Massachusetts v. Klaus

Sóott, J.: This is an appeal from an order of a justice sitting at Special Term denying a motion to issue a stibpoena requiring Rem — 800 — brandt Peale, a person within the State, to áppear and ¡testify in a criminal action pending in the State ¡of Massachusetts. Code of L'aws of The application was made under section 618a of the Criminal Procedure, which was added to thajt Code by 1902, chapter 94, and which reads as follows: “If a judge of a court of record in any State bordering on this State Which by its laws has heretofore made provision for commandingj persons Within its borders to attend and testify in criminal actions in this .State, certifies under the seal of such court that there is á criminal action pending in such court, wherein the defendant is charged with a crime, of the grade of a felony, ancl ¡that a person residing or being within this State i¡s believedi.tb be a material and necessary witness in such action, a judgie of a court .of record in this State, upon the presentation óf such certificate and such proof of the materiality and necessity of such witness as he may require, opportunity being given such witness to appear before such judge and be hjeard in opposition thereto, and upon request so to do by the clerk of the court issuing such certificate, shall issue and attách to such pertifi-1 testify ;he time n on whom such' ided by this chap-cate a subpoena commanding such witness to 'appear an in the court’ where such criminal action is pending at and place to be stated therein: If any perse subpoena has been served in the manner prov ter, having been tendered by the party asking for the subpoena the sum of ten, cents for each mile to bej traveled to and from- such court, and the sum of five dollars for each day that his ■ attendance is required, the number of days ■ to be specified in the subpoena, shall unreasonably neglect to • attend and testify at such court, he shall be punished in the manner provided for the punishment óf disobedience of any other subpoena issued from a clerk of a court of rpejord in this State, provided, however, that the law's of the ¡State in which the trial is to be held gives to persons coming in the State under such subpoena, protection from the service oí papers and arrest.” The motion was denied, as we gather, for! want of power arising from the supposed- invalidity of the provision for constitutional reasons,' the justice whe made tljej order appealed from,- as well.as a justice to whom a former japplica-tión had been made, following a decision of the Special Terra — 801 — in Matter of Commonwealth of Pennsylvania, (45 Misc. Rep. 46). By tlie subpoena applied for it was sought to procure the attendance of Peale in Massachusetts in September, 1910, and it may be that the criminal prosecution has already ended so that his attendance would now be useless. On this point the papers on appeal do not advise us, but even if such were the case we should deem it our duty to examine the question of the validity of the act because the Special Term decision already referred to will, unless overruled, probably serve to render the act nugatory. Appellate courts not infrequently pass upon questions affecting important public interests, even where in the particular case the question has become academic. (People ex rel. Hummel v. Reardon, 186 N. Y. 164.) The papers upon which the application for a subpoena was made seem to show that a case for its issuance was made' out under the terms of the statute, and we do not understand that the refusal to issue the subpoena rested upon the ground that the.case had not been brought within the statute. It is shown that Massachusetts has passed a similar though not identical statute, being contained in the Revised Laws, chapter 115, sections 12 and 13. So have Pennsylvania (See Matter of Commonwealth of Pennsylvania, supra); Vermont (P. S. chap. Ill, §§ 2280, 2281); Maine (R. S. chap. 133, § 12); New Hampshire (R. S. chap. 224, §§ 8, 9); Rhode Island (G-en. Laws, chap. 292, §§ 16, 11). So, if the Legislature of this State has in this instance passed an unconstitutional law, a number of other States have fallen into the same error. There can be no doubt that it is a duty which every man owes to society to give evidence when called upon to do so in a court of justice, with some few exceptions not relevant here. (3 Wigmore Ev. § 2192; Matter of Board of Aldermen, 68 Misc. Rep. 478, 481.) Such being the clear duty of the citizen it is beyond question that the State has the correlative power to compel him to perform that. duty, a power which is universally recognized and is exercised every day. Nor is the duty to give evidence, or the power to compel it to be given, limited to causes pending in the courts of the State. Witness our statutes under which persons within this State are required to give evidence in the form of depositions for use in — 802 — it settled that it is other States. We may, therefore, consider not an. objection to the statute under consideration ; that it requires a witness within this State to giye evidence for use in the courts of a foreign State. So far as concerns civil causes this can he accomplished by means of depositions taken within this State. In criminal prosecution, however,; in any State which bases its jurisprudence upon the common' law, the defendant is entitled to be confronted vjuth the jvitnesses 'against him, hence evidence taken in this State by deposition would be of no avail. (People v. Bromwich, 200 N. Y. 385.) Unless, therefore, there is power somewhere to compplj a witness to proceed from one State to another to testify! many guilty persons must necessarily escape due punishment for their crimes, and it is manifest that if thd power exists any-the witness is, and order or ubpoena. and the be Legist fere has own citizens and where it must be in the State within which where he can be served with the necessary < The question then resolves itself into one of power, only question is as to the power of the State to óompel a witness to cross its boundaries and proceed into another State to perform there his plain duty to society. It is thisj power' that