67 N.Y.S. 492 | N.Y. App. Div. | 1900
Lead Opinion
This motion to dismiss is made upon the ground that the order is not appealable to this court, and Matter of Attorney-General (155 N. Y. 441) is cited by respondents in support of the motion. That case held that a similar order to this was not a finál order in a special proceeding, and, therefore, not appealable to the Court of Appeals. That in fact it was not a special proceeding in which the order was made. The Court of Appeals had previously held that no order in an action, whether final or otherwise, was appealable, as a matter of right, to the Court of Appeals ( Van Arsdale v. King, 155 N. Y. 325); hence the appeal to that court was dismissed. Had the appeal been duly certified to that, court the result might have been different. The only appeal from an order, unless duly certified, which that court can entertain according to its own construction of the law, is an appeal from a final order in a special proceeding. Haight, J., in the case cited (155 N. Y. 444), says: “ The distinguishing between orders in actions and special proceedings may at times be attended with some difficulties. An order for the examination of a
I think it may be a fair conclusion from this reasoning that the order was an order in an action as the Code contemplates. While-it may not be apparent how the. order or the testimony to be taken under it ever can become “ a part of the proceedings in the action as soon as the action should be brought,” since the law (Laws of 1899, chap. 690) provides that the testimony taken shall, be filed, with the-county clerk, but does not provide that in any case it can be used in the action, still, if it is to serve no useful purpose in the-intended action, and. the only purpose of the provision is the gratification of curiosity on the part of the public or the furnishing of food for-scandal, or evidence for some criminal prosecution, that, would go far in condemnation of the law creating this new procedure. But assuming that this authorized procedure was intended, to serve some lawful and useful purpose,' such, for instance, .as the-furnishing of .facts and information in aid of the framing, of a complaint, I think it must be regarded as a step in an action, and is as-clearly an order in an action as the order authorized by section 873 of the Code of Civil Procedure directing the taking of the testimony of a party before an action is commenced. What disposition, is to be made of the testimony is not to be taken as controlling in determining, whether or not it is an order in an action.
The Code of Civil Procedure classifies all civil remedies under-
But I think this question as to whether this order is appealable to this court was decided by this court in Matter of Attorney-General (22 App. Div. 285). That matter arose under provision f a law similar to the one here considered and must bfc ment of this court until a reversal is had on t,.„ e'iaCu quen„„~ determined. It is true that this court determined then that' the order was made in a special proceeding, and the Court of Appeals for the purpose of determining whether it was appealable to the Court of Appeals held that it was not an order made in a special proceeding, but the Court of Appeals did not determine that it was not an order made in an action. The right to appeal to the Appellate Division from an order made in a special proceeding is not greater or based upon other grounds than the right to appeal from an order made in an action. An appeal from an order made in a special proceeding must be “ from an order affecting a substantial right” (Code Civ. Proc. § 1356), and an appeal from an order in an action is given “ where it affects a substantial right.” (Id. § 1347, subd. 4.) This court in entertaining that appeal decided that the order did affect a substantial right. And if I am right in the conclusion that this is an order in an action, there is ■ no question affecting a substantial right undetermined, and there is no occasion to discuss the matter on that ground.
The great abuses to which the inquisitorial powers delegated by laws of this character might lead show a necessity for some judicial supervision by way of appeal. I quote the language of Landon, J., in his dissenting opinion (Matter of Attorney-General, 22 App. Div. 298) as fitly expressing the need of the power to review such orders: “ It is said that we cannot review this order. If that is true their this proceeding and possibly the act itself — important as it is — are apparently strangled upon the threshold.” But the right to review when the order denies the application can be no greater than when the order grants it. The appellant here is to be made a party to the action to be brought by the Attorney-General, and tho other party is to be “ The People ” who apply for the order. ____o W
The motion to dismiss the appeal must be denied, with ten dollars costs and disbursements.
All concurred, except Parker, P. J., and Merwib, J., dissenting.
Chapter 690 of the Laws of 1899 is chapter 383 of the Laws of 1897, modified only as to inode of procédure. The first three sections of both laws are the same.
Section 1 declares in substance that contracts which create monopolies in articles of common use are illegal and against public policy.
Section 2 makes the entering into such contracts punishable by fine and imprisonment.-
Section 3 provides that the. Attorney-General may bring civil actions to “restrain and prevent” the making of such contracts. Concerning these provisions no one raises a question.
