I dissent on the ground that a witness in this proceeding is deprived of his liberty without *Page 111 due process of law in violation of the Federal and State Constitutions.
Physical restraint is not essential to constitute, in law, the act which deprives the citizen of his liberty. The Constitution equally prohibits the interference, without due process of law, with the right of privacy, the right to keep from the general public business methods and secrets, the right to the custody of books, papers and correspondence and the general right to shut out the world from private affairs.
The procedure authorized by the act under consideration does not, in my opinion, constitute due process of law. The general purposes of the act are praiseworthy, but the legislature, in seeking to restrain monopolies, must not invade the constitutional rights of the citizen. The object of the act before us is, in brief, to prevent monopolies, to inflict penalties and to enable the attorney-general to "secure testimony." As the act deals with penalties it must be strictly construed.
It is only necessary for the attorney-general to state that "he has determined to commence an action or proceeding" under the act, and to "simply show upon his information and belief that the testimony of such person is material and necessary," to entitle him to an order for the examination of any witness or witnesses he may think proper to name, and for the production of such books, papers, etc., as he may indicate. This act, in terms, provides that the provisions of the Code of Civil Procedure relating to the application for an order for the examination of parties, or proposed parties, and witnesses before the commencement of an action, and the method of proceeding on such examination, shall not apply. (Code of Civ. Pro. §§ 870 etseq.) This is a striking feature, as it discloses the legislative intention to allow parties proceeding under the act to prosecute an examination untrammeled by the wise restraints imposed upon private litigants.
I am of opinion that the Code of Civil Procedure furnishes an ample remedy to the attorney-general in the premises.
The act and the papers upon which the attorney-general moves disclose that this proceeding is not for the purpose of *Page 112 framing a complaint, or preserving the expected testimony, but is "to secure testimony," as is declared in the title of the act.
It is very clear to my mind that the ommissions from the act of 1899, of certain provisions contained in the act of 1897, indicate the legislative intention to authorize the attorney-general to make a general investigation, an unlimited examination, in seach of evidence.
The legislature, even clothed as it is with great and undefined powers, cannot authorize such a general investigation. It is prevented by those constitutional barriers which stand between the liberty of the citizen and the tyranny of arbitrary legislative power. It has been well said that the protection of this right "is the very essence of constitutional liberty and security." (Boyd v. United States, 116 U.S. 616.)
The act of 1899 subjects the citizen to an ex parte examination, without the aid of counsel, in a proceeding which may result in the attorney-general bringing an action in which he may be named as a party defendant; he is compelled to answer such questions as may be put to him, whether they incriminate him or not; he is required to produce such papers, documents and books as the attorney-general indicates, whether they contain incriminating evidence or not; he is forced to sign and swear to a deposition that lacks the quality of evidence and is not to be read in the contemplated action or any pending case.
I have referred to this proceeding as a general investigation, an unlimited examination, but it may well be styled a "fishing expedition."
Under the old equity practice a bill of discovery that sought an examination along the lines of the act of 1899 would have been dismissed as a "fishing bill." (Story's Equity Pleadings, § 325, and cases cited.)
The provisions of the Code, excluded by the act of 1899, are a substitute for the old bill of discovery. I am unable to see any analogy between the examination under the act of 1899 and the compulsory examination of a witness at a trial, *Page 113 or of a debtor in proceedings supplementary to the execution. To my mind the distinction is self-evident and can be made no plainer by argument.
I find nothing in the cited case of Interstate CommerceCommission v. Brimson (154 U.S. 447) that supports such legislation as the act of 1899. A reference to the Interstate Commerce Law and the case above cited will show that the latter is clearly distinguishable from the proceedings at bar.
The Constitution of the United States confers upon Congress the power to regulate commerce among the several states. Carriers engaged in interstate commerce, having in many instances been guilty of unjust charges, discriminations or preferences in respect to property, or persons transported from one state to another, Congress, in the exercise of its constitutional power passed chapter 104, U.S. Statutes, 1887, entitled, "An act to regulate commerce." This act was amended by chapter 382, 1889; chapter 128, 1891.
This act of 1887, as so amended, provided at length certain rules and regulations as to the conduct and procedure of common carriers, calculated to remedy the evils to which reference has been made.
It also created the Interstate Commerce Commission, composed of five commissioners.
The commission was given authority to inquire into the management of the business of all common carriers subject to the provisions of the act and to require by subpœna the attendance and testimony of witnesses and the production of all books, papers, etc., relating to any matter under investigation.
