Boston & M. R. R v. State

• Decision Date: 29 September 1910
• Citation: 75 N.H. 513,77 A. 996
• Court: New Hampshire Supreme Court
• Parties: BOSTON & M. R. R v. STATE.

77 A. 996

75 N.H. 513

BOSTON & M. R. R

v. STATE.

Supreme Court of New Hampshire.

Sept. 29, 1910.

Petition by the Boston & Maine Railroad for an abatement of taxes levied by the State Board of Equalization. An appeal from an appraisal was entered directly in the Supreme Court. Motions by petitioner to compel witnesses to answer inquiries put to them in the course of their examination and to produce documents in obedience to a subpoena. Granted.

Branch & Branch and Oliver E. Branch, for plaintiffs. Edwin G. Eastman, Atty. Gen., for the State.

Patrick H. Sullivan, for witness Varick. Burnham, Brown, Jones & Warren, and Robert L. Manning, for witness Burpee.

PARSONS, C. J. The plaintiffs' petition for abatement is a civil cause in which they have the right to take the deposition of any witness for use at the trial. Pub. St. 1901, c. 225, § 1; Rancour's Petition, 66 N. H. 172, 175, 20 Atl. 930; Hayward v. Barron, 38 N. H. 366. Witnesses duly summoned having refused to disclose orally and by documentary proof facts claimed by both parties to be material to the issue, the parties are entitled to some procedure by which the question of law involved in the refusal to answer can be authoritatively settled with reasonable promptitude. The only objection to the procedure adopted, and the only one considered, is the suggestion that the question of the witnesses' obligation to answer should be submitted to referees who have been appointed to try the facts.

Whatever rule may properly guide the referees in the admission or rejection of evidence when produced before them (Doe, J., in Cocheco Mfg. Co. v. Strafford, 51 N. H. 455, 476), and whatever power, if any, they may have to enforce their rulings by ordering the commitment of recalcitrant witnesses appearing before them at the trial, no ground is perceived upon which they have authority to control more than the trial which they have been commissioned to conduct. If by agreement the question of the witnesses' obligation had been referred to them, their decision might have been morally and perhaps legally binding; but no course has been adopted. That upon commitment by the magistrate the referees would have had no jurisdiction of the witness' petition for release upon habeas corpus is too plain for discussion. Whether the witnesses' privilege excuses them from disclosure is a question of law which this court must decide for itself.

In this controversy between the plaintiffs and the state, in which the witnesses are not immediately interested, the witnesses complain that they are asked to disclose by oral testimony and the production of written matter in the possession details of their private affairs for the benefit of strangers. The ground of their objection is not very clearly presented; but it seems to be, aside from a natural disinclination to make public disclosure of their business affairs, that such disclosure may in some way result to their pecuniary disadvantage. "No subject shall * * * be compelled to * * * furnish evidence against himself." Bill of Rights, art. 15. But this article relates to criminal proceedings only. Wood v. Weld, Smith, 367, 368. It has not been suggested that response to the inquiries or the requests for the production of papers would tend to incriminate either of the witnesses.

There was at one time in England diversity of opinion whether a witness could be compelled to testify to facts which might expose him to a civil suit or to pecuniary loss, which was settled by a statute declaring that a witness cannot by law refuse to answer a relevant question upon the ground that the answer may tend to establish he owes a debt, or is otherwise subject to a civil suit. 46 Geo. III, c. 37 (May 5, 1806). This statute has generally been accepted in this country as correctly declaring the law, 1 Wash. Ev. § 452; 3 Wig. Ev. § 2223. It was so held in this state in 1825 (Copp v. Upham, 3 N. H. 159, 162), a conclusion that does not appear to have been since questioned. A witness has no greater right to conceal facts by withholding documentary proof of them in his possession than to refuse to answer orally to matters within his knowledge. There is no difference in principle between compelling proof of the truth by either method. Bull v. Loveland, 10 Pick. (Mass.) 9, 14; Burnham v. Morrissey, 14 Gray (Mass) 220, 240, 74 Am. Dec. 676; Amey v. Long, 9 East, 473; 3 Wig. Ev. § 2193. In either case the evidence, when properly called for, must be produced unless its production is excused by some specific privilege. That the disclosure may result in pecuniary loss to the witness or is personally distasteful to him is not such a privilege.

While the witnesses are naturally disinclined to disclose the details of their private business for the benefit of third parties, the duty to do so when required in the administration of justice is one devolving upon them as members of a civilized community. Except for such duty, the promise of protection to each member of the community by the twelfth article of the Bill of Rights, and of a certain remedy for wrong by recourse to the laws, declared to be the right of each subject by the fourteenth article, would be of no value. This remedy through judicial procedure is part of the protection guaranteed to each member of the community from the community, by the twelfth article, and to effect which each member is by the same article declared to be bound to contribute his share of the expense and to yield his personal service when necessary. There could be no judicial administration of rights without the personal service of members of the community, and their efforts as such officers would be futile if other members of the community possessing knowledge of, or other evidence as to, the controversy, were not obliged to yield their service when necessary. The service rendered by the witnesses in appearance at the caption in obedience to the subpoena was doubtless not agreeable to them and was not performed without pecuniary sacrifice. Inconvenience, monetary loss, or disinclination they did not regard as an excuse for disobeying the subpoena requiring their presence. Neither is a valid excuse for failure to testify or to obey the subpoena duces tecum. The service is one which they are constitutionally bound to render and for which they perhaps can obtain full recompense only when they may be compelled to ask like protection from the community. The Constitution merely recognized and declares, but does not create, the duty. "Every person in the kingdom, except the sovereign, may be called upon and is bound to give evidence to the best of his knowledge upon any question of fact material and relevant to an issue tried in any of the queen's courts, unless he can show some exception in his favor." Willes, J., in Ex parte Fernandez, 10 C. B. (N. S.) 3, 39. "For 300 years it has now been recognized as a fundamental maxim that the public * * * has a right to every man's evidence." 3 Wig. Ev. § 2192.

One issue in the principal case is at what rate the plaintiffs' tax should be assessed so that they may be taxed "at a rate as nearly equal as may be to the average rate of taxation * * * upon other property throughout the state." Unless such other property throughout the state is appraised at its full value for taxation, the determination of the average rate involves something more than a mere arithmetical calculation. That in order to tax all property equally it is as necessary to value it by the same standard, as to take for the tax the same portion of the value when found, is a plain mathematical proposition which as matter of law has been so thoroughly considered by this court that comment is now uncalled for. The plaintiffs' claim that property other than theirs is not appraised for taxation at its full value makes an issue as to the true value of all taxable property in the state. The evidence sought from the witnesses, both oral and documentary, having some tendency to establish the value of the stock in trade of...