148 A. 551 (Conn. 1930), McCarthy v. Clancy

Citation:148 A. 551, 110 Conn. 482
Opinion Judge:MALTBIE, J.
Party Name:MCCARTHY v. CLANCY, CITY SHERIFF.
Attorney:William E. Thoms and Frank P. McEvoy, both of Waterbury, for plaintiff. William H. Comley, State's Atty., and Lorin Willis, Asst. State's Atty., both of bridgeport, for defendant.
Judge Panel:Argued before WHEELER, C.J., and MALTBIE, HAINES, HINMAN, and BANKS, JJ.
Case Date:January 06, 1930
Court:Supreme Court of Connecticut
 
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Page 551

148 A. 551 (Conn. 1930)

110 Conn. 482

MCCARTHY

v.

CLANCY, CITY SHERIFF.

Supreme Court of Errors of Connecticut.

January 6, 1930

Page 552

Case Reserved from Superior Court, Fairfield County; Carl Foster, Judge.

Application for writ of habeas corpus by George T. McCarthy, Sr., against Thomas H. Clancy, City Sheriff, to determine the legality of plaintiff's imprisonment. Case reserved by judge of superior court on facts as stipulated for advice of Supreme Court of Errors. Questions answered.

Duty of determining whether witness refusing to answer questions of grand jury should be committed to jail held properly imposed on justice of peace.

Page 553

This case is presented upon a stipulation of the parties as to the facts, which is, in substance, as follows: On July 10, 1929, three justices of the peace of Fairfield county residing in the town of bridgeport, purporting to act in accordance with the provisions of section 351 of the General Statutes" to advise concerning offenses committed in such town," signed and issued a document requireing a sheriff of the city of bridgeport to bring before them forthwith the plaintiff to testify concerning a contract between the city of bridgeport and C. W. Blakeslee & Sons for the construction of a bridge at Yellow Mill, the assignment of this contract to the Blakeslee bridgeport Corporation, and the presentation to the city of bridgeport, and the payment by it of certain bills and claims for alleged labor and material in the construction of the bridge, and to bring with him the books, documents, and contracts relating to the assignment of the contract, all subcontracts made by C. W. Blakeslee & Sons or the Blakeslee bridgeport Corporation in the building of the bridge and the corporate records and books of account of this corporation, together with all canceled checks, and check books covering any checking account or bank deposit of that corporation with three banks and a banking firm.

In pursuance of the command contained in this document, the sheriff brought the plaintiff before the justices. He was sworn by one of the justices, but upon advice of his counsel refused to answer any questions whatsoever that might be asked of him by either of the justices or by any one else in their behalf, and fully stated his reasons for so declining. He had a direct financial interest in the construction [110 Conn. 485] of the bridge, and the questions asked of him by the justices of the peace immediately affected his private and personal interests. Immediately upon the refusal of the plaintiff to answer any questions, the justices caused a mittimus to be issued and delivered to the sheriff, which recited the refusal of the plaintiff to testify concerning the matters referred to in the document, and commanded the sheriff to take the plaintiff and commit him into the custody of the keeper of the jail of the county and

Page 554

leave with him the mittimus, and commanding the keeper to receive the plaintiff and safely keep him in the jail " until he consent to testify his knowledge in the aforesaid matters and be discharged by due course of law." The sheriff thereunder took the plaintiff into his custody and was proceeding to deliver him to the keeper of the county jail when this writ of habeas corpus was served. The stipulation fails to recite that the justices met prior to the issuance of the mittimus, purporting to act under section 351, but the parties in argument concede this fact, and we shall assume it to be so.

Before the issuance of the order to the sheriff to bring the plaintiff before the justices, he had made application to a judge of the superior court for a writ of prohibition to prevent them from continuing the proceedings. The judge ordered that a rule to show cause issue thereon and that no further action be taken by the justices in the matter before them pending the hearing thereon, and required them to appear at a stated time and place to show cause why the writ should not be issued against them. Later the justices appeared and filed a demurrer to the petition for the writ, which was sustained. No further proceedings were taken, and no final judgment dismissing or denying the application, nor any order terminating any stay of the writ, has been made. Thereafter one of[110 Conn. 486] the justices, without notice to the plaintiff, made inquiry of the judge deciding the demurrer whether the issuance of further subpoenas in the absence of a final judgment would be regarded as a contempt of court, and was informed by the judge that he would not so regard it. Thereupon the justices proceeded to summon and question the plaintiff as before recited.

