I dissent from the conclusion reached by a majority of the court to the effect that the senate committee has not jurisdiction to compel the respondent to answer the questions which he has refused to answer or to require the production of the books and papers which he has been subpœnaed to produce.
I agree that section 856 of the Code of Civil Procedure is constitutional. It does not seem to me necessary to discuss whether or not it would be valid in the absence of any provision for notice to the witness before the issue of a warrant against him, as I think the language of the section fairly imports the requirement of such notice. *Page 132
As to the questions propounded to Mr. Barnes, it seems to me perfectly clear that he can be absolved from the obligation to answer them only on the ground that they were illegal or not pertinent to the investigation being conducted by the committee. A witness subjects himself to the procedure prescribed by section 856 of the Code if he "refuses without reasonable cause to be examined or to answer a legal or pertinent question." I think that the questions put to Mr. Barnes were both legal and pertinent. They were designed to ascertain whether the witness had paid anything for his stock (amounting to about 750 shares) in the J.B. Lyon Company. The evidence already taken by the senate committee showed (according to an affidavit in the appeal book) that this corporation had been awarded a large quantity of printing by the county of Albany without public bidding therefor and had also done a large amount of city printing. No one denies the right of Mr. Barnes to hold capital stock in this printing company or to acquire it for any particular sum or even by gift. In view, however, of his proved position and influence as the political leader of the party in power in Albany, and in view of the alleged favoritism shown by the public officials toward the J.B. Lyon Company, might not the committee obtain light as to the necessity of remedial legislation in the premises by ascertaining the precise circumstances under which Mr. Barnes acquired his stock? I think so. It might not be possible to legislate against the stockowner; but the awarding of contracts could be regulated by law so as to prevent the public business from going to corporations whose stock had been so acquired or was so held as to justify the inference that political influence would prevail over the public good and thus lead to favoritism and a lax discharge of contract obligations. I do not say that such conditions actually exist in the present case; I merely assert that they are conceivable; and the answers to the committee's questions might have shown what was the *Page 133 fact. The test as to their pertinency — which is here the equivalent of relevancy — is whether the answers could be such as to aid the committee in discharging its duties; in other words, could they help it to decide whether any new laws were needed to deal with the evils disclosed, and if so what laws? Thus tested, the propriety of the questions seems to me to be established.
But it is said that the committee knew all it needed to know on the subject when Mr. Barnes admitted that he owned about 750 shares, and that it could not aid the committee in framing its report to the legislature to know in what manner Mr. Barnes acquired his stock in the J.B. Lyon Company. I cannot assent to this proposition at all. The gradual acquisition for full value of a substantial interest in a corporation which happened to have business with the municipal government would by no means warrant the unfavorable inferences which might be drawn from the gratuitous bestowal of a large block of stock upon a powerful political leader. The mode of acquisition would make all the difference in the world. Nor do I understand it to be a rule controlling the conduct of a legislative investigation having remedial legislation in view that cumulative evidence cannot be taken. The committee itself may properly decline to receive further proof on a given subject because satisfied that it already has sufficient to enable it to arrive at a satisfactory conclusion; but if it chooses to seek further, the evidence is not illegal or irrelevant merely because it tends to confirm or corroborate or elucidate what has gone before. The "legal and pertinent" questions which the Code requires a witness to answer need not be essential to the inquiry; it is enough if they are appropriate to the end in view and do not infringe upon any right of the witness.
It is conceded in the prevailing opinion that the refusal of Mr. Barnes to produce or allow to be produced the corporate books of the Journal Company designated in *Page 134 the subpœna duces tecum cannot be supported on any other ground than that the committee already had all the information concerning the relations of that corporation with the city and county departments which was necessary to enable the committee to frame such recommendations for legislation as the public interest might require; and it is held that to permit the inquiry to proceed to the desired length would make it offensively inquisitorial. I do not believe that the court should substitute its judgment for that of a legislative investigating committee as to the quantum of the evidence which it is expedient to take on any particular subject; and the observations which have been made as to cumulative oral evidence apply equally to the production of these papers. The fact that papers thus called for may contain entries relating to the private affairs of the witness has not been deemed a valid objection. (Burnham v. Morrissey, 14 Gray, 226.) "We know of no rule of law," said the Supreme Judicial Court of Massachusetts in the case cited, "which exempts any person from producing papers material in any inquiry in the course of justice, merely because they are private." Furthermore, it was aptly suggested in the same opinion that if the material entries "were shown to be mingled with others not relating to the matters inquired of, which were private in their nature, such parts only as were relevant might have been exhibited and the other protected from exposure." Assuming, as we are bound to assume, that the committee was actuated only by proper motives in the exercise of its functions, this course could have been followed in the present case with reference to any purely private entries in the books of the Journal Company.
The abuse of the power of official investigation for purposes other than those contemplated by law is a detestable practice calling for the sternest reprobation by all those authorized to deal with it. I find nothing in this record, however, which seems to me to justify the court in holding that the senate committee has attempted any *Page 135 such abuse or has exceeded its jurisdiction in any respect. This is an important case and for the reasons which have been stated I feel bound to record my dissent from the decision about to be made, in the hope that it may have some influence in preventing any further extension of the doctrine of the prevailing opinion in limiting the evidence receivable in a legislative investigation.
HISCOCK, CHASE and COLLIN, JJ., concur with GRAY, J., as to questions propounded to witness, and with WERNER, J., as to the constitutionality of the statute; CULLEN, Ch. J., and WILLARD BARTLETT, J., read dissenting opinions.
Order affirmed.