The People ex rel. Hackley v. Kelly &c. and Matter of Andrew J. Hackley

24 N.Y. 74 (1861)

In the early 1860s, the Republicans who controlled the New York Legislature tried to break the hold of Tammany Hall and tackle the corruption that was endemic in the New York City administration of Mayor Fernando Wood.

Allegations of serious corruption on the part of the Mayor and other City officials appeared in the New York Tribune on November 30, 1861:

How Wood Robs THE CITY – Fernando Wood at Volks Garden the other night, by his bold secession speech, avowed himself a rebel. We print this morning some crushing testimony, showing conclusively that he is also a public robber. At the solicitation of the foremen of three several grand juries, which had the matter under investigation, the district attorney has made public the evidence taken in regard to the Hackley contract fraud. It will be remembered by our readers that about a year ago the common council one night, after letting the subject of street cleaning sleep for a long time, suddenly resolved to award the contract for five years, ostensibly to Andrew J. Hackley, for $279,000 a year, although they had before them, the bids of many other equally responsible parties, who stood ready to give the necessary sureties and do the work for a much smaller sum, one of them, Mr. Wm. H. Williams, for $84,000 a year less than the Hackley offer. By this transaction the tax-payers were robbed of $420,000 on this single contract alone. So outrageous was this proceeding, and so evidently fraudulent upon its face, that the ring dared not submit it to the ordeal of public opinion, but rushed it through both boards the same night, and in order to escape injunction, the mayor waited in his office, contrary to all custom, till near midnight, to perfect it by his signature. From the evidence of Messrs. Wm. H. Williams, George C. Byrne, Edward B. Wesley, Daniel D. Conover, Cornelius K. Garrison, Hawley D. Clapp, Anthony S. Hope and Thomas Hope, it appears that $40,000 was raised, and paid for the passage of the contract by the common council, the agent who received the money being now a fugitive from justice. The consideration which Fernando Wood received for signing the bill was one-fourth of the contract, or $69,750 a year, for five years, free of any other consideration than said signature…

A grand jury was convened to investigate potential criminal conduct and to determine whether criminal charges should be brought. Subsequently, the grand jury foreman, on behalf of the panel, appeared in the Court of General Sessions to complain that Andrew J. Hackley, a witness summoned to testify in the matter pending before the grand jury, refuse to answer the following legal and proper interrogatory: “What did you do with the pile of bills received from Thomas Hope, and which he told you amounted to fifty thousand dollars?” Hackley, instead of answering the question, replied, “Any answer which I could give to that question would disgrace me, and would have a tendency to accuse me of a crime. I therefore demur to the question, referring to the ancient common law rule, that no man is held to accuse himself, and to the sixth section of the first article of the Constitution of this State.”

The court held that the interrogatory was a legal and proper one, and that the reasons given by Hackley for not answering were invalid and insufficient. The court then ordered Hackley to answer the question, and when he refused, convicted him of contempt and sentenced him to thirty days in jail.

Hackley’s attorney then sought a writ of habeas corpus in the New York Supreme Court, and also appealed the order of the Court of General Sessions that had adjudged Hackley guilty of criminal contempt, but the Supreme Court upheld the decision of the court below.

Hackley then appealed to the New York Court of Appeals, which heard the case in the December Term of 1861. Hackley was represented by James T. Brady and Amasa J. Parker, and the People were represented by John H. Anthon.

Writing for a unanimous Court, Judge Hiram Denio held that “if the case was such that he was obliged by law to answer the inquiry, the power of the court to punish him for his refusal was undoubted. If the case is not reached by the statute, the power would be ample at the common law.”

Quoting the Bribery Act of 1853, which declared the giving to or receiving money by any of public officers named, including any member of the common council of a city, with a view to influence their action upon any matter which may come officially before them, is an offense punishable by fine and imprisonment in a state prison. For the purpose of enabling the public to avail itself of the testimony of a participator in the offense, the fourteenth section provides as follows: Every person offending against either of the preceding sections of this article shall be a competent witness against any other person so offending, and may be compelled to appear and give evidence before any magistrate or grand jury, or in any court in the same manner as other persons; but the testimony so given shall not be used in any prosecution or proceeding, civil or criminal, against the person so testifying." (Ch. 539.)

Judge Denio then noted that a similar provision is found in an act to amend the charter of the city of New York, passed in 1857.

The Judge concluded that the right against self-incrimination exists only in a prosecution against the person claiming that right, for what is forbidden is that he should be compelled to be a witness against himself.

Now if he be prosecuted criminally touching the matter about which he has testified upon the trial of another person, the statute makes it impossible that his testimony given on that occasion should be used by the prosecution on the trial. It cannot, therefore, be said that in such criminal case he has been made a witness against himself, by force of any compulsion used towards him to procure, in the other case, testimony which cannot possibly be used in the criminal case against himself.

Judge Denio concludes that Hackley was not protected by the Constitution from answering the questions of the grand jury, and affirmed both judgments of the court below.



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