the statute asserts, and which has caused the validity of the act to be called in question. It is a proposition hot to- be questioned that, except as limited by constitutional restrictions, State or Federal, the State acting through tl absolute and unrestrained power over its those who may be within its borders. This bras clearly pointed out and demonstrated in Ware v. Hylton (3 Dall. 199), which was decided in 1796. In State of Rhode Island v. State of Massachusetts, decided in 1838 (12 Pet. 657, 720), Mil. Justice Baldwin referred to the individual State as.: “Those States in their highest sovereign capacity, in the convention of thé people thereof, on whom, by the Eevolution, the prerogative! of the Crown and the transcendent power of Parliament deVplved, in a plenitude ■ -unimpaired by any act, and controllable i by no authority.” As was said in Livingston v. Moore (7 Pet. 469, 546): “ The power existing in every body politic is an absolute despotism. ”' • Wé take it to be' well and clearly sett ed that, except as limited by the Federal or State Constitution, t ié power of the State over persons within its confines, whether citizens or. — 803 — strangers, is absolute and plenary, and would extend even to banishment. In considering the validity of the act under consideration we are concerned only with the power of the State to enact it, and have nothing to do with the policy of the State in so enacting it. The question of comity, therefore, does not enter into our consideration because comity cannot confer power, but merely offers a reason for its exercise. It is a fundamental rule that a presumption of validity attaches to every statute of a State, and that such a statute is not to be lightly declared unconstitutional merely because it is novel, or because the court may be of opinion that it is opposed to natural justice and equity. (People v. Gillson, 109 N. Y. 389, 398.) The act under consideration is a State statute and is presumed to be warranted by the Constitution until the objector has been able to point out the specific provision of either the Federah Constitution or the State Constitution with which it is incompatible. (Black Const. Law [3d ed. Hornbook Series], § 17, pp. 35, 36.) It was suggested by the learned justice who wrote in Matter of Commonwealth of Pennsylvania (supra) that the enforcement of the act “ would deprive the proposed witness of his liberty without due process of Taw.” This objection, we think, is untenable. Any witness subpoenaed to attend a trial within the State is in the same sense deprived of his liberty, but we have never heard it suggested that the provisions of law providing for the summoning of witnesses and for enforcing their attendance were unconstitutional and void. In fact, under the act we are considering the proposed witness is afforded more protection in the way of due process than is a witness summoned to testify within the State, for he must be given notice and an opportunity to be. heard before a subpoena can be issued, and in addition is assured of ample indemnity for expenses, and immunity from the service of process while in the foreign State. This would seem to be due process of law in a very real sense. It is suggested by the respondent that the act contravenes the right of free ingress and egress of all citizens of the United States to the several States as secured by the Federal Constitution. It is conceded upon the brief, however, and the concession is a complete answer to the charge of unconstitutionality upon this — 804 — head, that the right of free ingress and egress was .never intended to enable a citizen of the United States to interfere with the orderly administration of justice within the territorial boundaries of the State, and that, as has been repeatedly held, when a citizen of the United States is within the boundaries of a State he is amenable to the constitutional laws of that State, and,that the only protection which the privileges and immunities clause of the .Federal Constitution affords him there, is that no State Legislature shall discriminate between him and the citizens of the State proper. For this there is ample authority. (Slaughter House Cases, 16 Wall. 36; Blake v. McClung; 172 U. S. 239.) This objection does not affect the act ■ we are now considering, even if the proposed witness be (as respondent claims to' be) a nonresident temporarily' present in the .State, for it applies impartially to persons “ residing or being ” within the State. Finally it is objected that neither the statutes of the' State nor the orders of the courts have any extraterritorial effect and, hence, that a person cannot be compelled to act or ordered to do any act without the boundaries of the State. The argument involves a non sequitur. The State does not undertake to impart extraterritoriality to its statute. It acts upon the proposed witness here,, within the State, while he is under its jurisdiction. It is quite immaterial what it requires him to do or where it requires him to do it, provided its power to direct his. movements has not been restricted by a paramount law. We have considered all the legal objections which have been suggested to the act under discussion, and have been unable to find that it violates any provision of either the State or Federal Constitutions. • As has • been said, we are not concerned with the policy of the State in enacting the law, but we may say, to avoid misconstruction, that in our view the act ⅛ one calculated to promote the ends of justicé,-and that there is no greater hardship in compelling a witness to trdVel from this State into an adjoining one than is involved in compelling him to travel from one end of the State to the other. It follows that - the justice at Special Term had power to entertain and grant the application. The act contemplates that the subpoena, if issued, shall be issued by a 'justice and not hy — 805 — the court. We shall, therefore, content ourselves with reversing the order appealed from, remitting the application to the Special Term to he acted upon by the justice sitting there. Ingraham, P. J., McLaughlin and Clarke, JJ., concurred;-Laughlin, J., dissented.; .