The sections following these three, in both acts, relate to a method of procedure by the Attorney-General touching the civil actions which section 3 authorizes him to bring, and it is respecting these and the action of the Attorney-G-eneral under them that the controversy on this appeal arises. As before said, the law of 1899 changed the law of 1897 only in respect to this method of procedure. This fact may be important in seeking the true intent of the Legislature as declared in the law now in force — the law of 1899. The changes especially noticeable are these: The law of 1897 (§ 4) provided that “ article one of title three of chapter nine of the Code of Civil Procedure relating to the application for an order for the examination
Under the law of 1897 (§ -5) the application authorized to be made to a justice of this court was for an order directing answer to relevant and material questions as may be put to them” (witnesses). The application and order now authorized by the law of 1899 (§ 4) is that they “ answer such questions as may be put to them or to any of them.”
Under the act of 1897 (§ 5) it is provided that “ if it appears to the satisfaction of the Justice of the Supreme Court, to whom the application for the order is made, that such an order is necessary, then such order shall be granted.” The law of 1899 (§ 4) reads: “ And it shall be the duty of the Justice of the Supreme Court, to whom such application for the order is made, to grant such application.” And further provides, “ The application for such order made by the Attorney-General may simply show, upon his information and belief, that the testimony of such person or persons is material and necessary; ” and further provides that “ The order shall be granted by the Justice of the Supreme Court to whom the application has been made with such preliminary injunction or stay as may appear to such Justice to be proper and expedient.”
Giving a literal construction to the wording of this law it will be apparent that the only occasion where it is permitted that the justice may exercise any judicial discretion is in granting a preliminary injunction or stay, “ as may appear to such Justice to be proper and expedient.” Although the Legislature has taken such pains to make here its intent apparent, 1 cannot believe it really intended to make this feature of the law ineffectual by the coercion of judicial discretion, or making the justice to whom the application is presented simply a scrivener to subscribe his name. If the function is a judicial one the Legislature could not pise it or decide for the court. If it does not call for the exercise of a judicial function the Legislature could not impose the duty, nor could the justice discharge it.
Section 873 of the Code of Civil Procedure provides that the justice “ must ” grant the order there mentioned, but in Jenkins v. Putnam, (106 N. Y. 272) Earl, J., said : “ While it is said in sec
This reasoning, and the need of relieving this part of the law from the charge of being repugnant to the Constitution,'requires that the apparently mandatory language of this law, “ And it shall be the duty of the Justice *. * * to grant such application,” should be construed to mean that it is the duty of the justice to grant the order in' case the application or petition, read as a- whole, discloses that the examination of the witnesses is necessary for the purposes named in the act.
In other words, the petition or application, in the language of the act itself, must “ show * * * that the testimony of such person or persons is material and necessary,” or the order must be refused. So interpreted, the act in this respect affords a reasonable freedom in the exercise of judicial discretion on the part of the justice and there is no coercion. What is necessary for the petition to set forth in order to “ show ” the necessity for the testimony of the witnesses, is not affected by article 1, title- 3, chapter 9 of the Code of Civil Procedure, nor does the statement in this act that such provisions shall not apply in any way affect it. Obviously, in order to move the judgment of the justice'to whom the application is made to grant the order, such matters and facts must be presented as by the ordinary rules will, when weighed in the judicial scales, move to a judicial conclusion that the “ testimony of such person or'persons is material and necessary.” So it is apparent that 'whatever safeguards may have been removed by eliminating the provisions of article 1, title 3, chapter 9 of the Code, the one material and essential safeguard, the judicial discretion, to be moved by the facts stated in the petition, still remains, and this should be sufficient for the protection of the rights of all parties and persons to he affected by the .order.
