Eastwood, Jayne and Clapp. The opinion of the court was delivered by Eastwood, S.j.a.d.
The sole issue of this appeal is whether, under the provisions of N.J.S. 2 A:81-18 et seq. , a resident of this State, in addition to being directed to appear as a witness in a criminal proceeding in another State, may be required to produce books and records in his possession or under his control.
On February 25, 1954 a certificate, executed by the judge of the Court of General Sessions of the County of New York, was filed in the Essex County Court reciting that a grand jury was conducting an investigation of the insurance welfare funds of certain labor unions and of the activities of certain insurance agents doing business with the members of various labor unions located in the County of New York; that the grand jury was seeking to ascertain whether the commissions received by the said insurance agents were being or had been split with certain labor officials and other unauthorized persons, in violation of the Insurance Law of the State of New York, and whether the crime of conspiracy and bribery had been committed in connection therewith; that Louis B. Saperstein, appellant, an insurance agent residing in New Jersey, had placed contracts of insurance for members of unions in New York County and he was required as a necessary and material witness before the grand jury making that investigation and, in connection therewith, certain specified books and personal records of the appellant were necessary and material.
On February 26, 1954, after a hearing before the Essex County Court, an order was entered directing appellant, together
with certain of his books and records, to attend and testify before the New York grand jury commencing March 2, 1954. The appellant's application to the Essex County Court to eliminate from the order the requirement for the production of certain of his books and records, was denied.
The appellant has indicated at all times his willingness to attend and testify and his objection relates solely to the production of his books and records.
Mr. Saperstein contends that the statutory enactment relied upon does not empower a County Court to order a citizen of New Jeresey to take with him his books and records before a grand jury of a sister state; that the order appealed from is unwarranted, oppressive and unconstitutional as authorizing compulsory production of self-incriminating evidence without provision for immunity or protection of the one producing it. It is further asserted that the statute is unconstitutional as being a compact between states without congressional approval, contrary to Art I, sec. 10, of the United States Constitution.
The pertinent provisions of the act known as the "Uniform Act to Secure the Attendance of Witnesses from Without a State in Criminal proceedings" (N.J.S. 2 A:81-19), provides, inter alia:
"If a judge of a court of record in any state which by its laws has made provision for commanding persons within that state to attend and testify in this state certifies under the seal of such court that there is a criminal prosecution pending in such court, or that a grand jury investigation has commenced or is about to commence, that a person being within this state is a material witness in such prosecution, or grand jury investigation, and his presence will be required for a specified number of days, and that same cannot be insured voluntarily, upon presentation of such certificate to any judge of a court of record in the county in which such person is, such judge shall fix a time and place for a hearing, and shall make an order directing the witness to appear at a time and place certain for the hearing.
If at a hearing the judge determines that the witness is material and necessary, that it will not cause undue hardship to the witness to be compelled to attend and testify in the prosecution or a grand jury investigation in the other state, and that the laws of the state in which the prosecution is pending, or grand jury investigation has
commenced or is about to commence (and of any other state through which the witness may be required to pass by ordinary course of travel), will give to him protection from arrest and the service of civil and criminal process, he shall issue a summons, with a copy of the certificate attached, directing the witness to attend and testify in the court where the prosecution is pending, or where a grand jury investigation has commenced or is about to commence at a time and place ...