(Thomas vs. Leslie, County Controller.

of County Commissioners is not a law against which said constitutional provision is directed.

This has been expressly decided by the Supreme Court in case of County of Crawford vs. Nash, 99 Penna, 253, and it has been repeatedly held by the Supreme Court that a municipal ordinance is not a law within the meaning of that section, of the Constitution. See Baldwin vs. Philadelphia, 99 Penna., 164.

McCormick vs. Fayette County, 150 Penna., 190.

And the payment of the solicitor's salary by the month instead of annually or otherwise is certainly a matter within the power of the County Commissioners.

The certifying of plaintiff's bills and countersigning the warrants for the payment thereof are clearly ministerial duties and under all the authorities a performance of such duties by a controller can be enforced by a writ of mandamus. We have so repeatedly decided in case of the city controller and in at least one case in which the Mayor of Erie City was the defendant; and the Supreme Court has so decided in numerous cases. The case being free from doubt, in our opinion plaintiff is entitled to the relief sought.

And now, November 30th, 1914, after argument by counsel and upon due consideration, on the demurrer to defendant's answer in the above stated case, judgment is entered in favor of the plaintiff and against the defendant; and it is ordered that after the expiration of twenty days from the entry of which judgment a writ of preemptory mandamus issue directing and requiring the defendant to certify to plaintiff's said bills for salary for the months of June, July and August, 1914, and also to countersign the warrants issued by the County Commissioners for the payment of such bills in accordance with the prayer of plaintiff's petition.

WHEAT EXPORT COMPANY, INCORPORATED, VS. PENNSYLVANIA RAILROAD COMPANY.

Right to compel witnesses to submit themselves to oral examination before a Commissioner.

Unrestricted oral examination should not be enforced under a Commission where there is nothing before the Commissioner that the Commissioner could submit to the Court by which either could assertain what the issue between the litigating parties was in the State from which the Commission came.

Open oral examination before a Commissioner is contrary to the established policy of our law and it is illogical to compel a witness to appear for the avowed purpose of being subjected to an examination in a matter contrary to the administrative policy of our laws.

No. 159, February Term, 1919-C. P. Erie County.

Reed, Wait & Spofford with Holmes, Whitlock & Scarff for Plaintiff and Commissioner.

S. Y. Rossiter for Pennsylvania Railroad Company.

ROSSITER, P. J., February 27, 1919. These proceedings arise upon a petition by Joseph M. Force, Esq., setting forth that he is a resident of the City of Erie, Pennsylvania; that on the 3rd day of December, 1918, he was duly appointed and qualified by the Supreme Court of New York County, New York, as a Commissioner to take the testimony of certain witnesses, all of whom resided in this city; that the testimony so taken was to be read in evidence upon the trial of the above stated case; that he issued subpoenas as such Commissioner to the witnesses; that the witnesses were duly and legally notified to appear before the Commissioner at his office in the City of Erie on December 17th, 1918, at 10:30 o'clock in the morning, for the purpose of testifying in the said case, and directed to bring with them certain memoranda, letters and records pertinent to the issue involved; that the said witnesses so subpoenaed, each and all of them, refused and failed to produce the records, memoranda and letters directed to be produced: he therefore prayed the Court to authorize the issuing of subpoenas to said witnesses and such other witnesses as might be properly required, directing them to produce the records, memoranda, letters, etc., and to appear at the time and place fixed by the said Commission; and that if said witnesses failed to attend and testify, or produce the records, memoranda, letters, etc., at the time and place fixed, after due service, that then the Commissioner be empowered and authorized to attach the said witnesses to compel their appearance.

The witnesses made answer to the petition, neither affirming nor denying that the said Joseph M. Force, Esq., was a Commissioner duly appointed and qualified by the Supreme Court of the State of New York to take testimony to be read in evidence, but

Wheat Export Company, Incorporated, vs. Pennsylvania Railroad Company. averred that the Commissioner was not entitled to have his prayer granted for the reason that the Supreme Court of the State of New York was without authority to confer upon a Commissioner in Pennsylvania the power to compel the attendance before him of witnesses for the purpose of giving oral testimony, and that the Commission does not authorize the Commissioner to require witnesses to produce documents; that the Commission does not authorize the petitioner to require witnesses to attend before him for the purpose of giving answer to any questions propounded by Counsel; that the Commission does not authorize the taking of the testimony of any other persons than the individuals specifically named; that the laws of the Commonwealth do not authorize the compulsion of persons to appear before Commissioners appointed by the Courts of other States for the purpose of answering oral questions or producing documents; that the laws of this Commonwealth do not permit either party to a suit to compel the production of records, letters, memoranda, etc., by witnesses for examination prior to the trial; and that the Court should not exercise in behalf of litigants of other states authority they do not exercise in behalf of litigants within their own jurisdiction; and finally, that this Court has no jurisdiction or authority in the premises to make the order prayed for.

On account of his relationship to one of the witnesses, our Colleague declined to sit, and by reason of our former connection with the defendant and the further fact that it is represented by a relative, an embarrassing situation arose, to relieve which a master was appointed to hear the matter and make recommendation to the Court.

