271 Mass. 172 | Mass. | 1930
This is an application for an order to require the defendant to answer questions propounded to him in the course of a hearing before the Attorney General conducted under chapters 4 and 13 of the Resolves of 1930. By said c. 4 the General Court directed the Attorney General “to make a thorough investigation of the circumstances surrounding the pension awarded to Oliver B. Garrett as a member of the police department of the city of Boston, and all other related matters dealing with the service of the said Oliver B. Garrett during his term of employment as a member of said police department. For the purposes of this resolve, the attorney general may hold public hearings, may require the attendance and testimony of witnesses under oath, and the production of books and papers pertinent to the matters under investigation.” He was further directed
The defendant was summoned as witness to testify at hearings held pursuant to these resolves. He refused to answer certain questions but not on the ground that his replies might tend to criminate him. Then this application was presented. The defendant filed an answer setting up amongst other matters that the resolves were contrary to certain provisions of the Constitution of this Commonwealth and in contravention of the due process of law guaranteed to him by the Fourteenth Amendment to the Constitution
The finding of fact made by the single justice is accepted as true. It is supported by the questions set forth in the application and in the statement of the Assistant Attorney General at the hearing. Thus it appears that the Attorney General expected to elicit from the defendant testimony that he was an employee of a dairy corporation managed entirely by the wife of the Garrett mentioned in the resolves, or was her employee, that the defendant under her directions and the advice of said Garrett delivered milk at places where various forms of vice were practised and received therefor exorbitant sums of money, which were in truth tribute levied upon vice under the disguise of payment for milk.
The police department of the city of Boston is under the general control and management of a police commissioner for the city of Boston appointed by the Governor. St. 1906, c. 291, as amended. See St. 1885, c. 323. The authority of the police commissioner is plenary to secure efficient police service, subject only to certain standing laws. The police commissioner has large powers relative to retiring from active service and placing upon the pension roll members of the police department of that city. St. 1920, c. 6; St. 1929, c. 3. To enact these statutes was within the power of the General Court under the Constitution. Commonwealth v. Plaisted, 148 Mass. 375, 383-387. The police commissioner thus is an officer of the State. Sims v. Police Commissioner, 193 Mass. 547, 549. Sullivan v. Lawson, 267 Mass. 438. By reason of these statutes the police department of Boston is peculiarly subject to the legislative department of government so far as concerns its establishment and regulation.
It is a familiar principle of constitutional law that every presumption is made in favor of the validity of an act of the Legislature, and that the courts will not refuse to enforce it unless compelled so to do by provisions of the Constitution so plain in their bearing as to prevent any other rational construction. Perkins v. Westwood, 226 Mass. 268, 271. That principle must be borne in mind in the examination of these resolves. The grant of legislative power is conferred upon the General Court by the Constitution of this Commonwealth in ample terms. It includes the enactment and establishment of all manner of wholesome and reasonable laws for the good and welfare of the people and the authority “to set forth the several duties, powers, and limits, of the several civil and military officers” of the Commonwealth, c. 1, § 1, art 4. In the performance of its legislative functions manifestly the General Court may find it needful to acquire information not possessed by its individual members. Investigations of various subjects by legislative committees are often made to the end that facts relating to the enactment of proposed, or the amendment of existing, statutes may be ascertained and presented in available form for the enlightenment of members of the General Court as a basis for legislation. This method of procedure has been so common as not to require the citation of illustrations^ It may be a necessary incident of such method of ascertaining facts to receive evidence and to examine witnesses. The only means of assuring the attendance and testimony of witnesses is to summon them and to compel them to attend and to testify. There is no express grant of this power to the General Court by any words of the Constitution. It is an attribute of the power to legislate and follows as an essential implication of that power. It was so held in Burnham v. Morrissey, 14 Gray, 226, 239, and has never since been doubted in this Commonwealth. It was so decided after earnest and prolonged consideration accompanied by exhaustive discussion and illuminating review of authorities in
The record does not disclose the causes leading to the passage of said resolves further than to show that a petition had been filed during the current session of the General Court, accompanied by an order providing for an investigation by a joint legislative committee of substantially the same subject matter, that after hearing the petitioner was given leave to withdraw, and that subsequently the resolves were introduced and passed. The purpose of the present investigation is not set forth by any recitals by way of preamble or in the body of the resolves.' This absence of declaration of the aim of the investigation, or of the ultimate use designed to be made of the information gathered, is the basis of a strong argument in behalf of the defendant to the effect that it does not appear that the inquiry is instituted for any legitimate purpose. It is urged that the investigation is directed to the private business of the defendant; that if permitted to go forward it “will sweep all our traditions into the fire” and will further a scheme “to direct fishing expeditions into private papers on the possibility that they may disclose evidence of crime.” Federal Trade Commission v. American Tobacco Co. 264 U. S. 298, 306.
The proposition is put forward that the power to compel the giving of testimony is “limited to an investigation in aid of a legislative purpose which must in some way be indicated within the four corners of the enacted” resolves. It might save questions of difficulty if such declaration of the ultimate legislative design were made. The General Court has no power through itself or any committee or any agency to make inquiry into the private affairs of the citizen, except to accomplish some authorized end. Kilbourn v. Thompson, 103 U. S. 168,190. In our opinion this argument of the defendant is completely answered by the reasoning of two decisions of the Supreme Court of the United States. In re Chapman, 166 U. S. 661, was a case where the Senate of the United States raised a special committee of its members to investigate certain charges made in newspapers that
The investigation as disclosed by the record appears to bear some resemblance to an investigation by a grand jury for the detection of crime. That must be treated, however,
It follows, in our opinion, that the subject matter directed to be investigated by the resolves here assailed was within the constitutional competency of the General Court as ancillary to its legislative prerogative.
