251 S.W. 509 | Tex. Crim. App. | 1923
Lead Opinion
On an original application for writ of habeas corpus in the District Court release was denied.
During a special session of the Legislature of this State, sitting at Austin, relator, in the City of San Antonio, made a speech in which he gave utterance of general charges of corruption against members of the Legislature in passing legislation. No particulars are given.
Taking note of the published report of the matter, the Legislature, by a concurrent resolution, authorized the appointment of a committee composed of three members of the Senate and five members of the House to investigate the charges alleged to have been made and report the result of the investigation to the Legislature. The committee was appointed and organized. Relator appeared before it in obedience to process but refused to be sworn and testify as a witness in the investigation. Then, as stated in the resolution,
"***said Committee, by motion duly made and seconded, and unanimously adopted, did then and there adjudge the said Hull Youngblood guilty of contempt of said committee in refusing to take the oath as a witness, or to be sworn as a witness, to testify in the matter then under investigation by said Committee."
Relator was by the Committee condemned to suffer imprisonment in the county jail for a period of twenty days or until the expiration of the session of the Legislature, unless, in the meantime, he should purge himself of the contempt by taking oath and giving testimony.
To support the judgment, respondent relies on Article 5517 of the Revised Civil Statutes found in the Acts of 1907, page 6. In that statute it is declared in substance that in the investigation of any public officer elected by the Legislature, or nominee for public office in respect to matters or charges that reflect upon the personal or official integrity of such public officer, or any investigation of any other matter, or for any other purpose that may be ordered by the Legislature of this State, *335
"***such investigating committee and each member thereof, shall have full power and authority to administer oaths to officers, clerks and stenographers that it may employ in connection with the performance of its duties, and to any witnesses and parties called to testify before it; and said investigating committee shall have full power and authority to issue any and all process that may be necessary to compel the attendance of witnesses and the production of any books, papers and other written documents it may designate, and to compel any witness to testify in respect to any matter or charge by it being investigated, in answer to all pertinent questions propounded by it, or under its direction, and to fine or imprison any witness for his failure or refusal to obey the process served on him by such committee, or to answer any such pertinent questions propounded; provided, that such fine shall not exceed one hundred dollars, nor shall imprisonment extend beyond the date of the adjournment of the legislature then in session; and provided, further, that the testimony given by a witness before such investigating committee shall not be used against him in any criminal action or proceeding, nor shall any criminal action or proceeding be brought against such witness on account of any testimony so given by him, except for perjury committed before such committee."
As authority for his detention this statute is assailed by the relator. He points to Section 15, Article 3 of the Constitution, reading thus:
"Each House may punish, by imprisonment, during its sessions, any person not a member, for disrespectful or disorderly conduct in its presence, or for obstructing any of its proceedings; provided, such imprisonment shall not, at any one time, exceed forty-eight hours."
Twice this provision has been considered by the appellate courts, but in neither case was the imprisonment fixed beyond forty-eight hours. See Canfield v. Gresham, 82 Texas Reports 10; Ex parte Wolters, 64 Tex.Crim. Rep.; and Ex parte Gray,
"It may be said that the Legislature would have inherent power to punish for contempt, it might also be said that the Constitution recognizes the fact and empowers that body to protect itself under the circumstances stated in article 3, section 15. That section fixes the limits of jurisdiction, at least it sought so to do by the language employed. To a certain extent, under the terms of section 15, the Legislature may be said to have judicial authority, or rather it may be said it has authority to act in a judicial capacity in ascertaining the facts and assessing the punishment therein prescribed. Whether the power is inherent or not, section 15, article 3, grants authority as well as expressly limits the extent of that authority."
In the case of Ex parte Gray, supra, the majority opinion was written by Judge Harper. If we properly comprehend it, it is to the effect that the refusal of Gray to testify before the committee could not be made a subject of contempt for the reason that such refusal was not "obstructing the proceedings of theHouse." Upon this subject, we copy from the opinion the following:
"The power to punish for contempt being a judicial power, requiring a judicial ascertainment of fact by a tribunal, and the adjudgment of punishment, the legislative department has no inherent power, as it is called, to exercise this judicial power, for this power is conferred upon the judicial department by this provision of the Constitution, unless in the Constitution is found some provision which expressly permits the legislative department to exercise it. In exercising judicial powers the legislative department must look to the Constitution for permission so to do, and if it is not found therein, it is prohibited from exercising that power, for in that instrument it is declared that `no person, or collection of persons, being of one of these departments, shall exercise any power properly attached to either of the others, except in the instances herein permitted.'
"So we must look alone to section 15 of article 3, to judge if permission is given the legislative department of the government to exercise this judicial power in cases of this character. That this permission is given the legislative department under this section of article 3 of the Constitution, during its sessions, to punish as for contempt for disrespectful or disorderly conduct in its presence, or for obstructing its proceedings, is plain, and the only question to be determined is, what is meant by the words `obstructing its proceedings?' as used in our Constitution."
