17 N.Y.S. 938 | New York County Courts | 1892
By resolution of the common council of the city of Kingston adopted January 15, 1892, it was “resolved, that two members of the common council be added to the committee to investigate the city treas-Q urer’s accounts in the place of Aldermen Murray and Dolson, whose terms of office have expired, and that said committee have full power to send for persons and papers. The chair appointed, in addition to the mayor, Alderman Brinnier and the city clerk, the other members being Aldermen Dederick and Tubby.” Claiming to act under the provisions of the city charter, (Laws 1872, c. 150, § 32,) this committee issued a summons to the relator, bv which he was summoned “to attend before the committee at the mayor’s office in the city-hall on Wednesday, January 27, 1892, at 3 o’clock P. M., there to give such information touching the subject of inquiry as might be in his possession;” and he was further directed to “bring with him before said committee all bank-books had and held by him as city treasurer of the city of Kingston, and containing the record of transactions between such officer and the First national Bank of Bondout, relating to the general fund account, bond and coupon account, and all other accounts, and such other documents in his custody as might be required in the investigation of the said subject.” In obedience to the command of the summons, the relator appeared at the time and place therein specified, and was swmrn and examined as a witness by the members of the committee, but refused to produce any books or documents. Thereupon Alderman Dederick, a member of the committee, presented an affidavit to the recorder of the city of Kingston, setting forth the refusal of the relator to produce such books, and an order of attachment was issued by the recorder directed to the sheriff, commanding him “to attach the relator, and forthwith bring him before the recorder at his office in the city-hall, to answer for his refusal to obey the said summons, and bring the said books, and attend and appear and testify as thereby required. The relator was arrested by the sheriff, and taken before the recorder; who thereupon adjudged that he had failed and refused to attend and appear as required by the summons, and who forthwith, by an order under his hand, committed the body of the relator to the custody of the sheriff, commanding the sheriff that
Upon a careful examination of the statute and the authorities, I am rather of the opinion that the warrant of the recorder, committing the relator to the custody of the sheriff, is fatally defective, and that, under the provisions of the habeas corpus act, the relator would be entitled to his discharge upon that ground alone. Code Civil Proc. § 2033, subd. 3. However correct these views may be, it was stated on the argument by counsel for the relator, and by the corporation counsel, that what was most desired was the opinion of the court as to the power of the recorder to commit the relator for a refusal to produce books and papers. It was suggested by the court, in order to avoid circumlocution of proceeding, that the relator waive the point as to the claimed illegality of the organization of the committee, and the defective character of the recorder’s warrant, and that a stipulation of waiver be entered upon the record, in order that the more important matter involved could be passed upon as the only point of the case. This, however, was not assented to. The proceeding is a special one, under the provisions of section 32 of the charter of the city, which is as follows: “The common council, or any committee thereof, shall have power to issue a summons to any person to appear and testify before them, in respect to any matter pending before or referred to them. Such summons may be served at any place within the county of Ulster, in the same manner as subpoenas for witnesses in criminal cases. Any person who shall refuse to attend, in obedience to any such summons, may be arrested by an order of attachment, which may be issued by the mayor or recorder upon proof of the service of such summons and of such refusal, and be committed to the county jail or other proper place of detention until he shall appear or testify as required. Such witness so refusing to attend may also be fined or imprisoned for disobedience of such summons, by the mayor or recorder, in the manner and to the same extent as witnesses refusing to attend in obedience to a subpoena duly issued by a justice of the peace. Whenever any person summoned as a witness before said common council, or any committee thereof, shall refuse to be sworn or affirmed, or to answer any proper or pertinent question, the mayor or recorder, on complaint made, may forthwith commit such person to the county jail, or other proper place of detention, for a period not exceeding 20 days, or until he shall be sworn or affirmed or answer such questions. Such commitment shall be made by a warrant directed to the sheriff of the county, or other officer having such place of detention in charge, and shall recite the cause of such commitment, and such officer shall keep such person in close confinement, as directed thereby.”
It is claimed by the learned corporation counsel that although the city charter does not, in express language, confer upon the common council, or its committee, the right to compel the production of books and papers, still
It is admitted by the corporation counsel, and by counsel for the relator, that the language of the charter, “such summons may be served at any place within the county of Ulster in the same manner as subpoenas for witnesses in criminal cases,” means simply that such summons may be served without the payment to the witness summoned of the statutory per diem allowance, and the sum for mileage directed to be paid to witnesses in civil cases. It is claimed, however, by counsel for the relator, that, as the city charter does not, in express terms, provide for the issuing of a summons commanding the witness to produce books and papers, and does not, in express language, provide that, if a witness fail to produce books or papers, he may be committed to the county jail, that that power is not conferred by statute, and that, as the provisions of the charter providing for the punishment of a recalcitrant witness is penal in its nature, rt must be literally and strictly construed. It will be seen, by an examination of the statute, that in each case where the power to punish for contempt for a failure to comply with the provisions of. a subpoena duces tecum, commanding the production of books and papers, is given, the statute itself specifically and distinctly directs that a failure to produce such books and papers is a contempt. This distinct provision, it is admitted, is absent from the city charter. Whether it be a casus omissus, or a deliberate withholding of power by the legislature, is, for the purpose of this inquiry, immaterial. Thus, under the provisions of the Code of Civil Procedure and the Code of Criminal Procedure, express provision is made by stat-. ute for the production of books and papers, and for the punishment o.f a witness who fails to produce a book or paper when properly required so to do, The penalty for disobedience in civil cases is prescribed by section 853 of the Code of Civil Procedure, which is as follows: “A person so subpoenaed, who
In Re Bradner, 87 N. Y. 171, it was unanimously held by the court of appeals that the board of supervisors of the county of Livingston had no jurisdiction to appoint a committee of its members for the purpose of an investigation relative to the railroad commissioners of one of the towns in that county, and that they had no authority to require the attendance of a witness before the committee upon such an investigation, and that, therefore, a subpoena requiring such attendance conveyed no mandate which imposed compliance, and disobedience thereto was not, within the meaning of the law, a contempt. In that case the board of supervisors appointed a committee to make an investigation, and a subpoena signed by the chairman of the committee was issued requiring the defendants to appear before the committee at a time and place named, and to bring certain documents in their control as might be required in the investigation of the subject. The subpoena was not obeyed, and the recalcitrant witness was committed to the custody of the sheriff of the county. He sued out a Writ of habeas corpus, and on the return of the writ the judge ordered it to be vacated and quashed, and imposed as a condition that no action for false imprisonment on account of the imprisonment of the relator should be brought. On appeal, the general term reversed
It will hardly be contended that the legislature of the state and the board of supervisors of a county are bodies inferior in dignity to the common council of the city of Kingston, and if the courts have uniformly viewed with such