It may be added that in conducting any investigation, whether by a committee of its members or through other agency, the General Court is bound to observe all provisions of the Constitution designed to protect the individual in the enjoyment of life, liberty and property and from inquisitions into private affairs.
A question of difficulty is whether it is permissible for the General Court to deputize the Attorney General to conduct the investigation. The Legislature cannot delegate its law making power or any power explicitly reposed in it. Boston v. Chelsea, 212 Mass. 127. Dinan v. Swig, 223 Mass. 516. It is to be observed that no attempt has been made by the present resolves to devolve upon the investigator any legislative function. He is simply required to explore a comparatively narrow and strictly specified field. The resolves relate exclusively to facts. No recommendations are required. The ascertainment of facts in its essence is not a legislative function. It is simply ancillary to legislation. It may be accomplished in divers ways. While it may be done by the Legislature itself, it is a responsibility not infrequently placed upon committees and individuals. In some aspects it may partake of judicial attributes and require the exercise of quasi judicial faculties. It is not, however, a judicial function belonging exclusively to the courts. See Boston, petitioner, 221 Mass. 468, 474. There are numerous instances where the duty of making investigations of facts and reporting to the General Court has been placed upon boards or committees appointed for the purpose. Frequent illustrations of this practice also are found respecting permanent boards or commissions
The question is raised whether the provision of said c. 13, to the effect that attendance of witnesses and the giving of testimony before the Attorney General may be compelled by the courts, is within the constitutional power of the Legislature. This aspect of the case relates to procedure and jurisdiction. We regard this point as settled on principle by the decision in Interstate Commerce Commission v. Brimson, 154 U. S. 447. The opinion in that case contains an elaborate discussion of every aspect of the proposition. The question there presented related to the powers of the interstate commerce commission to summon witnesses and to compel their testimony touching relevant matters. The statute there under review as to compelling attendance of witnesses and enforcing the giving of testimony resembled
An adjudication that the defendant is in law obliged to give the testimony which he has refused to give is not merely ancillary and advisory to a legislative inquiry. It would be a decision touching a controversy which has arisen between the parties hereto. It would result in a judgment which would settle finally that controversy and the rights and obligations of the parties touching it. Interstate Commerce Commission v. Brimson, supra, at page 487. Dinan v. Swig, 223 Mass. 516, 520. There are numerous instances, in the actions of the General Court, where power has been vested in courts to compel the attendance and the giving of testimony by witnesses before boards, commissions and other bodies exercising quasi judicial powers or powers of inquiry as to facts. A general provision of this nature is found in G. L. c. 233, §§ 10, 11. See also G. L. c. 150, § 8; St. 1896, c. 515, § 3; St. 1917, c. 318, § 2; Res. 1919, c. 69; St. 1921, c. 325, § 3; St. 1923, c. 197, adding § 8A to G. L. c. 175. The constitutionality of these statutes, in their application to a case like the present, has never been directly challenged so far as we are aware. There are strong intimations, however, in Lawson v. Rowley, 185 Mass. 171, and in Moore Drop Forging Co. v. Board of Conciliation & Arbitration, 239 Mass. 434, 437, 438, to the effect that in their bearing upon issues raised in those cases such statutes did not exceed constitutional limitations.
The court is ever solicitous to maintain the sharp division between the three departments of government as declared by art. 30 of the Declaration of Rights. Cosmopolitan Trust Co. v. Mitchell, 242 Mass. 95, 115, 116. But that bound has not been overstepped by the present resolves.
A further contention of the defendant is that the resolves violate rights secured to him under art. 12 of the Declaration of Rights of the Constitution of this Commonwealth. Thereby there is assured to the individual protection against being deprived of his property, immunities or privileges, his life, liberty or estate except by the judgment of his peers or the law of the land. This is one of the great landmarks of human freedom. It cannot be cut down or invaded by any act of legislation. It is an additional shield to protect rights declared in art. 10. The right asserted by the defendant under the Fourteenth Amendment to the Constitution of the United States is substantially the same as that secured under these articles of the Declaration of Rights and is conferred by nearly the same words. Commonwealth v. Strauss, 191 Mass. 545, 550. The rights thus established in the fundamental law of both State and Nation must be sedulously preserved against direct attack or specious impairment. As was said in Kilbourn v. Thompson, 103 U. S. 168 at page 190: “No person can be punished for contumacy as a witness before either House [of the Congress], unless his testimony is required in a matter into which that House has jurisdiction to inquire, and we feel equally sure that neither of these bodies possesses the general power of making inquiry into the private affairs of the citizen.” These constitutional guaranties were not designed to protect the individúal against specific inquiries directed to a legitimate end undertaken in furtherance of a définite legislative design. The particular line of investigation revealed on this record does not in our opinion offend against these constitutional guaranties. It requires the defendant to disclose facts within his personal knowledge intimately connected with the official conduct of a member of a police organization established by the Legislature. It is not contended that the answers would
This investigation also follows directly the line of a legislative mandate, presumed to be an aid in determining whether legislation is needed. The personal inconveniences occasioned to the defendant by being required to attend the hearing and to disclose the facts within his knowledge do not differ in kind or degree from those likely to be sustained by any witness compelled against his wish to give testimony. The investigation here authorized and undertaken does not pass beyond the legislative power as defined in Burnham v. Morrissey, 14 Gray, 226, and McGrain v. Daugherty, 273 U. S. 135. Sinclair v. United States, 279 U. S. 263, 291-295.
The conclusion is that in our opinion no constitutional right secured to the defendant under either the State or the Federal Constitution is involved by anything shown on this record.
All the points argued by the defendant have been con
So ordered.