Kanter v. Clerk of the Circuit Court

Mr. Presiding Justice Waterman delivered the opinion of the court. The statute to regulate the civil service of cities, sections 12 and 14, provides: “ In the course of an investigation of charges, each member of the commission shall have the power to administer oaths * * * and shall have power to secure by its subpoena * * * the production of books and papers relevant to such investigation.” We are of the opinion that in accordance with the rule laid down in Lester v. The People, 150 Ill. 408, and Bentley v. The People, 104 Ill. App. 353, it was incumbent upon the petitioners in this case to show that the books and papers which they sought to compel the production of, contained matter relevant to the investigation then being or about to be conducted by the petitioners. Such showing was made by the petition; necessarily the statements of the commissioner were made upon information and belief; more than this was not required. If none or no part of the books and papers mentioned in the petition were in the possession or under the control of the respondents, or either of them, either might have so replied. As to a certain diary kept by Samuel Kanter such answer was made by David Weber; while in another portion of the answers complaint is made that the order to produce deprives respondents of the possession of certain books therein named. If the order to produce was too broad, or as to a portion thereof compliance was not in the power of either respondent, an application for a modification thereof might have been made. The too great scope or indefiniteness, of the order, if such there were, was no excuse for not complying with the portion that was certain and definite. Tolman v. Jones, 114 Ill. 147; Berkson v. The People, 51 Ill. App. 102; same, 154 Ill. 81; Clark v. Burke, 62 Ill. App. 252; same v. same, 163 Ill. 334. Appellants contend that the civil service commission was engaged in an investigation for the purpose of determining, among other things, whether a criminal prosecution of appellants should not be begun because of appellants’ conduct in respect to the examination for lieutenants of police; and that consequently it had no “ legal right to summon respondents to produce their books and papers.” We are not aware of either statute, rule or principle of law that forbids the issue of a subpoena duces tecum, to anybody; whether the person so summoned will be compelled to obey the process is another matter. Had appellants complied with the writ and produced the books called for, whether thereafter they could have been, held in a criminal proceeding for conduct- disclosed by, or upon evidence taken from such books, is a matter not prerented by these appeals. No such question as arose in United States v. Edgerton, 80 Fed. Rep. 374, arises in either of the cases now before the court. The principal and important contention presented to us is whether the constitutional right of appellants not to furnish evidence which might tend to incriminate them was violated by the final order of the court below. The constitutional exemption from compulsion in this regard extends to all proceedings sanctioned by law. Neither civil nor criminal courts, quasi-judicial tribunals, grand juries, commissioners, courts martial or inquisitors of any kind can compel a person to give evidence which may tend to convict him of a criminal offense. IE either of the respondents had answered that the production of the books and papers called for, or any designated portion thereof, would tend to convict him of a criminal offense, he could not have been compelled to bring forward anything that would have such tendency. Counselman v. Hitchcock, 142 U. S. 547; Boyd v. United States, 116 U. S. 616; State v. Simmons Hardware Co., 15 L. R. A. 676. Broad and sweeping as is the constitutional provision it is against compulsion only. The right of free speech, even to those criminally accused, has not been taken away by the constitution; and any man suspected or accused of crime may freely say, exhibit and produce what he will; he may waive his constitutional right, talk and disclose as he sees fit. The respondents have neither obeyed the order of the court to produce the books and papers called for, nor said that to do so would be to give evidence tending to incriminate them. A portion of the answers made by respondents are in this regard as follows: “ And this respondent, further answering, says: 1. That the petitions upon which said order is based were and are insufficient to give said court power and jurisdiction to enter said order. 2. That the petitions show upon their face that if the facts set forth therein are true, such facts would tend to criminate this respondent and subject him to prosecution under the criminal laws of the State of Illinois, and would compel him to give evidence against himself in a criminal case; that for these reasons this respondent is not bound to furnish incriminating evidence against himself.” Not for these reasons, but because of the constitution, neither of the respondents “ was bound to furnish incriminating evidence against himself.” Whether the “ facts ” set forth in the petition were true or false was immaterial to the right of each respondent to refuse to furnish incriminating evidence against himself. To avail himself of such right he had only to claim it upon such ground. The right of a witness to refuse to answer incriminating questions or to produce incriminating documents is personal; it can not be claimed for him by a mere party to the proceeding. Wharton on Evidence, sections 533-536. A person can not avail himself of such right by mere silence or mere refusal to obey a subpoena duces tecum. His refusal must be by him placed upon the ground that to do so would be to furnish evidence tending to incriminate himself. That the final order reads, “ I do hereby adjudge the said David Weber * * * guilty of contempt” is inconsequential. If it had read “ The court does hereby adjudge,” or “ It is hereby adjudged,” it would have been no more and no less the sentence of the law than it is in the record written out by the clerk. Judges do not make the law. they declare it; they do not punish offenders against its majesty; the law does this. Judges and courts