In re Barnes

• Decision Date: 16 January 1912
• Citation: 204 N.Y. 108,97 N.E. 508
• Parties: In re BARNES.
• Court: New York Court of Appeals Court of Appeals

204 N.Y. 108

97 N.E. 508

In re BARNES.

Court of Appeals of New York.

Jan. 16, 1912.

Appeal from Supreme Court, Appellate Division, Third Department.

In the matter of the application to punish William Barnes, Jr., for contempt in not answering questions propounded by the Senate Committee, composed of Howard R. Bayne, chairman, and others. From an order of the Appellate Division (132 N. Y. Supp . 908) reversing an order of commitment made at Special Term and denying a motion for commitment, the parties aggrieved appeal. Affirmed.

J. W. Osborne, for appellant.

Wm. M. Ivins and Edgar T. Brackett, for respondent.

GRAY, J.

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 21, 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 business of the Journal Company, a corporation of which the witness was the president. He raised no other question, except with relation to the right of the committee to ask the questions, or to compel him to submit the books. Thereupon an order was granted by a justice of the Supreme Court, which required Barnes to show cause, at a time and place named, why a warrant should not issue for his commitment to jail, until he answered the questions and produced before the committee the books specified. Upon the hearing, on the return to the order, it was ordered that a warrant issue committing the witness, until he answered certain five of the questions propounded and produced the books of the Journal Company, showing its business ‘with various departments of the city and county of Albany and with persons and corporations transacting business with said city and county for the past ten years.’ Barnes alone appealed from this order, and thus the judicial inquiry is restricted to the pertinency of the five questions, and to the propriety of compelling the production of the corporate books.

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 attending * * * 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. 98,93 N. Y. Supp. 711, where the Appellate Division in the Second Department had held that the section operated to deprive the witness of his liberty without due process of law, because it did not provide for notice to him and for an opportunity to be heard. Previously the General Term in the First Department, in Matter of McAdam, 7 N. Y. Supp. 454, 456,¹ had upheld the consitutionality of the section. In that case Justice Van Brunt, speaking for the court, held that ‘the practice of summary commitments has prevailed ever since the Revised Statutes were adopted. * * * Such a procedure in the case of a witness has been recognized for a sufficient length of time to bring it within the category of ‘due process of law.” The court below held itself ‘constrained to follow the Grout Case, as the latest decision of a court of co-ordinate jurisdiction.’ This question, therefore, first presents itself to us and I am of the opinion that Mr. Justice Kellogg, at the Special Term, correctly held the provisions of the section to be constitutional. In his view, and I think it the correct one, the proceeding to punish a contumacious witness was always summary and expeditious, and necessarily so, in order to prevent delay in the administration of justice. The substance of this section of the Code was taken from the Revised Statutes (2 R. S. 401, § 47), and there never has been any limitation of the law, with respect to the witness, requiring notice preliminary to his commitment for contempt (1 Rev. Laws 1813, p. 457, § 5, and Laws of 1807, c. 130, § 4). This statute is, and always has been, a valuable instrumentality in the administration of justice and the enforcement of laws. Punishment for contempt by summary conviction, either upon a rule to show cause, or by attachment in the first instance, was deemed at common law to be inherent in courts of justice and legislative assemblies. See Yates v. Lansing, 9 Johns. 395-416, 6 Am. Dec. 290; 4 Blackst. Com. 286. As a principle of the common law of England, it became a part of our common law and in that principle is found the source of the provision in the Revised Statutes,in which section 856 originated. The adoption of the provision should justly be regarded as not contravening any constitutional provision. Until the decision in the Grout Case, supra, its constitutionality had not been questioned by any decision, of which I am aware.

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, 317, 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, 479,2 N. E. 615,52 Am. Rep. 49. 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 elaboration of the question I am unhesitatingly of the opinion that the provisions of section 856 are constitutional and valid.

That each house of the Legislature may punish contempts 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.’

[1] 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...