revised charter is sub-lieaded- “ Borough Officers,” and deals with the election, qualifications, terms, etc., of such*officers, treating them as entirely distinct from the city officers, and by the' ' ju’ovisions of section 3.83 the president is vested with certain distinct duties, none of which requires any reports to the financial officers of the city, and as all of the questions which the commissioners of accounts, sought to have answered related to matters which did not relate to “accounts and methods” in any of the departments or offices of the city, but to matters of administration which hav'e, by the terms of the charter, been delegated to the boroughs and the officers of the. boroughs, and which have nothing to •do with any “accounts and .methods,” I am unable to understand how it can be held that the appellant is in contempt in refusing to answer these questions. The questions as asked by these commissioners, ' going into the reasons which prompted the acts of the borough president in the discharge of his duties, are not in my judgment within their delegated powers, and hence he was under no obligations to answer them. The commissioners were encroaching upon his rights.

This view of- the provisions of section 119' becomes the more obvious when we remember that the revised charter has, by the provisions of section 1534( made an elaborate plan for conducting a summary examination into the affairs of the city under the supervision óf the Supreme Court, upon the motion of various officers or citizen taxpayers, in which any “ member of the board of aldermen, commissioner, head of department, chief of bureau, deputy thereof or clerk therein, or other officer of the corporation or person,” may be examined. And again,, by the provisions of section 54, the board of aldermen are given large powers of investigation, so that there is no occasion for extending the powers of the commissioners of accounts beyond express delegated functions of investigating accounts and methods in relation to such accounts. In this connection the language of Washington in his farewell address is perti-.. nent, and is true in an equal degree of municipal governments as well as in the affairs' of nations. “It is important likewise,” says this great man, “ that the' habits of thinking, in a free country, should inspire caution in those intrusted with its administration, to confine themselves within their resjmetive constitutional spheres,avoiding, in the exercise of the 'powers of one department, to encroach upon another. The spirit of encroachment tends to consolidate the powers of all the departments in one, and thus to create, whatever the form of government, a real despotism.” Here there is clearly no reason for encouraging “ that love of power and proneness to abuse it which predominates in the human heart,” and the appellant, instead of being punished for a contempt, should be commended for his courageous refusal to submit to" usurpation on the part of these commissioners, whose duties are limited to the consideration of accounts and methods connected with such accounts, and cannot be extended rightfully to matters which the people have intrusted .to their elective officers, and for. which they hold the remedy in their own hands if there is an abuse of the powers.

The order appealed from should be reversed.

Order affirmed, with ten dollars costs and disbursements.