In reading the application made to the justice in this case it will be seen that these prominent facts are stated, viz., that two foreign corporations, owning property in this State and property in the
The application for this order was made in May, 1900, more than a year after all the alleged agreements were consummated. It may not be here necessary to refer to the laws of this State whereby one corporation may lawfully own and vote the stock of any other corporation doing a similar business, and we may assume that the laws of Maine and of New Jersey also authorize such ownership, for there is nothing in the petition to the contrary. Neither is it necessary in the disposition of this appeal to discuss the question as to when, if ever, under the existing law, it will be possible to prevent the exercise of this lawful right to own and vote the stock of other corporations in the same line of business even though the indirect result of such ownership and management tends to place a commodity or article in common use largely or entirely in the hands of a single corporate body, for I do not think that question is properly here for determination, nor was it before the justice to whom application for this order was made. We have to do. here only with the binding provisions of the law of 1899 touching the procedure to get testimony of witnesses, bearing in mind that the petition states that all the obnoxious agreements have been made already, and the title to the property is fixed in the American Ice Company. Everything has been consummated. We must conclude, from what is set forth in the
And I think it may be conceded for the purpose of disposing of this appeal, and the real question which lies at the threshold, that the consummated agreements stated in the petition are repugnant to the provisions of the law of 1899 touching contracts creating or tending to create monopolies in articles of common use. The question here relates to the remedy. If the American Ice Company, or any other person or corporation has unlawfully offended against these provisions, the offense is criminal, and the law provides a penalty, and so the act declares. With that we have nothing to do. But what remedy by a civil action is possible in such a state of facts ? The only remedy of this nature which the law contemplates is purely preventive; preventive of the formation and consummation of such agreements. The act (§ 3) authorizes only an action “ to restrain and prevent ”. the “ making or consummation of any contract,” etc. What under the facts stated in the petition can be restrained ?■ The agreements here set forth are not like the. continuing freight agreements of railroads which the Interstate Commerce Act empowered the courts to put an end to by injunction. There is nothing here which can be put an end to, for there is. no continuing contract, nothing but a consummated contract ending practically in ownership. Would an injunction against a sale by these owners of the ice they own, if such an injunction were lawful, give relief ? The court cannot be permitted to fix the price at which sales may be made nor can it confiscate the property and distribute it. I fail to see how any civil action to prevent or restrain would here lie or could be maintained for any purpose whatever in aid of this law. The
The substantial provisions of the law are wholesome and for the public good, and the principle of construction urged by the learned Attorney-General, that the method of procedure prescribed in aid of the enforcement of laws of that nature should be liberal, commands approval. So also does the language of Mr. Justice Harlan in the Brimson case (Interstate Commerce Commission v. Brimson, 154 U. S. 479): “We said in Boyd v. United States (116 U. S. 616, 630) — and it cannot be too often repeated—that the principles that embody the essence of constitutional liberty and security forbid all invasions on the part of the government and its employes of the sanctity of a man’s home and the privacies of his life.” As said by Mr. Justice Field in In re Pacific Railway Commission (32 Fed. Rep. 241, 250): “ Of all the rights of the citizen, few are of greater importance or more essential to his peace and happiness than the right of personal security, and that involves, not merely protection of his person from assaiilt, but exemption of his private affairs, books and papers from the inspection and scrutiny of others. Without the enjoyment of this right, all other rights would lose half their value.” Liberal construction of the feature of this law which authorizes an ex parte inquisition into the affairs of this private corporation, or into the private affairs of an individual — the details of which are to be filed with the county clerk and become public property — does
If I am right in the conclusion that the petition in this case shows upon its face that the testimony of witnesses and inspection of books mentioned were not necessary for the prosecution of the civil action authorized by the law, that no such civil action could be maintained to “ restrain and prevent ” under the facts disclosed, it will be unnecessary to consider the other features of this, law which appellant urges in condemnation of the law as unconstitutional. That those questions may be properly raised on this appeal seems to be supported-,by ample authority. (Yamato Trading Co. v. Brown, 27 Hun, 248; Kinney v. Roberts, 26 id. 166; Skinner v. Steele, 88 id. 307.) These cases hold that a witness or person who is to be made a party need not wait until a question is put to him and then claim his privilege Uot to answer, when it is apparent that all the questions and answers sought for in the application would tend to criminate.
The order should be reversed, with ten dollars costs and disbursements on this appeal, .and the motion to dismiss in Special Term. granted, with ten dollars costs.
By the Constitution, both State (Art. 1, § 6) and Federal (5th amendt.), is given to every citizen the right- of exemption from self-incrimination. This provision in the Federal Constitution received construction from the Supreme Court of the United States in Counselman v. Hitchcock (142 U. S. 547). It was there held that “ The meaning of the constitutional provision is not merely that a person shall not be compelled to be a witness against himself in a criminal prosecution against himself, but its object is to insure that a person shall not be compelled, when acting as a witness in any investigation, to give testimony which may tend to show that he himself has committed a crime.” This same construction.
The statute requiring the witness to testify assumes to grant immunity for all offenses on account of any transaction concerning which he may testify. This provision, comprehensive and probably ■ effective to protect a witness from prosecutions for offenses against the State law, does not assume to, nor could it, provide immunity for offenses committed under the statute of any other State or of the United States. If, therefore, these witnesses, by their answers, would subject themselves to prosecution for crimes under the Federal law, they are entitled to the protection both of the State and Federal Constitutions.