are but instruments for carrying into effect the law of the land; they are usually vested, in matters of contempt, with discretion as to the amount and kind of punishment. The proceeding was properly entitled in the name of the people. Rawson v. Rawson, 35 Ill. App. 507; Stearnes v. Joy, 41 Ill. App. 163. If it be the case, as is urged, that the order to produce was in any respect uncertain, so that either of the respondents was not informed as to what books or papers were meant thereby, answer to that effect might have been made and the court could, not properly have inflicted punishment for a failure to produce that not described or pointed out in such manner that the respondent was informed what was, asked for. The refusal of each respondent was willful, whether based upon advice of counsel or a misapprehension of the law. Lansing v. Easton, 7 Paige, 364. Nor was the punishment excessive. The respondents, in respectful language, under the advice of learned and distinguished counsel, refused to obey its order. What line short of $500 would have been adequate and not excessive is not suggested. As before stated, possession of a portion of the books called for was in effect admitted by the answers; while, save as to a diary kept by Samuel Kanter, it did not appear that either respondent was unable to comply with any part of the order of court to produce books and papers, yet each refused in toto. The fine was properly made payable to the clerk of court. Appellants do not suggest that they (and have no reason to) fear such payment will not be a discharge of the penalty imposed. A judgment in proceedings for contempt sufficiently sets forth the cause for which the final order was entered, if there appears upon the face of the order the general object and purpose of the proceeding, together with the finding of the court connected by apt reference to the moving papers. Vol. 4, Ency. of Pleading & Practice, 798; Fisher v. Hayes, 7 Fed. Rep. 96; Seaman v. Duryea, 11 N. Y. 324. The punishment imposed for the contempt was a fine of $500 upon each offender. The commitment to jail until the fine should be paid was not by way of, nor a punishment, but a means adopted for enforcing payment of the fine. In the matter of Peter Bollig, 31 Ill. 88, the Supreme Court held that while a justice of the peace had no power to try any person except as a court of inquiry, for any offense punishable with imprisonment, he had power to order that parties convicted before and fined by him should be confined in the county jail until the fine and costs were paid; that the imprisonment “ is a mode provided for collecting the fine and costs * * * is but an incident of the fine.” In Brown v. The People, 19 Ill. 613, it was held that “ a justice of the peace who has imposed a fine for contempt of his court can imprison the party till the fine and costs are paid.” See Kennedy v. The People, 122 Ill. 649. That where a fine is imposed, it is the punishment ordered, and the commitment is but an incident, is an established doctrine of the common law. United States v. Hudson, 7 Cranch, 32-34; Ex Parte Watkins, 7 Peters, 568-575; Kane v. The People, 8 Wend. 203; Son v. The People, 12 Wend. 344; Harris v. Commonwealth, 23 Pick. 280; The Queen v. Dunn, 12 Ad. & Ellis, N. S. 1026; note Lord’s Journal, Vol. 47, p. 271; In re Yates, 4 Johns. 317, and 9 Johns. 396; Doubleday v. Sherman, 8 Blatchford, 45. There has long been the following section of the criminal code of this state: “ When a fine is inflicted, the court may order, as a part of the judgment, that the offender be committed to jail, there to remain until the fine and costs are fully paid or he is discharged according to law.” As a commitment to jail until an imposed fine be paid was warranted by the law, the statute may have been eriacted to call attention in the order of commitment to the right of the offender to be discharged under the provisions of Sec. 17-641, p. 1413, Starr & Curtis’ Statutes. As no person can be imprisoned if “ discharged according to law,” it is not apparent how the -words “ until he is discharged according to law ” can affect, add to or take from the order of commitment. It is very clear that the court could not by an order provide that a party should be imprisoned for a certain time or until a certain thing was done, although previous thereto he was discharged according to lawn Prior to the enactment of our indeterminate sentence statute most persons sentenced to the penitentiary were discharged according to law before the expiration of the term for -which they were sentenced. notwithstanding that the words, “ or until discharged, according to law,” may add nothing to an order of commitment, we are of the opinion that the concluding language of the final order of the Circuit Court was erroneous. The respondents were each fined $500, and each committed to jail, until his fine was paid, “ or until he and they and each of them be otherwise released pursuant to law.” The fines were separate; neither respondent was ordered to pay any part of the fine of the other. If one paid he was entitled to be discharged. If one were pardoned he would have thus been discharged according to law. Rapalje on Contempt, Sec. 162. By whatever course of events one became entitled by law to a discharge, he could not thereafter be retained because the other respondent was not then so entitled. Whether either party might not become entitled to be discharged under the statute concerning imprisoned paupers, it is not now necessary to consider. Proceedings for contempt as well as those resulting in a deprivation of the personal liberty of a subject are strictly regarded. 4 Ency. of Pleading & Practice; McDonald v. The People, 86 Ill. App. 558-560. An order of commitment to jail should be so definite and certain as to the continuance of the imprisonment that thereby the sheriff is with certainty informed as to when he is to set at liberty the subject of the order. The order of the court continuing the imprisonment of one in case of his failure to pay his fine until both should be (otherwise than by payment of fine) released pursuant to law should not have been made. McDonald v. The People, 86 Ill. App. 558-560. The judgment of the Circuit Court is reversed and the cause remanded.'