In re Barnes

This is an appeal from an order of the Appellate Division, in the third department, which reversed an order committing William Barnes, Jr., to jail for refusing to answer certain questions, propounded to him, as a witness, by a committee of the senate of the state, and which denied the motion for his commitment.

On July 21st, 1911, the senate and assembly of the state adopted a concurrent resolution, which authorized the appointment of a special committee of the senate with power to investigate certain charges, which had been made concerning-the administration of the various offices and departments connected with the city and county of Albany, and to report to the senate thereon, with such recommendations as in its judgment the public interests require. Power was conferred to compel the attendance of witnesses and the production of books and papers. The charges to be investigated were, in substance, that grave abuses exist in the departments of the county and of the city; that they were corrupt; that the laws and municipal ordinances, relating to the prevention of crime and to the maintenance of peace, order and morality, were not strictly enforced, or were enforced with partiality; that the departments were “conducted with the object of personal gain,” dishonestly, with “ discriminations against the citizens ” and with extravagance. The committee, in the course of its investigations, had before it, as a witness, under subpoena, William Barnes, Jr. He refused to answer certain questions addressed to him and, also, though subpoenaed thereto, refused to produce the ledgers and books of original entry showing

The majority of the Appellate Division justices held the provisions of section 856 of the Code of Civil Procedure, under which the proceeding was brought, to be unconstitutional; inasmuch as the section “ contemplates no notice to the alleged offender.” That section reads, so far as material: “if the person subpoenaed and attendhig * * * before an officer or other person or a body refuses without reasonable cause to be examined, or to answer a legal ■ and pertinent question, or to produce a book or paper, * * * any judge of such court (court of record) may upon proof by affidavit of the facts by warrant commit the offender to jail, there to remain, until he submits,” etc. The decision of the Appellate Division followed, without discussion, the authority of Matter of Grout, ( 105 App. Div. 98 ); where the Appellate Division, in the second department, had

Besides, I think that a witness has all the protection he is entitled to — as much as if notice was expressly required to be given him — in the peculiar and explicit language of the section. That is, he may not be committed to jail, unless he “refuses without reasonable cause to be examined, or to answer a legal and pertinent question, or to produce a book, or paper,” etc. This provision requires of the judge that he first determine whether the refusal of the witness, in question, was, or was not, with reasonable cause and whether the question asked was pertinent, and that, necessarily, imports that the witness has been heard from upon the reasonableness of his refusal. Due process of law has been defined “ as law in its regular course of administration through courts of justice.” (2 Kent. Com. 13.) It seems to me, as it was held in Happy v. Mosher, ( 48 N. Y. 313 , at p. 311), that it is a sufficient notice when the party proceeded against “ will be apprised of what is going on against him, and an opportunity is afforded to him to defend.” (And see People ex rel. McDonald v. Keeler, 99 N. Y. 463 , at p. 479.) It would be, indeed, unfortunate for the administration of justice, if it should, now, be held that this statutory provision is invalid, when, as Mr. Justice Kellogg well observed, a fair reading of the section, “both with regard to its working and its purpose, permits a construction, which would uphold as constitutional this most necessary provision of law.” The objection urged is, as it seems to me, excessively technical, in view of the provision I have called attention to, which prescribes, as a condition precedent to the commitment of the witness, that the committing judge shall determine the reasonableness of the witness’ cause for refusing to testify. Without greater

That each house of the legislature may punish con-tempts of its authority by other persons, where they are committed in its presence, may not be disputed and, equally, may it be a contempt of the house for a witness to refuse to appear, or to testify, before its duly empowered committee, or to produce books, or papers. (Cooley’s Const. Law. *135; People ex rel. McDonald v. Keeler, supra.) Sections 854, 855 and 856 of the Code of Civil Procedure were enacted to make provision for such an attendance of a witness before a committee of either house and for his punishment when contumacious. Section 854 provides for requiring by subpoena his attendance and that he bring with him a book, or paper, “in a proper case.” Section 856 provides, as a condition of invoking the aid of the court, that the question, which is propounded to him, shall be “ legal and pertinent.”

