34 A.D. 577 | N.Y. App. Div. | 1898
Lead Opinion
• The relator, being in custody of the respondent, a marshal of the city of blew York, presented his petition to the Supreme Court, alleging that his imprisonment or restraint is by virtue of a certain paper writing, purporting to be a mandate signed by one Edward J. McCabe, commissioner and notary public, and that said McCabe, as such commissioner and notary, public, possesses no power or authority whatever under or by virtue of any -valid statute, or other law of the State of blew York, to issue a mandate in the nature of that annexed to the petition, and he prayed for a writ of habeas corpus to inquire into the cause of his imprisonment. By the return- of the marshal it appeared that the relator was arrested and is detained by virtue of a, writ' to him directed, a copy of which is annexed to the return. This writ is entitled
“ Given under my hand as commissioner and notary public -aforesaid, this 26th day of April, 1898.
“EDWARD J. MeCABE,
Commissioner a/nd Notary Public.”
There is annexed to said warrant a copy of a commission issued in the name of “The People of the-State of Colorado to Edward J. McCabe, Notary Public in and for the County and State of New York, greeting,” which recites that certain persons named are material witnesses in a certain cause now.pending in the District Court, of Arapahoe county, State of Colorado, wherein Clarence H. Venner- and others are plaintiffs, and the Denver Union Water Company and othei’s are defendants; that witnesses reside at New York, in the county and State of New York, and that their personal attendance cannot be procured at the trial óf said cause, and that the> depositions of said witnesses are desired-by the plaintiffs, pursuant, to an .order of court entered in said cause on the 18th day of February, 1898, and appointing said McCabe to examine the said witnesses, and authorizing and requiring him to cause said witnesses to-come before him at such time and place as he might designate and appoint, and diligently examine said witnesses on the oath and affirmation of said witnesses, and faithfully to talce- the depositions
The mandate itself does not, in terms, adjudge this relator guilty of a contempt, nor does the commissioner appear to have passed upon the materiality of the questions that the relator was required to answer. Indeed, it does not appear that he had power under the commission to determine that question, as he is required to take the depositions of the witnesses upon “all interrogatories and cross-interrogatories in respect to the questions in dispute.” Nor does it appear that the relator had notice of the application to the commissioner to issue this warrant, or had an opportunity to be heard before he was summarily arrested and deprived of his liberty. The com- • mission is directed to the commissioner, describing him as a notary
By section 915 of the Code, it is provided that a justice of the Supreme Court, or a county judge, may issue a subpoena to a witness commanding him to appear before the commissioner named in the commission. By section 919 of the Code, it is provided that “ the officer before whom a witness appears, in a case specified in ■this article, must take down his testimony in writing, and must certify and transmit it to the court, in which the action, suit or special proceeding is .pending, as the practice of that court requires ; ” and by section 920 of the Code it is provided that “ a person who fails to appear at the time and place specified in a subpoena, issued as prescribed in this article, and duly served upon him ; or to testify; or to subscribe to his deposition, when correctly taken down; is liable to the penalties which would be incurred in a like case if he was subpoenaed to attend the trial of an action in a Justice's Court; and, for that purpose, the officer before- whom he is required to appear ' possesses all the powers of a justice of the peace upon a trial.” By section 3001 of the Code it is provided that where a witness, attending before a justice in an -action, refuses to answer a pertinent
For this reason, I think the mandate under which the respondent acted in arresting the relator was absolutely void, and the order appealed from should be affirmed, with ten dollars costs and disbursements. •
Rumsey and McLaughlin, JJ., concurred; Babeett, J., dissented.