The conclusion reached was that the offensive conduct in question *337 was not "obstructing the proceedings." Judge Prendergast, the dissenting member of the court, was of the opinion that the term "proceedings of the House" incorporated in the Constitution did embrace the inquiry which the committee before whom Gray and Wolters appeared, was conducting, This conflict of judgment as to the interpretation of the language "obstructing the proceedings of the House" is not important in the instant case. That the present inquiry does relate to the "proceedings of the House" within the provisions of the Constitution seems obvious. The power of the Legislature or of either House to appoint a committee and delegate to it the power to make any proper investigation with reference to a charge that in their official conduct its members were corrupt is beyond question. Notwithstanding the contrariety of views of the members of the court concerning some phases of the Wolters and Gray cases, they were unanimous in their opinions that the Legislature's power to punish for contempt comes from an express provision of the Constitution. This is true although the statute here relied on (Art. 5517) was passed five years antecedent to the date of the Wolters and Gray decisions. What inherent power with reference to contempt the Legislature would have had if the Constitution had been silent upon the subject is beside the question for the reason that in exercising the judicial attribute of punishment for contempt, our Legislature looks to the power granted in Art. 3 of Sec. 15 of the Constitution. The fact referred to by respondent that in statutes creating administrative bodies with judicial power or courts, the power of the Legislature to authorize punishment for contempt does not imply that it may by statute extend its own power or that of its members beyond the limits of the clause of the Constitution which confers and defines the power.
"It is a general rule that when a constitution confers a power, or enjoins a duty, it also confers by implication any incidental power necessary for the exercise of the one or the performance of the other."
"The general rule stated above is modified by another — that where the means for the exercise of a granted power are also given, no other or different means or powers can be implied, either on account of convenience or of being more effectual. And where the manner of exercising a given power is prescribed, the method thus designated is exclusive." (Amer. Eng. Ency. of Law, 2nd Ed., Vol. 6, p. 928.)
The same rule has been affirmed by text-writers and applied by judges on many occasions. See Cooley's Const. Limitations, 4th Ed., pages 78 and 94; Cyc. of Law Proc., Vol. 8, p. 742; Cooley's Const. Limitations, 7th Ed., pages 191 and 246; Holley v. State, 14 Texas Crim. App. 517; Parks v. West, 102 Texas Reports 11; Morris v. Powel,
Because the judgment assesses a punishment greater than that *339 named in the Constitution, and because the judgment of contempt was rendered by the members of a committee and not by the House or Senate, in which bodies the power to punish is vested, the judgment of the District Court should be reversed and the relator discharged, and it is so ordered.
Relator discharged.
Concurrence Opinion
The exigencies of the situation confronting us in this case; the brief time remaining of the Special Session of the Legislature whose action is in question; the imperative need for a decision of the case before adjournment of that body, if they be benefited or guided by our conclusions, have caused us to review, possibly without that mature deliberation which ought to be exercised the various authorities cited by both sides in this controversy as well as many others which have been examined in an effort to solve the questions. All the authorities pertinent are from other states than ours.
The law under which the Committee was acting, which adjudged this appellant in contempt and committed him to jail for twenty days, was passed in 1907, and apparently this is the first time that any effort has been made to use the power and authority there attempted to be conferred upon a legislative committee. In Ex parte Wolters, 64 Tex.Crim. Rep., and Ex parte Gray,
In our review of the authorities of other states and of the Federal courts we are confronted with the immediate difficulty that the facts in each case differ and the constitutions of the several states in many instances differ. The only cases that have been cited here at all similar on the facts are different in the constitutions of the states in which they were disposed of. These cases will probably be reviewed by my brother Hawkins. In our investigation of the authorities we have had constantly in mind the desire to uphold Article 5517, Complete Laws of Texas 1920, under which the Committee were acting at the time of this commitment for contempt. We have been unable to bring ourselves to believe that we can consistently uphold it. The *340 Committee of the Legislature that adjudged Youngblood in contempt was beyond doubt a collection of persons of the Legislative Department of our government. Article 2 of our Constitution contains but one section, which is as folows:
"Departments of Government to be kept distinct, — The powers of the Government of the State of Texas shall be divided into three distinct departments, each of which shall be confided to a separate body of magistracy, to-wit: Those which are Legislative to one, those which are Executive to another, and those which are Judicial to another; and no person, or collection of persons, being of one of these departments, shall exercise any power properly attached to either of the others, except in the instances herein expressly permitted."
