In re Hertle

McLaughlin, J.: .The appellant is the president-of the borough of Manhattan in -the- city of. Mew York. . By reason of certain charges which wére ' published concerning the management-of his office,- lie requested the mayor of the city of Mew York to direct the commissioners, of .accounts to make an investigation of liis department.' The mayor did as requested, and the -examination was .entered upon and continued for some time, when the appellant was called as a witness, and after being duly sworn,' certain questions Were projiounded to him; by advice of counsel he declined to answer, substantially ■upon the ground that .the commissioners had no power to inquire — he holding, an elective office — in to-the policy of his administration that they had already made- a detailed examination, and for that purpose he had afforded them the fullest and freest access to all the ■ books, papers and-records in the office; that the facts'before them showed, as well as reports made, that the office was in. good condition, and that any further examination was unnecessary. The commissioners- of accounts thereupon applied ■ to the Special Term of this court, by an order- to show cause, for- a warrant committing him to jail for refusing to answer the questions''put to' him, and directing that he there remain until he submitted to answer such questions,- unless, in the meantime he were discharged according to law. The motion was granted, and. a warrant' of commitment issued, from which'lie appeals. ■ • ■ The examination of appellant was sought-under section 119'of the revised Greater Mew York charter, which he contends — through his counsel — if "construed to confer general powers on the commissioners of: accounts to conduct any examination which they deemed for the .best interest of the city, is unconstitutional, in that it is an attempt to confer judicial powers upon them.. This section of . the [719] charter, or so much of it as is pertinent to the question under review, reads as follows: “ The mayor shall appoint and remove at pleasure two persons who shall be commissioners of accounts, one of whom shall be a certified public accountant. It shall be their duty once, in three months to make an examination of the receipts and disbursements in the offices of the comptroller and chamberlain, in connection with those of all the departments and officers making returns thereto and report to the mayor a detailed and classified statement of the financial condition of the city as shown by such examinations. They shall also make such special examinations of the accounts and methods of the departments and offices of the city * * * as the mayor may from time to time direct, and such other examinations as the said commissioners may deem for the best interests of the city, and report to the mayor and the board of aldermen the results thereof. For the purpose of ascertaining facts in connection with these examinations, they shall have full power to compel the attendance of witnesses, to administer oaths and to examine such persons as they may deem necessary.” When the officé was first created (Laws of 1873, chap. 335, § 106) the duties of the commissioners, of whom' the president of the department of taxes and assessments was one, were to examine into the financial condition of the city and make and publish'k detailed statement thereof. They were also to make, from time to time, “ an examination of the expenses of the several departments and officers, and make such recommendations to the board of apportionment, and other officers, with reference thereto, and particularly with reference to salaries and duties, as they deem advisable.” This statute, as re-enacted by the Consolidation- Act (Laws of 1882, chap. 410, § 110), was amended so as to read substantially as above quoted, by chapter 516 of the Laws of 1884, which was re-enacted in the Greater New York charter (Laws of 1897, chap. 378,-§ 119, as amd. by Laws of 1901, chap. 466). It will be observed that by the amendment of 1884 the two persons appointed by the mayor were the sole commissioners of accounts, the president of the department of taxes and assessments noTonger being included, and the statement made by the commissioners of the financial condition of the city was reported to the mayor instead of being published as before. It will also be observed that [720] the power of the . commissioners was considerably ■ increased. Besides the'regular statements of the financial condition of the city, they were authorized to. make special'examinations at the may dr’s direction,.or of their own volition as they might “deem for the best interests of the city ” of the accounts and' methods of the various departments and report the results to the mayor. For ■ the purpose of making these examinations,-they were given power to 'examine witnesses, Which was much more extensive than was'necessary if the examination was designed simply for the purpose of ascertaining whether the accounts were properly kept: If this were the purpose it is difficult to imagine why so great a change was made by the . amendment and especially why ■ the ■ commissioners should have been clothed- with power “to compel the attendance of witnesses” and examine them under oath. Obviously this was not the purpose of the amendment. It was designed to' clothe -the commissioners with power to ascertain not only what the books of the office showed, but what they ought to show, by requiring witnesses to submit to an examination, to the end that the actual transactions of the office in all its details, as well- as every apt of the- officer himself and his subordinates and employees in connection therewith might be laid before the mayor. The fact that the office investigated is an elective one makes; no difference-because the statute applies just as much to an officer who is elected as it does to one who is appointed. The revised charter makes it the duty of the mayor to keep himself informed of the doings of the various departments of the city (§ 115, subd. 3), and that he. may properly discharge the duty thus imposed upon him he is authorized to direct the commissioners of accounts to make an examination, any time he sees fit. The examination thus, directed cannot be prevented by an assertion of the officer whose department is being investigated that' he holds the position by election • rather .than by .appointment or that the examination is unnecessary. The act, in my opinion, is not unconstitutional, and this was the view of the late General Term. (Matter of McAdam, 7 N. Y. Supp. 454.) ISTor does it confer, judicial powers upon the commissioners! The examination made by them, as well as their report, settles nothing except that it furnishes the mayor with accurate information ■ as to the state, condition and workings Of the office. [721] investigated. It is in no sense a judicial proceeding. They have no power to decide. (Matter of Armstrong v. Murphy, No. 2, 65 App. Div. 126.) In a great city like Mew York, working under a charter as complex as its charter is, .public policy requires that, every available means of examining the administration of the various departments and offices of the city government be utilized to their fullest extent and statutes having this object in view should be liberally construed. The fact that the Legislature-has seen tit to provide that an investigation may be made by a justice of the Supreme Court (Revised Greater N. Y. charter, § 1534), or by the board of aldermen (Id. § 54) is not of the slightest importance, because the Legislature had the ¡lower to provide .as it did in section 119 of the revised charter that an examination might be made by the commissioners of accounts at any time, at the request of the mayor. Meither of the examinations thus provided for is. exclusive, but each may be had separate and distinct from the other. Mor does it lie with the appellant to say that by reason of the examination already made, a further examination is unnecessary., The" determination of that question rests solely with the commissioners. They may pursue their investigation so long as the examination conducted by them, or the questions propounded to witnesses shall be relevant and pertinent to the subject-matter of their inquiry. The questions propounded to the appellant were relevant and pertinent and were a proper subject of investigation. If the foregoing views be correct,'then it follows that the order and warrant of. commitment should be affirmed, with ten dollars costs and disbursements. Ingraham, Clarke and Houghtor, JJ., concurred; Lambert, J., dissented.