I vote for the reversal of the order of the Appellate Division and the affirmance of the Special Term. I concur with Judge GRAY in the view that the provisions of section 856 of the Code of Civil Procedure do not violate the Constitution by depriving the respondent of due process of law. The antiquity of those or similar provisions of the statutes of this state is cogent, if not conclusive evidence, of their constitutionality. In this case the respondent was proceeded against by order to show cause. Personally I do not believe that the proceeding authorized by the Code is punitive in the proper sense of that term, but solely a method of enforcing obedience to a duty imposed upon the respondent by law to give testimony before the committee of the senate. A very clear exposition of the nature of such proceedings is to be found in Application of Clark (65 Conn. 17). In this view notice was not necessary. *Page 129 The case is analogous to that of an attachment against a witness who has failed to respond to a subpœna. Such an attachment is granted ex parte and the witness subjected to arrest under it. If granted improperly, or if the statements on which it is granted are false, the witness may obtain relief by having the attachment vacated and redress by action against the parties at whose instance the proceeding was instituted. So also in that and in the present case the party might obtain release on habeas corpus. (Matter of Depue, 185 N.Y. 60.) I think my brother WERNER is in error in supposing that section 47 of the Revised Statutes (2 R.S. 401), the progenitor of section 856 of the present Code, related only to disobedience committed in the presence of the court, at least, in one instance, that of a person required to attend as a witness before a commission by subpœna issued from another state or county. The party requiring the testimony, on an affidavit of its materiality, would obtain from a judge of the Supreme Court or county judge a summons for the person to attend as a witness (2 R.S. §§ 29, 30, 31, pp. 307, 308), and under sections 44 and 47 (2 R.S. 401) the judge issuing the subpœna was authorized to commit to jail the witness who refused to answer. I am also at a loss to understand how the legislature, by amending the Code of Civil Procedure, divested itself of its inherent power to commit a witness for disobedience to its process. I know of no constitutional or legislative provision effecting this result.
The respondent had a hearing before the committee of the senate appointed pursuant to a joint resolution of the legislature, which decided that the questions were material and should be answered. The legislature could have devolved on this committee itself the power to commit the respondent until he answered the questions propounded to him, if the questions were material and proper (People v. Learned, 5 Hun, 626; People ex rel.McDonald v. Keeler, 99 N.Y. 463), while if improper and beyond the jurisdiction *Page 130 of the committee, relief could be obtained by habeas corpus. I cannot see how the present proceeding is rendered unconstitutional because there is added the further safeguard of an application to the court, even though that application be exparte. In Matter of Superintendent of Poor of Westchester Co. (6 App. Div. 144) it was held that the Supreme Court could not punish as for a contempt the failure of a witness to appear in answer to a subpœna issued by a board of supervisors nor issue an attachment against the recalcitrant witness for that purpose, but should issue a warrant directing the arrest of the witness and his production before the board.
If I err, however, in this view, and the proceeding against the respondent is to be deemed one to punish him for contempt, then the mode of procedure is controlled by the provisions of the Judiciary Law, which require that, except in certain specified instances, which do not include the one before us, the proceeding must be instituted by either an order to show cause or by an attachment. (Judiciary Law, §§ 753, 754, 755.) These provisions would seem in any aspect of the case to save section 856 of the Code from condemnation as unconstitutional, and, as already said, the proceeding before us was instituted by an order to show cause.
I concur in the opinion of Judge BARTLETT that the questions propounded to the respondent by the committee were legal and pertinent. I know of no principle by which testimony on the main issue can be excluded because cumulative. A court may limit the number of witnesses to be sworn on collateral issues, such as character, credibility and the like, but even then the power to so limit the testimony rests in the discretion of the trial court. Improperly limiting testimony may be regarded as error by an appellate court, but I cannot conceive that failure to limit testimony could be considered such, and it must be remembered that in this proceeding the senate committee stands at least in as favorable *Page 131 position as a trial court. Indeed, it is much more immune from review. The sole instance in which the courts are justified in interfering with an inquiry by the committee is when the inquiry extends beyond the subject-matter of its jurisdiction.
It is further to be observed that the testimony that the AlbanyEvening Journal received a percentage on the printing or advertising done by the Albany Argus was given by persons interested in a newspaper of opposite politics to those of theJournal, and though the committee may think that evidence is clear, the object of the investigation is that the legislature may act. It may be that some members of the two houses will not credit the evidence of political opponents, but deem their statements political slanders. Therefore, plainly, the committee had the right to discover from the books of the Journal itself whether the payments referred to had in fact been made, and it was not obliged to take statements of the contents of those books but was entitled to see the originals, in conformity with the rule which has always prevailed in courts, that the best evidence must be produced and that the best evidence of the contents of written papers is the papers themselves.