The act further provided that in case of disobedience to a subpœna, the commission, or any party to a proceeding before it, might invoke the aid of any Circuit Court of the United States in requiring the attendance and testimony of witnesses and the production of books, papers, etc. The act also contained provisions for the framing of issues by complaint and answer to be tried by the commission. Also for the taking of depositions in any proceeding "depending before the commission *Page 114 * * * at any time after a cause or proceeding is at issue onpetition and answer."
There are provisions for findings of fact, conclusions and final order; the findings are made "prima facie evidence as to each and every fact found."
In case any common carrier neglects to obey the final order of the commission, the United States Circuit Court on petition of the commission, or person interested, is required on short notice to "proceed to hear and determine the matter speedily as a court of equity, and without the formal pleadings and proceedingsapplicable to ordinary suits in equity, but in such manner as to do justice in the premises."
In the case cited, the commission sought to compel the attendance and testimony of certain witnesses who had refused to testify by invoking the provision of the Interstate Commerce Act authorizing the Circuit Court of the United States to order witnesses to appear and testify and produce books, papers, etc.
The persons proceeded against insisted that this provision was repugnant to the Constitution of the United States as imposing on judicial tribunals duties not judicial in their nature.
The court, in holding that the duties imposed were judicial, stated that the fundamental inquiry on the appeal was "whether the present proceeding is a `case' or `controversy' within the meaning of the Constitution and the statutes conferring jurisdiction upon the United States Circuit Courts."
The court, after citing a number of authorities, uses this language (p. 475): "So, in Smith v. Adams (130 U.S. 173), Mr. Justice FIELD, speaking for the court, said that the terms `cases' and `controversies' in the Constitution embraced `the claims or contentions of litigants brought before the courts for adjudication by regular proceedings established for the protection or enforcement of rights, or the prevention, redress or punishment of wrongs.' Testing the present proceeding by these principles, we are of opinion that it is one that can properly be brought under judicial cognizance." *Page 115
The court further said (page 476) that it was the duty of every citizen to appear and testify and produce books, papers, etc., "if the testimony sought and the books, papers, etc., called forrelate to the matter under investigation," etc.
The court (at page 478) thus alludes to the fact that these witnesses were called to testify in a judicial proceeding whereissues had been framed:
"* * * Why is not this proceeding judicial in form and instituted for the determination of distinct issues between the parties, as defined by formal pleadings, a case or controversy for judicial cognizance within the meaning of the Constitution? * * * As the issues are so presented, as the judicial power is capable of acting on them finally, as between the parties before the court, we cannot adjudge that the mode prescribed for enforcing the lawful orders of the Interstate Commission is not calculated to attain the object for which Congress was given power to regulate interstate commerce."
It thus appears that the Interstate Commerce Commission is a judicial body authorized to try issues, framed under formal pleadings, and make findings of fact and conclusions; that its subpœnas and final order are enforced by the Circuit Court of the United States; the final order by a judgment rendered in a most summary mode of procedure on the issues framed in the commission.
It is apparent from a carefnl study of the able and elaborate opinion of Mr. Justice HARLAN, that the Supreme Court of the United States compelled these witnesses to testify and produce books, papers, etc., for the reason that the commission is a body engaged in the judicial work of trying issues framed under formal pleadings, and that the testimony and the books, papers, etc., related to the matter thus under investigation.
These witnesses were not called upon to sign and swear to depositions in an ex parte examination, having no quality of evidence and not to be read in any judicial proceeding, but they were required to testify in a pending judicial inquiry which would result in a final order setting in motion the summary powers of the United States Circuit Court under the *Page 116 Interstate Commerce Act. The case cited lacks, in my judgment, every essential feature of the legislation and proceedings now under consideration.
The prevailing opinion very fairly and clearly states the important question in this case as follows: "Is the state itself, when a litigant, not to establish a mere right of property, but a cause of public justice, limited by its own constitution to the procedure that ordinarily prevails in controversies between individuals, or has it the power through its legislature to authorize testimony to be taken in order to aid its attorney general in attempting to enforce its policy as a political community and to promote the general welfare by proceedings in its courts of justice?"
The prevailing opinion holds that the state has this power.
To accord this right to the state, through its legislature, is to permit it to override the Constitution, to place in jeopardy the liberty of the citizen, to subject him to general and unlimited examinations, and the inspection of books, papers, etc., unknown to the common law or our modern procedure.
The beaten paths are best and the eliciting of facts according to the course of practice in courts of law and equity is safe and affords an ample remedy to the state as well as to the citizen.
The interests involved in this litigation are, comparatively speaking, of little importance, but the general principle now sought to be established is in its effects far-reaching and portentous.
I vote for affirmance.
PARKER, Ch. J., MARTIN, LANDON and CULLEN, JJ., concur with VANN, J.; O'BRIEN, J., concurs with BARTLETT, J.
Ordered accordingly. *Page 117