not to be required, and cannot absolutely be required, to make the order." The expressions in the statute, "it shall be the duty of the justice * * * to grant such application," and "the order shall be And for judge's con- granted by the justice," do not deprive him of the power to decide sideration whether, upon the facts alleged, the order should be granted. It was his duty to consider the allegations of the petition, and decide whether they made out a case pursuant to the statute, and authorized an order of examination according to its provisions. It was necessary for him to be satisfied judicially that the Attorney General had, in good faith, determined to commence an action, and whether the testimony of the persons named was material and necessary in connection with that action. The statute is not satisfied by a simple statement of the Attorney General in his petition that he is informed and believes that the testimony of such persons is material and necessary, but he must show how and why it is material and necessary. This involves the general nature and object of the action that he has determined to bring. A determination to bring an action, indefinite and undefined, is not what the Legislature contemplated, but one the general character of which is described sufficiently to show that it is founded upon the statute as well as upon probable cause, and that the testimony of the witnesses will be material and necessary therein. Thus the justice is called upon to exercise the judicial function of deciding whether the application conforms to the statute as thus construed, the same as is required of him when an application is made for an order of arrest, a warrant of attachment, or any other provisional remedy. His duty is not merely clerical, but requires the exercise of judgment. When a writ of habeas corpus is applied for, the statute says that the judge "must grant it without delay," and even inflicts a penalty for failure to comply with the command, yet it is his duty to refuse the writ unless the facts required by the code are sufficiently set forth. Code Civ. Proc. § 2020. In all these cases the judge is required to act judicially, for he must decide the question of law whether the facts alleged make out a case under the statute. But, while the power committed to the justice is judicial in form, Sortfoliu per prunless it is judicial in substance, and has a judicial purpose to ac what is its purp? complish, the duty is of an administrative character only. Since the object of the statute, so far as it relates to procedure, is not expressly stated, it must be inferred from the title and the provisions of the act. The title declares that the object of the procedure is to enable the Attorney General to "secure testimony" in relation to violations of the act, and the text indicates the same purpose. The statute is remedial, and it is the duty of courts to so construe it as to "suppress the mischief and advance the remedy." As no notice to the proposed adverse party is required, and no opportunity is expressly afforded for crossexamination, the testimony cannot be read in evidence upon the trial of the action. The taking of testimony for use upon a trial is part of the trial itself, so far as the constitutional provision allowing the right to counsel and requiring due process of law is concerned. No judgment can be pronounced, or determination made, based wholly or in part upon such testimony, which is not reported to the judge or court for judicial action. The only use, so far as we can now see, that can be made of the Jo enable Al ti testimony, is to enable the Attorney General either to prepare his com is clearly within the power of the Legislature to intrust to the court or strial formewire Is the latter plaint or prepare for trial. The former is a judicial purpose, and prepare hus complaint & to prepar its judges. Glenney v. Stedwell, 64 N. Y. 120. It aids directly in framing the issues which the court is to try, tends to prevent the delay resulting from amendments of the complaint, and thus advances the remedy to the end which is to be effected by the judgment. In re Cooper, 22 N. Y. 67, 84. The other use suggested involves a serious. question. It is urged that an inquisition into one's private affairs, the compulsory production of his books and papers and the disclosure of his business secrets, is an invasion of personal liberty as guarantied by the Constitution. It is insisted that a proceeding which ends in nothing, that establishes no right and prevents no wrong, either di-y untra rectly or indirectly, is not of a judicial nature. * * * Through its legislative department the state can examine witnesses with reference to prospective legislation, and why can it not, through its judicial department, under an appropriate statute, examine witnesses in order to establish in court rights belonging to all its citizens, even if the testimony is not to be read in court, but is to be used for a purpose incidental to the trial? * * * The procedure authorized is in the nature of a statutory bill of Conclus: Hus my & discovery. The ancient remedy of enforcing discovery was devised is a staty belf by the courts to compel a party in a pending action at law to disof discorsing cover and set forth upon oath in an independent action every fact and circumstance within his knowledge, information, or belief material to a valid the plaintiff's case. 2 Story, Eq. Jur. (13th Ed.) 811; Adams, Eq. (8th Ed.) 1. A bill of discovery was never brought to a hearing, and there could be no decree on matters set forth therein, for its sole object was to obtain testimony for use in another action. 6 Enc. Pl. & Prac. 781. It would lie even if the other action had not been brought, provided there was an intention to bring it. Stebbins v. Cowles, 10 Conn. 408. The process of thus obtaining testimony has never been regarded. as an unauthorized interference with personal liberty, but as due process of law. If the courts themselves, simply of their own motion,} can establish such a system, cannot the Legislature create a procedure' similar in nature, even if it is more drastic in effect? It is true that testimony thus taken could be read in evidence upon the trial of the other action, but is this essential to a judicial purpose, or does due process of law require that testimony cannot be taken by a judge, unless it is to be read in court, provided the sovereign power needs it in order to enforce its own laws through judicial proceedings? Is the state itself, when a litigant, not to establish a mere right of We think the duties imposed by chapter 690 of the Laws of 1899 The order of the Appellate Division should be reversed, and that of the Special Term affirmed, with costs, and the questions certified answered as indicated in the opinion. BARTLETT and O'BRIEN, JJ., dissent. 