Horstman v. Kaufman

• Decision Date: 14 February 1881
• Citation: 97 Pa. 147
• Parties: Horstman <I>versus</I> Kaufman.
• Court: Pennsylvania Supreme Court

97 Pa. 147

Horstman versus Kaufman.

Supreme Court of Pennsylvania.

January 30, 1881.

February 14, 1881.

January 30th 1881.

Before SHARSWOOD, C. J., MERCUR, GORDON, PAXSON, TRUNKEY, STERRETT and GREEN, JJ.

Certiorari to the Court of Common Pleas, No. 3, of Philadelphia county, of January Term 1880, No. 162.

Isaac S. Sharp (with whom was Alleman), for the appellant.— The court below discharged the rule solely upon the ground of the insufficiency of the affidavit, in that it followed the words of the act, and did not set out the facts to warrant the belief of fraudulent concealment, as was required under the decisions of the lower courts under the Act of 1869, to which the Act of 1879 is a supplement. But since this case was decided in the court below, this court has decided in Sharpless v. Ziegler, 11 Norris 467, that an affidavit following the general terms of the Act of 1869 is sufficient, and the supplement of 1879 must be construed in conformity with the original act.

Mayer Sulzberger, for appellee.—The Act of June 11th 1879, is unconstitutional, because, first, it does not clearly express in its title the subject of it, as required by Art. III., Sect. 3, of the Constitution. It is entitled "a supplement" to the Act of 1869, but its provisions are not germane to the Act of 1869. The purport of that act was only to enable a suit to be commenced by attachment instead of by summons. This supplement has no bearing on that subject. As the object of the Act of 1869 was to give the plaintiff security at the time of bringing suit, a return of nulla bona could not happen, and hence the only cases in which the so-called supplement of 1879 could be invoked, are precisely those proceedings not under the Act of 1869. The Act of 1879 is in effect a supplement to the Act of June 16th 1836, Pamph. L. 763-4, entitled, "An Act relating to executions." Sections 9-18, of that act, bear the sub-title "Of proceedings to discover the defendant's effects," and the supplement of June 11th 1879, is a mere simplification of the process by which such discovery may be made.

Secondly. The supplement is unconstitutional, because it violates Art. I., Sect. 9, of the Constitution, which provides that "a man cannot be compelled to give evidence against himself." The very ground of this proceeding is a charge of fraudulent concealment, which is a misdemeanor under the Crimes' Act of 1860, sect. 130, 131, 132. The proceeding is not a judicial one, as under the Act of 1842, but is at the personal discretion of the judgment-creditor upon filing an affidavit that he has reason to believe that the debtor has acted fraudulently, and thereupon the latter must criminate himself under penalty of attachment. The act also provides for the production, under the said penalty, of books and papers, which process is equivalent to an unreasonable search within the meaning of the Bill of Rights. The act thus attacks the first principles of individual liberty, and introduces the greatest change in the law of evidence in Pennsylvania that has ever been made since the original Constitution.

This certiorari is in effect an application to this court to issue a mandamus to the court below commanding them to appoint a commissioner, but the act does not even contemplate the appointment of a special commissioner in each case if there is a standing commissioner. The principle that a witness must claim his privilege of exemption from answering when a particular question is asked, does not apply to this case, because every question to be put is intended to substantiate the criminal charge made by the affidavit. Under such circumstances, the defendant can refuse to be sworn: Galbreath v. Eichelberger, 3 Yeates 515; Cooley on Constitutional Limitations ^*314, ^*394; Broadbent v. State, 7 Md. 416; Regina v. Garbett, 1 Denison C. C. 236; 1 Greenleaf on Evidence, sect. 451; Wharton's Criminal Law, sect. 807, 808 (7th ed.); Emery's Case, 107 Mass. 172. The plaintiff in this case resides out of the jurisdiction, and made his affidavit in New York probably without any knowledge of the circumstances, and if he has a reason for his belief it was proper for the court below to compel him to state it.

Sharp, in reply.—We deny that the Act of 1879 is unconstitutional, either because of its title, or of its enacting clause. The Act of 1869 is entitled, "An Act relevant to fraudulent debtors." This "supplement" relates to a discovery of fraudulent debtors' property, and is therefore germane to the original act. It might well have been incorporated in the original act. It is settled that an act, entitled a supplement to a previous act, sufficiently indicates its subject to meet the requirements of Art. III Sect. 3, of the Constitution, if its subject is germane to the subject of the original act. In re First Presbyterian Church, 6 W. N. C. 421; Allegheny Co., Holmes's Case, 27 P. F. Smith 77; State Line Railroad Co.'s Appeal, Id. 429. Sect. 8 of the Bill of Rights, prohibiting unreasonable searches, was directed against the issuing of general criminal warrants, which had grown to be an abuse in England, and is inapplicable to this act, which provides for the common-law process of subpœna. Nor is the act in violation of the 9th section of the Declaration of Rights, which provides "that in criminal prosecutions * * * the accused cannot be compelled to give evidence against himself." The refusal to answer is a personal privilege, which must be claimed when the question is asked, the answer to which would criminate the witness, and it may be waived. But if answered under a compulsory order of the court, or under a compulsory statute, such disclosure could not be used against him in a criminal prosecution: 1 Greenl. on Ev., sect. 451; Regina v. Garbett, 1 Denison C. C. 236; s. c. 2 Car. & K. 474; United States v. Prescott, 2 Dillon Circ. C. 405; In re Brooks, 5 Pac. L. R. 236; Act of July 12th 1842, sect. 22; Purd. Dig. 53, Pamph. L. 345; Uhler v. Maulfair, 11 Harris 481. If this act is unconstitutional, so would be the Act of 27th of March 1865, which enables the party to call his opponent to testify; so also the Affidavit of Defence Law of 1835, and other acts of similar character. This act has been held in the lower courts to be constitutional; Loewi v. Haedrich, 8 W. N. C. 70; Cox v. Walton, Id. 360; Dorff v. Matthews, 36 Leg. Int. 382.

Mr. Justice GORDON delivered the opinion of the court February 14 1881.

In Sharpless v. Ziegler, 11 Norris 467, we held that under the Act of 17th of March 1869, where the affidavit followed in general terms the wording of the statute, it was a sufficient warrant to the prothonotary to issue the writ of attachment, and that the court had no power to quash such writ, though it might, on proper cause shown, dissolve such attachment so far as it affected the goods of the debtor seized under it. We also called attention to...