No information has been filed nor any indictment found in any court against any person as a result of anything connected with the matter which was the subject of investigation by the justices, and no preliminary proceeding relating thereto has been had, nor do either the subpoena, capias, or mittimus hereinbefore referred to, by caption or otherwise, refer to any person as accused of any offense, or describe any offense as actually committed.

One of the justices, on May 31, 1929, prior to the issuance of the summons, made a statement which was published on that day in a daily newspaper in bridgeport. This stated that the senior investigating committee did not go into the criminal aspects of the bridge case very thoroughly and " did not uncover anything really criminal, but it is expected through this justice court to find out whether there was or was not anything of criminal nature involved. The court is undertaking this work in co-operation with and at the suggestion of State's Attorney Comley." The statement explained why the justice issuing it had chosen two other justices who were Democrats, promised an absolutely impartial investigation, invited the press to be present, and stated the powers of the justices in case the three subpoenaed did not appear, or in case they appeared and refused to answer proper questions. The statement concluded: " The expectation of the court is to get to the bottom of this thing and to find out, as far as possible, if any one who has been connected [110 Conn. 487] with the bridge or bridge contract has been guilty of any criminal offense."

William E. Thoms and Frank P. McEvoy, both of Waterbury, for plaintiff.

William H. Comley, State's Atty., and Lorin Willis, Asst.

State's Atty., both of bridgeport, for defendant.

Argued before WHEELER, C.J., and MALTBIE, HAINES, HINMAN, and BANKS, JJ.

MALTBIE, J.

The defendant having made return to the writ of habeas corpus, and issues having been joined, the case comes before us upon a reservation. The questions of law presented for our consideration and advice principally concern the constitutionality of section 351 of the General Statutes, the authority of the three justices of the peace to act under it, and the effect of the proceedings upon the petition for the writ of prohibition. Section 351 provides as follows: " The grand jurors in each town, or any three of them, or the justices of the peace residing in any town, or any three of said justices may meet to advise concerning offenses committed in such town, and may call before them at such meeting any witnesses to be examined touching the same, and if any person shall refuse to appear before them at such meeting, being summoned by competent authority, said justices, or any one of them, may issue a capias to bring such person before them, and said grand jurors may apply to a justice of the peace for a capias, who may issue one, to bring such person before said grand jurors; and if any person appearing, or being brought before said justices, shall refuse to be sworn, or being sworn shall refuse to answer any proper question, said justices shall commit him to jail, there to re main at his own expense until he shall give evidence as required; and if any person appearing, or being brought before said grand[110 Conn. 488] jurors, shall refuse to be sworn, or being sworn shall refuse to answer any proper question, said grand jurors may complain to any justice of the peace, in the county where such meeting is had, who shall cause such person to be brought before him and commit him to jail, there to remain at his own expense until he shall give evidence as required. The state's attorney of the county wherein such examination is held and the prosecuting attorney of any town, city, borough or police

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court within the town may assist and participate therein. Said grand jurors and said justices, when so met, shall have all * * * the powers of a justice of the peace when holding court, to commit for contempt."

Previous to the enactment of chapter 274 of the Public Acts of 1895, this section of the statutes did not include justices of the peace, but provided only for the convening of grand jurors for the purposes specified. Under the statute in that form, the question of its constitutionality came before this court in In re Application of Clark, 65 Conn. 17, 31 A. 522, 524, 28 L.R.A. 242, and in a very able and comprehensive opinion written by Hamersley, J., this court sustained the act. It would serve no good purpose to review the opinion of the court in that case at length. It answers directly the two claims now most seriously advanced against the validity of the law and inferentially at least most of the others. To the claim that, by the broad provisions of the act giving the justices power to commit for a refusal to answer " any proper question" a witness is placed in a position where he may be forced by fear of punishment to give evidence tending to incriminate himself, the court answered by approving a decision of Chief Justice Storrs in chambers, that a witness imprisoned for refusal to give evidence...

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