Taking up the question of the right to compel the witness to produce the books of the Journal Company, of which he was the president, I think it turns upon whether their production became necessary to the inquiry set on foot through the legislative committee. If the evidence before that body was a sufficient showing of the character of the dealings, and of the methods of the company in transactions, with the departments of the city and county government, then I think it was not, in the language of section 854, “ a proper case ” to insist upon laying bare the corporate books. The committee wanted such evidence of abuses, or of corrupt practices, or of such official misconduct, as would enable it to “ report the information required by the resolution * * * with such recommendations as the public interests require.” It was not a proceeding against the corporation itself; for it was brought into the investigation incidentally to a general inquiry into the conduct by the officers of the municipal government. The

This was no occasion for going through the corporate books for the purpose of fishing for other facts, which might reflect discreditably upon the business methods oi the company; with the result of exposing its business dealings to the world. In Wilson v. U. S., ( 221 U. S. 361 ), the only question was stated, in the opinion, to be)5 “whether as against the corporation the books were lawfully required in the administration of justice.” In that case, officers of the corporation had been indicted for alleged violations of the statute in a misuse of the mails. In Hale v. Henkel, ( 201 U. S. 43 ), the contumacious witness was examined with reference to an action pending between the United States and a corporation, of which he was an officer. Therefore, neither of these decisions

The five questions, which the witness refused to answer and which are now involved, are these: “ (1) Mr. Barnes, you got your stock, (referring to the stock of the Lyon Company), in 1901, is not that true ? (2) Did you pay anything for your stock in the Lyon Company % (3) Did you talk to Mr. Lyon about the consideration that you paid for your stock at the time that you saw him ? (4) Did you pay anything for it ? (5) Was it given to you ? ” The J. B. Lyon Company was a corporation, which had furnished the county of Albany with printing for a period of ten years, and Barnes was the owner of 750 out of an issue of 3,000 shares of capital stock. He testified to having been a “leader” of the Republican party, a party for some years dominant, politically, in Albany county; employing that tetin, as he said, to mean “ a man whose advice is taken largely by the men of the political party, with whom he is associated.” As stated by Justice Kellogg, at the Special Term, “the investigation was being had as to whether a person in that position had acquired a substantial stockholding interest in a company, which furnished printing to a large amount to the political subdivision in which he was a figure of power, without any adequate compensation therefor, and whether this species of patronage had been given to the company in return

I think that the committee exceeded the true scope of its jurisdiction, when seeking to elicit such evidence by their questions. He violated no law in receiving the stock as a gift, whatever the giver’s motiye, and his interest was of . that magnitude, however acquired, as to warrant the presumption that it might influence him in doing all that his prominent position in the community enabled him to do to obtain for the company a share of the public business. The fact of his interest in a company, which was contracting and dealing profitably with the municipal departments and public officials, was made known and the committee could make such inference, and deduce such conclusions therefrom for its report, as its members might deem to be justified. The committee could not be aided, within the proper legislative province of its inquiry, by the knowledge of how Barnes had obtained his stock. He owned it and the time when he got it, or the consideration for it, were matters quite immaterial and beyond the jurisdiction of the committee to inquire into. Section 856 requires that the questions to be answered shall be “pertinent;” that is, they must be pertinent to ah inquiry of the investigating committee into the necessity for remedial legislation. “No person can be punished for contumacy as a witness before either house unless his testimony is required in a matter into which the house has jurisdiction to inquire, and * * * neither of those bodies possesses the general power of making inquiry into the private affairs of the citizen.” (People ex rel. McDonald v. Keeler, 99 N. Y. 463 , at p. 478.) This was. observed ■ with respect to the houses of Congress; but the remark is equally applicable to those of the state legislature. If Barnes had the right to acquire an interest in the Lyon Company, which may not well be disputed, and used his

