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In re Application to Punish Barnes

Supreme Court of New York, Appellate Division

November 29, 1911

In the Matter of the Application to Punish WILLIAM BARNES, JR., Appellant, as for a Contempt in Not Answering Certain Questions in the Matter of the Investigation of the Departments and Offices of the City and County of Albany by the Senate Committee Composed of Hon. HOWARD R. BAYNE, Chairman, and Others, Respondents.

APPEAL by William Barnes, Jr., from an order of the Supreme Court, made by a justice of the Supreme Court and entered in the office of the clerk of the county of Albany on the 20th day of November, 1911, directing a warrant to issue to the Albany county sheriff, commanding him to apprehend the appellant, and to commit him to jail until he answer certain questions and produce certain books and papers.


William M. Ivins and Edgar T. Brackett, for the appellant.

James W. Osborne and Arthur T. Warner, for the respondents.


Page 397


The only authority upon the subject holds that section 856 of the Code of Civil Procedure contemplates no notice to the alleged offender. We do not feel at liberty to overrule those cases. ( Matter of McAdam, 7 N.Y. Supp. 454, General Term, First Department, 1889; Matter of Grout, 105 A.D. 98, Second Department, 1905.) The question, therefore, is whether this section, so construed, violates the appellant's constitutional rights. In the case of criminal contempts it is provided by section 751 of the Judiciary Law (Consol. Laws, chap. 30; Laws of 1909, chap. 35) that if committed in the presence of the court the offense may be punished summarily; otherwise the alleged offender must have notice and time to prepare his defense. In the so-called civil contempts (Judiciary Law, § § 755, 757) a person cannot be punished for contempt until after he is brought before the court by warrant or an order to show cause and given an opportunity to be heard. The McAdam case, above cited, holds that although no notice is required the section is valid. The Grout case holds that the section is unconstitutional in that the defendant has had no opportunity to be heard. Adopting the construction placed upon the section by the above authorities, that no notice is contemplated, we are constrained to follow the Grout case, as the latest decision of a court of co-ordinate jurisdiction, that the statute is unconstitutional, and that the order should be reversed and the motion for commitment denied.

All concurred, except HOUGHTON, J., concurring in result in memorandum, and BETTS, J., dissenting in brief memorandum, and voting for affirmance, on opinion of Justice JOSEPH A. KELLOGG in the court below.


HOUGHTON, J. (concurring):

For the reasons pointed out by the learned court at Special Term, and particularly because requirement for notice can properly be read into the law, I think section 856 of the Code of Civil Procedure is not in contravention of either the Federal or State Constitutions. I do not think, however, that the questions propounded to Mr. Barnes with respect to his acquiring the J. B. Lyon stock and which he refused to answer were

Page 398

pertinent or material to the legitimate inquiries of the legislative committee, or that the necessity and propriety of producing the books of the Journal Company sufficiently appeared. On the 2d of September, 1911, the President of the Senate, pursuant to a concurrent resolution of the Legislature, appointed five Senators as a special committee to investigate the city and county of Albany. The resolution authorizing such appointment recites in substance that it is reputed that the commission of crime is prevalent in the city and county of Albany; that prosecution therefor is lax, and that municipal laws and regulations are disregarded by the public officials, and that corruption amongst them exists, and that it is wise for the Legislature to investigate concerning the truth of such rumors to the end that remedial legislation may be suggested to cure such evils if any be found. The committee organized, engaged counsel and began hearings at which various witnesses were sworn. As shown by the moving papers, it appears that a corporation known as the J. B. Lyon Company, engaged in the printing business, was organized about 1901 with a capital of $300,000, consisting of 3,000 shares of the par value of $100 each, and that at about the time of such organization Mr. Barnes, who was and is the majority owner and publisher of the Albany Evening Journal, a Republican newspaper, became the owner of 750 shares of the Lyon Company stock; that the Albany Evening Journal for a period of twelve years prior to the hearing had presented and been paid by the State upwards of $14,500 for the printing of Session Laws for which it is alleged no services were rendered; that for several years upon competitive bidding the city of Albany had awarded to the Albany Argus, a Democratic newspaper, because it was the lowest bidder, printing contracts upon which the Argus Company voluntarily paid ...

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