upholding subpoena issued by city commissioner of accounts to non-city individual in commissioner's investigation into accounts of the department of taxes and assessmentsSummary of this case from Opn. No. 2007-9
Argued February 24, 1920
Decided April 13, 1920
William P. Burr, Corporation Counsel ( John F. O'Brien, William A. Walling and John Lehman of counsel), for appellant. Leonard M. Wallstein and Ralph M. Frink for City Government Committee of the Citizens Union of New York City.
Jeremiah T. Mahoney and J. Archer Hodge for respondent.
At the time involved in this proceeding David Hirshfield was the commissioner of accounts in the city of New York. The section of the charter of the city (L. 1901, ch. 466, amd. L. 1916, ch. 517), which authorized his appointment defined his duties and powers as follows: "It shall be the duty of the commissioner of accounts, 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. He shall also make such special examinations of the accounts and methods of the departments and officers of the city and of the counties of New York, Richmond, Queens, Kings and Bronx, as the mayor may from time to time direct, and such other examinations as the said commissioner 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 he shall have full power to compel the attendance of witnesses, to administer oaths and to examine such persons as he may deem necessary." (Section 119.) In the process of examining the accounts of the department of taxes and assessments the commissioner caused to be subpoenaed as a witness the respondent, Hanley, who failed to obey the subpoena, and refused to be sworn or testify as a witness when brought before the commissioner under a warrant of attachment. The commissioner thereupon applied to the Special Term for an order requiring Hanley to show cause why he should not be committed to jail for his refusal. The application was denied upon the ground, established by Hanley, that he, Hanley, was not an employee or officer of the city.
The ground is unreal. The language of the section is clear, direct and absolute. It invests the commissioner with full power to compel the attendance of, to administer oaths to and to examine such persons as he may deem necessary, as witnesses, for the purpose of ascertaining facts in connection with the examination. It is insusceptible of interpretation because in it there is no ambiguity. Neither the language itself nor the history of the origin and development of the enactment nor the conditions nor evil which the enactment was intended to assist in remedying, create uncertainty in its meaning. Viewed from the standpoint of the literal sense of its language it does not work an unjust or unreasonable result — a result which causes an obscurity of meaning calling for judicial interpretation. It is true that it gives the commissioner of accounts powers which may readily be used to transcend its expressed and legitimate purpose. Those who are made witnesses in virtue of those powers are entitled to all the privileges and protection extended by the law to witnesses in judicial proceedings and the courts should and will be quick and firm in halting the exercise of those powers for irrelevant, illegitimate or oppressive examinations or purposes. ( Matter of Barnes, 204 N.Y. 108.)
The orders should be reversed and the motion granted, with costs in all courts.
HISCOCK, Ch. J., HOGAN, POUND, McLAUGHLIN, ANDREWS and ELKUS, JJ., concur.
Orders reversed, etc.