Assuming that the various matters for investigation recited in the extremely broad resolution of the legislature are within the legitimate scope of a legislative inquiry, a question which is not discussed, I think thSlf it was not “a proper case” for compelling the production of the books of the Journal Company, within the provisions of Code section 854, and that the questions which the witness was directed to answer were not “ legal and pertinent,” within the provisions of Code section 856. For these reasons, I advise the affirmance of the order of the Appellate Division. ture are within the legitimate

This is a proceeding to punish the respondent, William Barnes, Jr., for an alleged contempt in refusing to produce certain books and papers, and to answer certain questions propounded to him, upon a hearing before a senate committee which was charged with the duty of investigating certain alleged abuses in the various public offices and departments connected with the municipal • governments of the city and county of Albany. The proceeding was instituted under section 856 of the Code of Civil Procedure, which provides that if a person “subpoenaed and attending or brought * * * before an officer or other person or a body ” as prescribed in the preceding sections (854, 855) “refuses without

The respondent was duly subpoenaed, and directed to produce certain books, which he refused to do, and asked to answer certain questions, which he refused to answer, not contumaciously, but because he challenged the right of the committee to require him to produce the specified books, or to answer the particular questions. Thereupon an application was made to a justice of the Supreme Court for an order to show cause why a warrant should not issue to apprehend the respondent, and to commit him to the jail of Albany county, there to remain until he should produce such books and answer such questions. .Upon appeal to the Appellate Division, a majority of the justices held that section 856 of the Code of Civil Procedure is unconstitutional because it provides for no notice to the alleged offender, and is, therefore, repugnant to the “due process ” clause of the Constitution. This conclusion was based upon the authority

Upon this appeal from the order of the Appellate Division, our brother Gray has written an opinion in which he holds that under section 856 a summary conviction without notice violates no constitutional right; and that even if notice were necessary, we can read into the language of the section a provision requiring notice to be given. I dissent from the first of these two propositions but concur in the last. I think the language of section 856, which is by no means clear, may be so construed as to require notice to one charged with contempt, and that when read in connection with the provisions of the Judiciary Law relating to criminal contempts, the question is removed from the realm of doubt.

Conceding, for this branch of the discussion, that this , proceeding stands upon the same footing as any similar proceeding to punish for an alleged contempt in a court of record, we have only to refer to the Judiciary Law (Sec. Y50, subd. 3) to ascertain that the offense charged against the respondent is a criminal contempt; and a contempt which is within that classification can only be punished summarily when committed within the immediate view and presence of the court. (Judiciary Law, sec. Y51.) The obvious reason for this provision is that in such a case the court is a witness to the contempt and needs no further proof. The same section of the Judiciary Law provides that a person charged with a criminal contempt not committed in the immediate view and presence of the court, can only be punished after having

Unless we can read into section 856 a provision for notice, either by force of its own language or in connection with the mandates of the Judiciary Law, I regard the Code section to be plainly unconstitutional. We are not now concerned with the ancient and inherent powers of courts of record, or with the prerogatives of supreme legislative bodies, hut with the law as we find it on our statute books. Conceding the inherent powers of these governmental agencies, it cannot be denied that it is an anomaly in legal procedure to impose upon one tribunal

It has been suggested that the warrant provided for in section 856 is not the final adjudication inflicting punishment, but merely an intermediate writ under which the alleged offender is taken into custody until he “submits to do the act which he was so required to do or until he is discharged according to law.” It would he difficult if not impossible to imagine any more summary or effectual method of depriving, a person of his liberty than to take

Upon the other questions in the case I concur in the views expressed by Judge Gray. The statute (Section 856) directs that if a person subpoenaed, etc., refuses without reasonable cause “ to answer a legal and pertinent question ” he may be dealt with according to its provisions. What is a legal and pertinent question ? Obviously one that violates no legal right of the witness, and that is pertinent — that is relevant and material — to the purpose of the proceeding or investigation in which the witness is being examined, flf the question goes beyond this limitation it is illegal and impertinent and the witness cannot he compelled to answer it. Who is to decide whether a question is legal and pertinent ? If a legislative committee or its counsel are to be the final arbiters upon this important limitation, it is an idle ceremony to appeal to the courts. It seems to me that the plain import of the words “ legal” and “pertinent” as used in the statute is to confine the proceeding within lawful bounds and proper methods with respect to the legal rights of the individual who is called upon to testify, and when he challenges the legality and pertinency of the information, sought from him, it presents a question of law for the courts to decide/ If we were concerned merely with the cumulation of pertinent testimony, I should agree with our brother Bartlett that the courts should not attempt to substitute their judgment for the discretion of a legislative committee. But that is not the question. We are to decide (1) whether a private citizen can he compelled to divulge to a legislative investigating