32 The court then refers to Interstate Commerce Commission v. Brimson, 154 U. S. 447, 14 Sup. Ct. 1125, 38 L. Ed. 1047 (1894), ante, p. 999 Cal. Pub. Litel Comm? That's 1911. 118. extra dess & Amendt. 1913 $ 683,984. 850. Make own rules of pract sprocedure. 54 Pons to issue forocess 55a.bc. Compare. Cal Const Art xx lastelause. Sect 21 Н Hall quotes from 8 Com. L Rep 330,355 ff, 381 ff (1909) jol p. 3. Austr Const Gov. CHAPTER VI ADMINISTRATIVE EXECUTION SECTION 29.-DISTRESS WARRANTS 88DEN ex dem. MURRAY et al. v. HOBOKEN LAND & IMPROVEMENT CO. (Supreme Court of the United States, 1855. 18 How. 272, 15 L. Ed. 372.) the judges of the Circuit Court of the United States for the District of title under Samuel Swartwout-the plaintiffs, under the levy of an execution on the 10th day of April, 1839, and the defendants, under a sale made by the marshal of the United States for the District of New Jersey, on the 1st day of June, 1839, by virtue of what is denominated a distress warrant, issued by the solicitor of the treasury under the act of Congress of May 15, 1820, entitled "An act providing for the better organization of the Treasury Department." 2 This act 1 Only a portion of this case is printed. As to distress warrants for nonpayment of personal taxes, a very common practice, see Cooley on Taxation, p. 438. As to enforcement of payment of taxes by arrest, see Palmer v. McMahon, 133 U. S. 660, 10 Sup. Ct. 324, 33 L. Ed. 772 (1890). 2 The provisions of the act of May 15, 1820, bearing upon the question before the court, appear in the Revised Statutes as follows: "Sec. 3625. Whenever any collector of the revenue, receiver of public money, or other officer who has received the public money before it is paid into the treasury of the United States, fails to render his account, or pay over the same in the manner or within the time required by law, it shall be the duty of the proper auditor to cause to be stated the account of such officer, exhibiting truly the amount due to the United States, and to certify the same to the solicitor of the treasury, who shall issue a warrant of distress against the delinquent officer and his sureties, directed to the marshal of the district in which such officer and his sureties reside. Where the officer and his sureties reside in different districts, or where they, or either of them, reside in a district other than that in which the estate of either may be, which it is intended to take and sell, then such warrant shall be directed to the marshals of such districts respectively." (U. S. Comp. St. 1907, p. 2418.) "Sec. 3627. The marshal authorized to execute any warrant of distress shall, by himself or by his deputy, proceed to levy and collect the sum remaining due, by distress and sale of the goods and chattels of such delinquent officer; having given ten days' previous notice of such intended sale, by affixing an advertisement of the articles to be sold at two or more public places in the town and county where the goods or chattels were taken, or in the town PolC O119/518 having provided, by its first section, that a lien for the amount due should exist on the lands of the debtor from the time of the levy and record thereof in the office of the District Court of the United States for the proper district, and the date of that levy in this case being prior to the date of the judgment under which the plaintiffs' title was made, the question occurred in the Circuit Court, "whether the said warrant of distress in the special verdict mentioned, and the proceedings thereon and anterior thereto, under which the defendants. claim title, are sufficient, under the Constitution of the United States and the law of the land, to pass and transfer the title and estate of the said Swartwout in and to the premises in question, as against the lessors of the plaintiff." Upon this question, the judges being of opposite opinions, it was certified to this court, and has been argued by counsel. No objection has been taken to the warrant on account of any defect or irregularity in the proceedings which preceded its issue. It is not denied that they were in conformity with the requirements of the act of Congress. The special verdict finds that Swartwout was collector of the customs for the port of New York for eight years before the 29th of March, 1838; that, on the 10th of November, 1838, his account, as such collector, was audited by the first auditor, and certified by the first comptroller of the treasury; and for the balance thus found, amounting to the sum of $1,374,119.65, the warrant in question was issued by the solicitor of the treasury. Its validity is denied or county where the owner of such goods or chattels may reside. If the goods and chattels be not sufficient to satisfy the warrant, the same may be levied upon the person of such officer, who may be committed to prison, there to remain until discharged by due course of law." (U. S. Comp. St. 1907, p. 2419. ) "Sec. 3630. For want of goods and chattels of a delinquent officer, or his sureties, sufficient to satisfy any warrant of distress issued pursuant to the foregoing provisions, the lands, tenements, and hereditaments of such officer and his sureties, after being advertised for at least three weeks in not less than three public places in the county or district where such real estate is situate, before the time of sale, shall be sold by the marshal of such district or his deputy." (U. S. Comp. St. 1907, p. 2419). "Sec. 3636. Any person who considers himself aggrieved by any warrant of distress issued under the foregoing provisions may prefer a bill of complaint to any district judge of the United States, setting forth therein the nature and extent of the injury of which he complains; and thereupon the judge may grant an injunction to stay proceedings on such warrant altogether, or for so much thereof as the nature of the case requires. But no injunction shall issue till the party applying for it gives bond, with sufficient security, in a sum to be prescribed by the judge, for the performance of such judgment as may be awarded against him; nor shall the issuing of such injunetion in any manner impair the lien produced by the issuing of the warrant. And the same proceedings shall be had on such injunction as in other cases. except that no answer shall be necessary on the part of the United States; and if, upon dissolving the injunction, it appears to the satisfaction of the judge that the application for the injunction was merely for delay, the judge may add to the lawful interest assessed on all sums found due against the complainant such damages as, with such lawful interest, shall not exceed the rate of ten per centum a year. Such injunction may be granted or dissolved by the district judge either in or out of court." (U. S. Comp. St. 1907, p. 2421.) |