On February 6, 1919, the Master filed his report, recommending the granting of the prayer of the petitioner; but instead of the recommendation of the Master relieving us from one embarrassment, it has created two, for in addition to the initial embarrassment is stated above, we now find ourselves confronted with the further embarrassment of disagreeing with the Master; for we believe that the issue here raised is controlled by Nielson's Appeal, 230 Pa. 540, which holds in so many words that an open oral examination upon the whole case before a Commissioner, is contrary to the established administrative policy of our law, and cannot be sustained." And in this belief we are strengthened by the fact that all the Common Pleas decisions now called to our attention were then before the Supreme Court. It is true, as recited by the Master, that in the Nielson case the Judge delivering the opinion says "in a proper case, where the Commission permits an oral examination, the Commissioner might apply to the Court here for an order requiring the witness to reply to certain oral questions put to him" but he also says immediately following that "these

Wheat Export Company, Incorporated, vs. Pennsylvania Railroad Company. questions must be inquiries necessary to explain and elucidate answers already given to written interrogatories, and there must be a specific averment of the particular interrogatories and answers complained of, so that the Court may judge whether or not such answers require explanation or elucidation."

It is difficult for us to understand how this language can bear a dual interpretation, as it explains exactly just how, when and why oral questions are permitted, and when this language is followed by the positive averment that "open oral examination is contrary to the established policy of our law and cannot be sustained" we can arrive at no other conclusion than that the prayer of the petitioner here should be denied. True, it is argued that the witnesses should have obeyed the summons in the first instance and appeared; and if the questions asked were impertinent to the issue, the witnesses could have refused to answer; that then the matter could have been taken before this Court, for the Court to determine whether or not the questions asked were pertinent to the issue, and make an order directing the witnesses to answer, or relieve them from answering. This is true, but this argument fails now for the reason that there is nothing before us by which this Court can determine anything about the relevancy of the testimony sought or the pertinence of the facts to be elucidated; as there is nothing before the Court here to show what the issue is in the State of New York, and while we would undoubtedly hold that the witnesses could not take it upon themselves to decide whether or not their testimony was material to the issue, and while it undoubtedly is the law that it is not for witnesses to say whether they shall appear or refuse to appear, and while we would undoubtedly order the witnesses to appear in the first instance, still by the petition of the Commissioner and from the Commission itself it now develops that the attendance of the witnesses is desired for the purpose of being examined orally, without the slightest information as to what that examination is to be about, while the Commission itself provides that "the person appearing for either party may ask any question that he deems proper, and the witness' answer must be taken accordingly, the objections thereto being reserved without being specified at the time of the examination." There is thus no limits to the examination to which the witness might be subjected, and such an examination might give great and undue advantage, or disclose information of a private nature wholly extraneous to the issue.

It is also contended that if the witnesses had the right to refuse to respond to the subpoena, that this would be a denial of justice, for the reason that then Courts of other States would not be able to procure evidence in cases pending before them; but this

Wheat Export Company, Incorporated, vs. Pennsylvania Railroad Company. argument is untenable for the reason that any evidence pertinent to the issue might be obtained upon interrogatories, and the attendance of witnesses would of course be compelled. Hence, it would be useless to make an order now directing the witnesses to appear, and after they appeared have them refuse to answer, and then hold that the grounds for refusal to answer were well taken. The law does not require useless things to be done, and while the advice of Counsel to the witnesses not to appear was wrong initially, that wrong cannot now be remedied by directing the witnesses to appear, when it has developed before this Court that the purpose for which the appearance is desired cannot be enforced in law.

In our opinion, it could never be the law that unrestricted oral examination should be enforced under a Commission where there was nothing before the Commissioner that the Commissioner could submit to the Court by which either could ascertain what the issue between the litigating parties was in the State from which the Commission came. If this was the law, rival business concerns could bring proceedings for the purpose of obtaining information relative to the rival's business, and the extent to which such practice might be carried would only be limited by the scruples of the parties employing it. Such a proceeding could not be tolerated. "We ought (as Justice Moschzisker, super, has well said) to do all within reason to assist the Court of a sister State, but no rule of comity calls upon us to subject one of our citizens to a roving oral examination which it would be most difficult if not impossible to keep within bounds, and which might prove unjustifiably annoying, vexatious and harmful to the witnesses." (Nelson's Appeal, 230 Pa. 542).

It is further urged that the established administrative policy of our law has been changed since the decision in Nielson's Appeal, 230 Pa. 540, for the reason that our Act of June 8, 1911, P. L. 709, passed since that case was decided, provides for the taking of the testimony of witnesses in other States and Foreign Countries orally, before an examiner appointed by Pennsylvania Courts. But there is nothing in that act which changes the administrative policy of the law upon this subject, for the reason that the Act is not compulsory, but recites that the Court may upon application of either party provide for the taking of such testimony orally. But we cannot conceive that any Court of this State would provide that witnesses in other States should be subjected to a general oral examination, without indicating in some way, the issue involved. If a Court of this State would provide that witnesses in other States should be subjected to a general oral examination, without indicating in some way, the issue involved. If a Court of this State