Concurrence Opinion
I concur in the conclusion reached by Mr. Justice Ingbaham in his opinion; and in view of the importance of the question to be
In addition to the cases cited above there may be cited upon that principle: Kielley v. Carson (4 Moore P. C. 63); Kilbourn v . Thompson (103 U. S. 168); Burnham v. Morrissey (14 Gray, 226). It may be said that this power has been given by tire Legislature to many boards and officers whose duties are not judicial. The question of the constitutionality of those statutes is not before us. In that regard it is only sufficient -to say, as was said by Judge Gbay in WhiteomVs case, that the constitutionality of the provision committing to masters in chancery and auditors the power over wit-' nesses to punish them for contempt may admit of more doubt.
The single question presented here is whether this particular power given to a person who is not a judicial officer, and who does not hold his position by virtue of any authority of this State, is within the power of the Legislature.
Ingraham and McLaughlin, JJ.., concurred.
Dissenting Opinion
The sole question here is whether section 920 of the Code of Civil Procedure is or is not unconstitutional. If it is, then there' is no constitutional provision of law to. compel a witness to testify in this State under a foreign commission. For it was held in the Matter of Searls (155 N. Y. 333) that a justice of the Supreme Court was without power to hear or determine an application to punish such a witness for refusing to answer questions put to him before a commissioner. The power to so punish, said the court in that case, rested exclusively with the commissioner under this section. The .point now raised is a narrow one. It is said that the witness is deprived' of due process of law, first, because the pertinency and propriety of the questions which he refused to answer were determined by the commissioner, and, second, because the commitment which followed his refusal was granted and signed by that officer. The claim is, .that the commissioner is not a judicial •officer, and that the witness could be constitutionally deprived of his liberty only by the act of some member of the judiciary of the State. While agreeing with the general view of this subject expressed by Brother Ingraham, I am unable to concur in his application of certain well-settled principles to the precise case under consideration. The point of divergence between us is. where the application of these principles begins. The provision of the Constitution was, in my judgment, primarily aimed at a direct attack ■upon the individual; that is,, at any act or proceeding the immediate purpose of which is to deprive him of life, liberty or property.
The cases of Langenberg v. Decker (131 Ind. 471) ; Whitcombs Case (120 Mass. 118) and In re Huron (58 Kans. 152) are examples of this view, although in one of them (the Indiana case) the court rested'its judgment upon a special provision of the Constitution of the State in terms excluding one department of the government from exercising any of the functions of another. Here, however, there is no proceeding against the individual; nothing whatever aiming at a deprivation of his life, liberty or property. The law of our State requires him to give certain information, to testify to facts
It is, however, contended that the law must limit its authorization to act as commissioner to one who is a member of the judiciary of the State. It will not suffice, in this view, should the commissioner
In the precise, case presented by this record it might be said that these considerations are in á measure academic, for it will be observed that there is here absolutely no question with regard to the witness’ rights as such. He did not decline to speak upon the ground that his answers would tend to criminate or degrade him. He simply refused — without any assigned reason — to speak at all. He raised no question whatever as to the propriety of the questions propounded, or as to their relevancy or competency. He had, indeed, nothing to do with their relevancy or competency. Hor, as we have seen, had the commissioner. That officer’s judgment was limited to-the pertinency and propriety of the questions ; that is, to determining whether they were entirely foreign to the litigation, or were within its general area. All else was left to the court from which the commission issued. In all else, too, the parties to the litigation were alone interested. Thus the commissioner here made no adjudication upon the witness’ rights.. He simply decided that the questions propounded were within the general scope of the litigation between the parties. That was not an adjudication for or against the witness. It was simply a prerequisite to commitment for refusal to answer a question which, as to him, was pertinent and proper. But even if the commissioner had adjudicated upon the witness’ rights, the conclusion would be the same. The only right which the witness has is his privilege with regard to answers tending to criminate or degrade him. If any question had arisen here on that head, and the commissioner had passed upon it adversely to the witness, his action, as already indicated,, could have been reviewed by certiorari, and the execution of his determination in the meantime stayed'. Such action on the commissioner’s'part would have been, as to the witness, in its nature judicial, just as is the action of legis-.
