People ex rel. Webster v. Van Tassel — 71 N.Y. Sup. Ct. 444

Majority

p. 444

THE PEOPLE OF THE STATE OF NEW YORK ex rel. GROVE WEBSTER, Respondent, v. WILLIAM T. VAN TASSEL, Sheriff of Ulster County, Appellant.

Headnote

Contempts — a power to subpoena, a witness given to a committee of a common council — it is a contempt to refuse to testify — not a contempt to refuse to produce papers.

The charter of the city of Kingston (Laws of 1872, chap. 150, § 32) gives to a committee of its common council power in certain cases to issue a summons “to any person to appear and testify before them,” and provides that any person who shall refuse to attend, or to be sworn or “to answer any proper or pertinent question” may be committed to the county jail, etc.,'but makes no provision for a case where a witness fails to produce books which he has been subpoenaed to produce.

Such a committee of the Kingston common council directed, by subpoena, the city treasurer to produce certain bank books showing the accounts existing between himself, as city treasurer, and a certain bank, and also other documents. The city treasurer appeared and testified, but refused to produce the books and' documents; for which refusal he was punished as for a contempt.

In proceedings taken by habeas corpms to review his commitment:

Held, that as there was no provision in the city charter which authorized, in terms, the committee to require the production of the books, that the existence of such power would not be implied.

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That the power to punish for contempt would not arise by implication or from the necessity of the case.

That, in this regard, a statute must be most strictly construed, and cannot be extended in any respect.

Appeal by William T. Van Tassel, Sheriff of Ulster county, from an order of the county judge of Ulster county, entered in the office of the clerk of the county of Ulster on the 3d day of February, 1892, discharging, in habeas corpus proceedings, Grove Webster from imprisonment. The facts appear in the opinion of the county judge of Ulster county.

The opinion of the county judge of Ulster county, referred to in the opinion of the General Term, is set forth in the note.^[1]

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Q. D. B. Hasbrouale, for the appellant.

B. M. JDe Witt, for the respondent.

The opinion of the court below contains a full statement of the facts of the case and a learned and able discussion of the questions involved. In addition to what he has said, I will only make a few suggestions regarding one phase of the case.

The proceedings which resulted in the order of the recorder,

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adjudging the relator guilty of contempt in declining to produce books and papers, were brought under section 32 of the charter of the city of Kingston, chapter 150 of the Laws of 1872. And the question submitted is, does this section of said chapter authorize the commitment of the relator for contempt in declining to produce books and papers ?

It provides for two cases where a commitment may be made. First. Where one summoned shall refuse to attend. Relator did attend, and hence should not be imprisoned under that clause of the section.

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Second. Section 32 provides tliat one summoned, who refuses to be sworn, affirmed, or to answer any proper and pertinent question may be committed. The relator did not refuse to be sworn or to answer any proper or pertinent question. The above quoted clauses are the only ones relating to commitment for contempt.

The power to punish for contempt is derived from the statute, and cannot be extended beyond the limit imposed by the law. “No implication and no fancied necessity can be permitted to add to the literal meaning of the words by which the legislature have

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restricted this power. And this is especially true of all tribunals which are not courts of general jurisdiction.” (Rutherford v. Holmes, 5 Hun, 317 ; 66 N. Y., 368 .)

There seems to be an omission in the act under consideration to provide for a case where a witness declines to produce papers; and unless we attempt to disregard the doctrine laid down in the case of Rutherford v. Holmes (supra), that the power to commit for contempt cannot be extended in the least degree beyond the terms of the statute, we are compelled to adopt the view of the

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court below. Tbe statute under which the recorder acted being silent as to any power on his part to commit for non-production of •papers or books, in this regard is different from the Civil and Criminal Codes and Revised Statutes.

Under section 856 of the Code of Civil Procedure, power is conferred upon the court to commit a witness when he refuses “ to produce a booh or paper which he was directed to bring by the terms of the subpoena.” The Criminal Code (§ 613) provides fora subposna duces tecum,, and (§ 619) that for disobedience to a subpoena the

p. 451

witness may be punished in the manner provided by the Civil Code. Under the Revised Statutes (2 R. S., 534, § 1), it was provided that the court could punish as for a contempt a person summoned as a witness for refusing or neglecting to obey such summons.

Section 32 of the charter of Kingston does not contain any general authority on the part of the recorder to commit for a refusal to obey the summons, but limits the right of commitment to certain acts of disobedience, viz.: The refusal to attend, and the refusal to be sworn or answer proper or pertinent questions.

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I, therefore, conclude that there is an omission in the statute to confer power upon the recorder to commit for failure to produce papers and books, a defect that cannot be remedied by courts, and that hence the conclusion reached by the county judge was correct.

This view of the case renders it unnecessary to consider the other questions raised as to the order made by the recorder.

The order of the court below should be affirmed, with costs.

Mayham, P. J., concurred; Hebbick, J., concurred in the result.

Order affirmed, with costs.