The five oral questions which the respondent refused to answer all relate to his ownership of stock in the J. B. Lyon Printing Company, and were asked for the purpose of ascertaining how and when he got the stock, and what he paid for it, if he paid anything. It is charged that for a number of years the J. B. Lyon Company-had been paid large sums for county printing without public bidding at the instance of Republican county officials: and that it had also done a large amount of city printing either directly upon the orders of city officials, or indirectly upon orders received through the Journal Company. The innuendo is that these things were done at the instance of the respondent, an influential political leader and a large stockholder in both printing companies. If there was anything illegal or morally culpable in the transactions between either of these corporations and the county or city officials or departments, it would not be more so because the respondent had received stock as a gift, and it would not be less so if he had paid full value for it. In either event, the legitimate and pertinent inquiry would be as to the character of the transactions, and not as to the motives of the persons connected with them. Neither would the answers to any of these questions throw any light upon the propriety or necessity for recommending future legislation designed to regulate, limit or forbid the letting of municipal contracts to corporations having stockholders of political influence who have paid nothing for their stock. If that

What has been said concerning the oral examination of the respondent applies with equal force to the effort to compel the production of the hooks of the Albany Journal Company. The charges against that corporation are to the effect that the corporation received large sums for the printing of Session Laws when in fact it had rendered no such service; that for several years the Journal Company received from the Argus Company fifteen per cent of the amount paid to the latter by the city of Albany for city printing, and that this was done not in payment for any service performed but as a bonus or gratuity; that the Journal Company for several years received orders for city printing without competitive bids; and in some instances in violation of the city charter arranged to so subdivide these orders as to obviate the necessity for public bidding. It is not contended that the hooks of the Albany Journal Company would disclose any facts which would substantiate these charges; on the contrary, the assertion is that they have been established by other evidence. The respondent offered to give the committee true sworn copies of the Journal Company’s hooks covering all dealings between the corporation and the city or county of Albany, hut that offer was declined. The charges in this behalf were definite, and we have the word of counsel for the committee that they were proven. In that aspect of the matter the committee needed no further information, and even if it did, it declined the respondent’s offer to furnish the only further evidence that was pertinent to the charges. It is no answer to say that extracts from the hooks might not have shown the true state of affairs. If it is true as charged, that the Journal Company received payment for work that it never performed and evaded the provisions of the city

I vote to affirm the order of the Appellate Division.

(dissenting). I vote for the reversal of the order of the Appellate Division and the affirmance of the Special Term. I concur with Judge Gray in the view that the provisions of section 856 of the Code of Civil Procedure do not violate the Constitution by depriving the respondent of due process of law. The antiquity of those or similar provisions of the statutes of this state is cogent, if not conclusive evidence, of their constitutionality. In this case the respondent was proceeded against by order to show cause. Personally I do not believe that the proceeding authorized by the Code is punitive in the proper sense of that term, but solely a method of enforcing obedience to a duty imposed upon the respondent by law to give testimony before the committee of the senate. A very clear exposition of the nature of such proceedings is to be found in Application of Clarh (65 Conn. IT). In this view notice was not necessary.