.By an act passed in 1887 (Chap. 213) the Governor is empowered to issue subpoenas in any matter pertaining to an application for clemency, and to compel witnesses to appear before him and answer. Section 5 of the act provides that the Governor shall possess all the powers in relation to such. provisions which are possessed by any court or judge. Is this section, too, unconstitutional, because the Governor is not called upon to go to the judiciary for the enforcement of his mandate? He has, it is said, jurisdiction over the subject-matter of pardons, but still the question remains, could the Legislature constitutionally confer, upon the executive the power to commit a witness ? The answer, it seems to me, must clearly be in the affirmative. The Governor could exercise no such power under the general provision of the Constitution with respect to pardons. The Legislature aloné could confer it. It is the statute law of the land which there requires the witness to attend and answer, and the
Acts like that under consideration are to be' found in many of our sister States. They proceed upon principles' of comity.- Sister States, quite as much as the courts of different countries, are mutually bound to lend each other aid to promote the ends of justice. ■ Efforts have frequently been made in • the courts of other States, under circumstances like the present, to secure the discharge of recalcitrant witnesses on habeas corpus. These efforts have invariably failed. In none of the cases, however, relating to commitments by notaries public has this constitutional question been discussed. (Ex parte McKee, 18 Mo. 599; Ex parte Priest, 76 id. 229; In re Abeles, 12 Kans. 451.) Until now no one, it seems, has ventured to present it. In Ex parte McKee it is said that “A notary public being, authorized to take depositions, and having the same powers for.that purpose as -are conferred on justices of the peace, may summon a witness before him, and may enforce his attendance if he fails to attend, and if he attends, and refuses to give evidence which' may lawfully be required to be given,- the notary may commit liirii to prison until he gives the evidence!
■ To sum the matter up, in the case at bar the commissioner was empowered, by the law of this State, to take the deposition-. So far that law was surely constitutional. It gave the commissioner jurisdiction over, the subject-matter, namely, the deposition, a jurisdic-' tion which he thus exercised under the direct confirmatory authority of this State. Possessing that jurisdiction thus directly conferred upon him by our .law, the -commitment was but ancillary thereto, an incident to its effective exercise. As in the Governor’s case,, the provision but gave effect to the constitutionally granted jurisdiction. Neither in the conferring of such jurisdiction, nor in the requirement to-answer pertinent and proper questions, nor in the power given to the commissioners to determine what are pertinent and j)roper questions; nor yet in the method provided for compel
The logical result of the opinion of the majority of the court is that no law for the taking of depositions in this State to be used in a sister State is constitutional which permits the due execution of the commission by one who is not a member of the judiciary of the State as defined in the Constitution. The practical effect of such a decision is to put an end to commissions and to relegate our State to letters rogatory. If, however, a law which authorizes the commissioner appointed by the courts of a sister State to execute such commission here, and as a part of his duty to pass upon the pertinency and propriety of the questions propounded to a witness thereunder, be constitutional (and I venture to suggest that its constitutionality has never before been questioned), then surely it is constitutional to provide for its enforcement in the manner here indicated. When the witness has been duly subpoenaed, has appeared before the commissioner and been sworn, and has refused without reason to answer, the mittimus at once runs against him, not, as we have seen, as an independent exercise of judicial power, but, in substance and effect, as the absolute mandate of the law. It follows immediately and directly upon his refusal to answer. Upon the statutory pre-requis ites being complied with the commissioner has no discretion to grant or withhold it. . He must thereupon exercise that particular power of a justice, of the peace upon a trial. Hor would even a judge — had the act required the mittimus to be signed by such an officer — have any such discretion. In either case, compliance with the plain statutory duty could be compelled by mandamus.
I am, therefore, of the opinion that the section of. the Code in question is constitutional, and that the order appealed from should be reversed and the prisoner remanded.
Order affirmed, with ten dollars costs and disbursements.