In 1890 an act was passed by Congress and received the executive approval, entitled “ An Act to protect Trade and Commerce against unlawful restraints and monopolies ” (26 U. S. Stat. at Large, 209, chap. 647). By that act it was provided that
“ Sec. 1. Every contract, combination in the form of trust or otherwise, or conspiracy in restraint of trade or commerce, among the several states or with foreign nations, is hereby declared to be illegal. Every person who shall make any such contract or engage in any snch combination or conspiracy shall be deemed guilty of a misdemeanor, and, on conviction thereof, shall be punished by fine not exceeding five thousand dollars, or by imprisonment not exceeding one year, or by both said punishments, in the discretion of the Court.
“ Sec. 2. Every person who shall monopolize or attempt to monopolize or combine or conspire with any other person or persons to monopolize any part of the trade or commerce among the several states or with foreign nations, shall be deemed guilty of a misdemeanor, and, on conviction thereof, shall be punished by fine not exceeding five thousand dollars, or by imprisonment not exceeding one year, or by both said punishments, in the discretion of the Court.”
This act, assuming to regulate interstate trade, while differing somewhat in phraseology from our State statute, is nevertheless aimed at the same evil' and is practically similar thereto.
The contract here challenged contemplates the sale in this State
In Skinner v. Steele (88 Hun, 311) Martin, J., in writing for a-unanimous court in discussing the right to an examination before trial, says: “ The rule is that if it appears that the only material evidence that can be given by the party sought to be examined will tend to show that he is guilty of a crime or subject him to a penalty or forfeiture, the order should not be granted; but if it appears that any testimony material to the case may be given, not necessarily having that tendency, the examination may be had and the party left to assert his privilege upon the examination.” The sole basis of the proposed action of the Attorney-General is the alleged illegality of the contract. The fact of its illegality is the sole fact to be proven in the action. The witness sought to be examined is the president of the corporation, presumptively a party to the making, and engaged with the corporation and in its' behalf in executing the contract claimed to be criminal. I can conceive of no possible inquiry material to the controversy which would not call for an answer which would tend to convict the witness of a crime under the Federal statute.
If these views oe correct this examination was not properly ordered.
And this question can, I' think, be raised by the witness and at this time. The witness here asserts his' privilege and demands the constitutional protection. There is yet no defendant in the action who can protect him. His right to this relief seems to me clear; (See opinion of Herrick, J., in Matter of Attorney-General, 22 App. Div. 291.)
It becomes unnecessary, then, to discuss the legality or illegality of the contract alleged in the petition. Such a discussion would be
Kellogg, J., concurred.
Concurrence Opinion
I concur in the reversal of the order appealed from in this proceeding on the ground that the duty imposed upon the justices of the Supreme Court by the statute in question is not a judicial one.
The justice is required to act, not in any judicial proceeding, but as a mere ministerial officer in aid of the Attorney-General, and in a matter that is neither an action nor a special proceeding, and in which both the provisions of the statute and the history of its enactment indicate an intent on the part of the Legislature to deprive him of all judicial power, and of any information from which he might exercise judicial discretion.
Such a duty, in the performance of which the justice is not given any judicial power, is not one that the Legislature may lawfully impose upon him, and his act under it is not to be sustained.
So also the referee is not appointed in a judicial proceeding, and is not, arid cannot, act as a judicial officer.
Imprisonment by such a tribunal, for not appearing or answering before it, deprives a witness of his liberty without due process of law, and a witness so ordered to appear and answer may at once raise the question whether such an order ought to be sustained.
Merwin and Edwards, JJ., dissented from result.
In these cases the court decides the following propositions :
First. That an appeal lies from the order made and entered in Albany county July 3, 1900, refusing to vacate the order made on the 28th day of May, 1900, appointing the referee and directing the appellant to appear before him.
Second. That the order so appealed from is reversed, with ten dollars costs and disbursements, and motion to set aside order appointing referee is granted, with ten dollars costs.
Third. The order made at Special Term and entered July 3,, 1900, setting aside the writs of prohibition, are and each of them is reversed, with ten dollars costs and disbursements. This decision
Fow/rth. The application to this court for writs of prohibition in •eacl} of the cases is denied, with ten dollars costs and disbursements in each case. All concurred.
Orders shall be entered in each case in accordance with this memorandum.