The respondent had a hearing before the committee of the senate appointed pursuant to a joint resolution of the legislature, which decided that the questions were material and should be answered. The legislature could have devolved on this committee itself the power to commit the respondent "until he answered the questions propounded to him, if the questions, were material and proper (People v. Learned, 5 Hun, 626 ; People ex rel. McDonald v. Keeler, 99 N. Y. 463 ), while if improper and beyond the jurisdic

If I err, however, in this view, and the proceeding against the respondent is to be deemed one to punish him for contempt, then the mode of procedure is controlled by the provisions of the Judiciary Law, which require that, except in certain specified instances, which do not include the one before us, the proceeding must be instituted by either an . order to show cause or hy an attachment. (Judiciary Law, §§ 753, 754, 755.) These provisions would seem in any aspect of the case to save section 856 of the Code from condemnation as unconstitutional, and, as already said, the proceeding before us was instituted by an order to show cause.

I concur in the opinion of Judge Bartlett that the questions propounded to the respondent by the committee were legal and pertinent. I know of no principle by which testimony on the main issue can be excluded because cumulative. A court may limit the number of witnesses to be sworn on collateral issues, such as character, credibility and the like, but even then the power to so limit the testimony rests in the discretion of the trial court. Improperly limiting testimony may be regarded as error by an appellate court, but I cannot conceive that failure to limit testimony could be considered such, and it must be remembered that in this proceeding the senate committee stands at least in as favor

It is further to be observed that the testimony that the Albany Evening Journal received a percentage on the printing or advertising done by the Albany Argus was given by persons interested in a newspaper of opposite politics to those of the Journal, and though the committee may think that evidence is clear, the object of the investigation is that the legislature may act. It may be that some members of the two houses will not credit the evidence of political opponents, but deem their statements political slanders. Therefore, plainly, the committee had the right to discover from the books of the Journal itself whether the payments referred to had in fact been made, and it was not obliged to take statements of the contents of those books but was entitled to see the originals, in conformity with the rule which has always prevailed in courts, that the best evidence must be produced and that the best evidence of the contents of written papers is the papers themselves.

(dissenting). I dissent from the conclusion reached by a majority of the court to the effect that the senate committee has not jurisdiction to compel the respondent to answer the questions which he has refused to answer or to require the production of the books and papers which he has been subpoenaed to produce.

I agree that section 856 of the Code of Civil Procedure is constitutional. It does not seem to me necessary to discuss whether or not it would be valid in the absence of any provision for notice to the witness before the issue of a warrant against him, as I think the language of the section fairly imports the requirement of such notice.

But it is said that the committee knew all it needed to know on the subject when Mr. Barnes admitted that he owned about 150 shares, and that it could not aid the committee in framing its report to the legislature to know in what manner Mr. Barnes acquired his stock in the J. B. Lyon Company. I cannot assent to this proposition at all. The gradual acquisition for full value of a substantial interest in a corporation which happened to have business with the municipal government would by no means warrant the unfavorable inferences which might be drawn from the gratuitous bestowal of a large block of stock upon a powerful political leader. The mode of acquisition would make all the difference in the world. Nor do I understand it to be a rule controlling the conduct of a legislative investigation having remedial legislation in view that cumulative evidence cannot be taken. The committee itself may properly decline to receive further proof on a given subject because satisfied that it already has sufficient to enable it to arrive at a satisfactory conclusion; but if it chooses to seek further, the evidence is not illegal or irrelevant merely because it tends to confirm or corroborate or elucidate what has gone before. The “ legal and pertinent ” questions which the Code, requires a witness to answer need not be essential to the inquiry; it is enough if they are appropriate to the end in view and do not infringe upon any right of the witness.

It is conceded in the prevailing opinion that the refusal of Mr. Barnes to produce or allow to be produced the corporate books of the Journal Company designated in

The abuse of the power of oficial investigation for purposes other than those contemplated by law is a detestable practice calling for the sternest reprobation by all those authorized to deal with it. I find nothing in this record, however, which seems to me to justify the court in holding that the senate committee has attempted any

Hisoook, Chase and Collin, JJ., concur with Cray, J., as to questions propounded to witness, and with Werner, J., as to the constitutionality of the statute; Cullen, Ch. J., and Willard Bartlett, J., read dissenting opinions.

Order affirmed.