APPEAL by the People of the State of New York from an order of the Supreme Court, made at the New York Special Term and entered in the office of the clerk of the county of New York on the 29th day of June, 1910, denying a motion for the issuance of a subpoena pursuant to section 618a of the Code of Criminal Procedure.
Robert C. Taylor, for the appellant.
Francis X. Carmody and George A. McLaughlin, for the respondent.
This is an appeal from an order of a justice sitting at Special Term denying a motion to issue a subpoena requiring Rembrandt
Peale, a person within the State, to appear and testify in a criminal action pending in the State of Massachusetts. The application was made under section 618a of the Code of Criminal Procedure, which was added to that Code by Laws of 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 commanding persons within its borders to attend and testify in criminal actions in this State, certifies under the seal of such court that there is a criminal action pending in such court, wherein the defendant is charged with a crime of the grade of a felony, and that a person residing or being within this State is believed to be a material and necessary witness in such action, a judge of a court of record in this State, upon the presentation of 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 heard in opposition thereto, and upon request so to do by the clerk of the court issuing such certificate, shall issue and attach to such certificate a subpoena commanding such witness to appear and testify in the court where such criminal action is pending at the time and place to be stated therein. If any person on whom such subpoena has been served in the manner provided by this chapter, having been tendered by the party asking for the subpoena the sum of ten cents for each mile to be 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 of disobedience of any other subpoena issued from a clerk of a court of record in this State, provided, however, that the laws 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 of 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 who made the order appealed from, as well as a justice to whom a former application had been made, following a decision of the Special Term
in Matter of Commonwealth of Pennsylvania (45 Misc. 46). By the 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 175, sections 12 and 13. So have Pennsylvania (See Matter of Commonwealth of Pennsylvania, supra); Vermont (P. S. chap. 111, § § 2280, 2281); Maine (R. S. chap. 133, § 12); New Hampshire (R. S. chap. 224, § § 8, 9); Rhode Island (Gen. Laws, chap. 292, § § 16, 17). 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. 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
other States. We may, therefore, consider it settled that it is not an objection to the statute under consideration that it requires a witness within this State to give evidence for use in the courts of a foreign State. So far as concerns civil causes this can be 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 with the witnesses 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 compel 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 the power exists anywhere it must be in the State within which the witness is, and where he can be served with the necessary order or subpoena. The question then resolves itself into one of power, and the only question is as to the power of the State to compel a witness to cross its boundaries and proceed into another State to perform there his plain duty to society. It is this power that the statute asserts, and which has caused the validity of the act to be called in question. It is a proposition not to be questioned that, except as limited by constitutional restrictions, State or Federal, the State acting through the Legislature has absolute and unrestrained power over its own citizens and those who may be within its borders. This was 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), Mr. Justice BALDWIN referred to the individual State as: 'Those States in their highest sovereign capacity, in the convention of the people thereof, on whom, by the Revolution, the prerogative of the Crown and the transcendent power of Parliament devolved, in a plenitude unimpaired by any act, and controllable 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.' We take it to be well and clearly settled that, except as limited by the Federal or State Constitution, the power of the State over persons within its confines, whether citizens or
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 Federal 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 law.' 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 ...