
    
      In re McAdam.
    
    
      (Supreme Court, General Term, First Department.
    
    November 7, 1889.)
    1. Contempt—Commitment—Procedure.
    Under Code Civil Proc. §§ 856,857, authorizing the judge, on proof by affidavit that a witness refuses to answer a legal question, to commit him to jail by warrant, specifying the cause of commitment, etc., the fact that notice of the application was given, and an order to show cause granted, does not require a decision evidenced by an order in writing, as the statute does not require notice or rule to show cause, and such procedure is a mere nullity.
    2. Constitutional Law—Due Process of Law.
    The above sections are not unconstitutional as depriving of liberty without due process of law, in that the proceeding is ex parte, and no notice is required.
    8. Same—Titles of Laws.
    Laws N. Y. 1884, c. 516, is entitled “An act to amend chapter 410 of the Laws of 1882, entitled ‘ An act to consolidate into one act and to declare the special and local laws affecting public interests in the city of New York,’ in relation .to the commissioners of accounts, New York city. ” The amended act was virtually a charter of the city, being an act to consolidate all the special and local acts by which the government of the city was carried on, and from which its various departments derived their power, and the law of 1884 was simply an amendment of this. Field, that the title of the law of 1884 was sufficient.
    Appeal from special term, New York county.
    Graham McAdam appeals from an order denying a motion to vacate a commitment for contempt. For opinion delivered at special term, see 5 N. Y. Supp. 387. Laws N..Y. 1884, c. 516, is entitled: “An act to amend chapter four hundred and ten of the Laws of eighteen hundred and eighty-two, entitled ‘An act to consolidate into one act and to declare the special and local laws affecting public interests in the city of New York,’in relation to the commissioners of accounts, New York city. ” The sections of the Code of Civil Procedure referred to in the opinion are as follows: “Section 856. If the person subpoenaed and attending or brought, as prescribed in the last section, before an officer or other person or a body, refuses, without reasonable cause, to be examined, or to answer a legal and pertinent question, * * * the person issuing the subpoena, if he is a judge of a court of record or not of record, may forthwith, or, if lie is not, then any judge of sucli court may, upon proof by affidavit of the facts, by warrant commit the offender to jail, there to remain until he submits to do the act which he was required to do or is discharged according to law. Section 857. A warrant of commitment, issued as prescribed in the last section, must specify particularly the cause of the commitment; and, if the Witness is committed for refusing to answer a question, the question must be inserted in the warrant. ”
    Argued before Van Brunt, P. J., and Bbady and Daniels, JJ.
    
      Peter Mitchell, for appellant. J. J. McKelvey, for respondent.
    
      
       Affirming 5 N. Y. Supp. 387.
    
   Van Brunt, P. J.

In March, 1889, a commitment was issued by Justice Ingraham committing Mr. Graham McAdam to jail, there to remain until he should answer a question named in said commitment, which had been propounded to him by the commissioners of accounts of the city of Hew York, or be discharged according to law. The grounds upon which the motion was made were that the proceedings to commit McAdam for contempt were initiated by an order to show cause, and therefore a decision evidenced by an order in writing was necessary. Upon the face of the commitment no such fact appears; and although, upon the papers submitted, it would seem that an order to show cause had been issued, yet, there being no authority in law for any such proceeding, all that went before the signing of the commitment was a nullity. The commitment is issued, apparently, ex parte, under sections 856, 857, of the Code. Ho notice whatever was required; and the mere fact that notice of the application was given, or an order to show cause granted, in no way impaired the right of the court to issue.the commitment as though no such notice had been given. Therefore the court was entirely right in refusing to enter any order upon the return of the order to show cause; and such refusal in no way invalidated the commitment, because, as already said, the commitment appears to have been issued, not by virtue of any order to show cause, but simply ex parte, as provided and authorized by the Code. It is to be seen that the commitment is to be issued by a judge of the court, and not by the court; and therefore the entry of an order would simply amount to the justice directing himself to issue a warrant. It is correctly claimed by the respondent that the application is entirely ex parte, and does not require any notice whatever of the application to be given to the witness, and that the application must be made, not to the court, but to a judge, who alone has power to commit the offender. Therefore, under sections 856, 857, the correct practice was pursued. Ho notice was necessary, and no order could be entered; and the commitment was issued in pursuance of these provisions of the Code.

The claim that chapter 516 of the Laws of 1884 is unconstitutional cannot be sustained. Chapter 410 of the Laws of 1882 was virtually a charter of the city of Hew York. It was an act passed to consolidate into one act all the special and local acts by which the government of the city of Hew York was carried on, and from which its various departments derived their power, by which their rights were conferred. Chapter 516 of the Laws of 1884 was simply an amendment of this charter, and its title was certainly more explicit than that of chapter 410 of the Laws of 1882. The title fairly represents the subject-matter of the legislation contained in the chapter; and, unless the legislation itself is to be set out in the title, it was sufficiently definite to answer all the requirements of the constitution.

It is further urged that the sections of the Code under which the warrant was issued are unconstitutional because in violation of that part of the constitution of the United States which provides that “no person shall be deprived of life, liberty, and property without due process of law.” ' Why reference should be made to the constitution of the United States it is difficult to imagine, when the same provision is found in the constitution of our state, which would be much more applicable if any violation of its terms has occurred. It is claimed that, because these sections do not require notice of the application, therefore the offender is deprived of his liberty without due process of law. What is “due process of law” has not been clearly defined; but the practice of summary commitments has prevailed ever since the Revised Statutes were adopted, and long before the adoption of the constitution to which reference has been made. Such a procedure in the case of a witness has been recognized for a sufficient length of time to bring it within the category of “due process of law.” By the Revised Statutes, (volume 2, pt. 3, c. 8, tit. 13, § 3,) in cases of proceedings to punish disobedience to any rule or order requiring the payment of money, or of disobedience to any subpoena, it is expressly provided that no notice is necessary, and the warrant to commit may issue in the first instance. This has been the practice since then, and the provisions of the Code in question are in entire harmony with the previous legislation upon the same subject. As to the relevancy of the question asked, we are unable to say that it was not relevant. The party moving to set aside the commitment has not shown its irrelevancy by bringing before the court the papers upon which the commitment was granted, or the other evidence which was taken in the proceeding. Upon the papers before him, the justice issuing the warrant has found the question to be irrelevant; and without those papers it is impossible for ns to say that his conclusion was erroneous. We are of the opinion, therefore, that the order appealed from should be affirmed, with $10 costs and disbursements. All concur.  