I concur with Justices Landon and Merwin in the conclusion tliat they have reached, that the Legislature has power to confer upon a justice of the Supreme Court authority to'issue an order like the one in question, and that the power so conferred is a judicial power.
I also concur with Mr. Justice Merwin in the conclusion that he has reached, that the affidavit of the Attorney-General is insufficient under the statute.
I cannot concur with Mr. Justice Landon in holding that a witness cannot question the constitutionality of the act, or the legality of the proceedings by which it is proposed to bring the witness before the court or referee. This is not a case where the witness raises a question as to whether the party subpoenaing him has or has not a case, but where he raises the question as to whether the law under which the proceedings are taken is or is not in fact a valid law, and also whether the proceedings to bring him before the court or referee have been legally taken under such law, just as he might •question the regularity of attachment proceedings brought against him to compel his attendance in court in any action.
Compelling a person to attend before a court or magistrate and give evidence is a restriction upon that person’s liberty of action, hut when done pursuant to the law of the land is unobjectionable and is a necessary interference with the liberty of the person for the purpose of the due administration of justice, and is for the common good of all. But every person has a right to insist that he shall not be taken from his lawful pursuits and restricted in his freedom of action except by lawful authority ; hence, he is permitted to question whether a statute, under whose authority it is proposed to interfere with his liberty of action, is a valid or void statute, whether in fact it constitutes a part of the law of the land, and also to question whether, assuming it to be a law, the proceedings *292against him have been duly and regularly taken, and the raising of such questions by him is not interfering with the merits of the case or determining whether the party subpoenaing him has or has not a good cause of action.
The majority of the court having reached the conclusion that the-order herein was properly vacated because of the insufficiency of the moving papers, and, hence, it being unnecessary to discuss the other questions raised in this case, under the well-settled rules of the court that a question of the constitutionality of a statute will not be passed upon unless necessary for the decision of the case, I refrain from discussing those questions, although it is to be regretted that the substantive parts of the statute under which these proceedings are taken are not passed upon.