The Constitution of this State is the highest authority known to us in matters outside the domain of Federal jurisdiction; that article of the Constitution just quoted containing this statement "and no person, or collection of persons, being of one of these departments, shall exercise any power properly attached to either of the others, except in the instances herein expressly permitted," and it being unquestioned that the Committee was such collection of persons of the Legislative Department, there would seem to remain only the questions as to whether they were attempting to exercise power properly attached to the Judicial Department of the government, and if so, — whether there is that anywhere else in the Constitution which "expressly permits" such exercise of power. The annotations to the case of Farnham v. Colman, 117 American State Reports, 944, presents one of the most extended discussions of the question of contempt punishable by various courts and other bodies, to which we have had access. We quote from said annotation:
"The power to punish for contempt is undoubtedly a judicial power, and therefore, statutes undertaking to vest it in tribunals which are not judicial, must be unconstitutional: Whitcomb's Case,
We know of no authority anywhere holding that the power to punish for contempt is not the exercise of a judicial function.
Turning to the other question, we have searched through the Constitution in vain for anything that "expressly permits" a Committee of the Legislature, or any collection of persons belonging to the Legislature Department, to imprison for contempt. The only reference to the question of contempt as relates to the Legislature in any way is that contained in Sec. 15, Article 3 of the Constitution, which in terms "expressly permits" each house of the Legislature to imprison for contempt for not exceeding forty-eight hours at any one time. In our opinion under our Constitution, while the Legislature may function through a committee and because of the refusal of any person to answer proper inquiries before the committee, the matter *341 may be reported to the house appointing the committee for its action, and said house of the Legislature may by appropriate proceedings adjudge such person in contempt, and he be thereafter imprisoned for the time specified by the Constitution for such contempt, the Committee itself has no such power because of the forbiddance of the Constitution. We may further observe that in our opinion the power of the Legislature, while in terms limited to imprisonment for forty-eight hours "at any one time," may be exercised time after time for each fresh refusal and each new contempt until it obtains the desired information. We do not think one may only be punished for his contempt of the law-making power of this State in the refusal to recognize its authority to obtain from him information to aid it in its work of representing the people in making laws or maintaining the integrity of the legislative body by the single punishment of forty-eight hours confinement in some jail, if the need continues on the part of the Legislature for such information and the contemptuous witness further refuses after such punishment to divulge what he may know. The interests of the entire State can not be thwarted by the refusal of a witness to divulge knowledge.
Being of opinion that Article 5517, supra, in so far as it attempts to confer power on a committee of the Legislature to punish for contempt, is not only without sanction of the Constitution but is directly contrary to the expressed declaration of that instrument, we must hold said law unconstitutional and reverse this case, and direct a discharge of the appellant.
Concurrence Opinion
It is expedient to write in some detail upon the construction of Article 5517, R.S., which undertakes to confer upon legislative committees in existence at the time of the passage of the law, or upon those thereafter created, the power to punish for contempt. The opinions of our own court in Ex parte Wolters, 64 Tex.Crim. Rep., and Ex parte Gray,
Article 5517 was in force at the time the investigation in the Wolters and Gray matter was had, but the committee did not assume to act under its authority and itself adjudge the parties guilty of contempt, but made report to the house of representatives which then acted under the right expressly recognized in Section 15, Article 3 of the Constitution, that "Each house may punish by imprisonment, during its sessions, any person not a member, for disrespectful or disorderly conduct in its presence, or for obstructing any of its proceedings; provided, such imprisonment shall not at any time exceed forty-eight hours." *342
The decisions of those cases turned upon entirely different points than the one now before us, as is pointed out by Presiding Judge Morrow. We are referred by respondent to only two cases holding that a legislative committee may itself punish for contempt. One is Ex parte Parker,
"The conclusions reached as to the power of legislative committees are sustained by the following authorities: Anderson v. Dunn, 6 Wheat (U.S.) 204; In re Chapman,
If the cases above enumerated were intended to present authority sustaining the right of the legislature to delegate power to a committee to punish for contempt they do not sustain the proposition. In Anderson v. Dunn the House of Representatives of the United States Congress had appointed a committee to make certain investigations; this committee reported back to the House which acted directly in holding the witness in contempt, not of the committee, but of the House of Representatives, and the warrant of commitment under the resolution was signed by Henry Clay who was then speaker of the House of Representatives. In Chapman's case he refused to answer questions propounded by a committee appointed by the United States House of Representatives. The committee did not assume the right to punish him for contempt for such refusal, but he was prosecuted for a misdemeanor in the Federal Court under an Act of Congress making such refusal a violation of law, and this Act of Congress was attacked as being unconstitutional. The question of the right of the committee to punish for contempt was not discussed, and did not arise in that case. In Burnham v. Morrissey, Burnham refused to answer questions propounded by the House of Representatives of the State of Massachusetts. The committee reported the refusal to the House and the House of Representatives adjudged him guilty of contempt, not the committee. In People v. Keeler, Keeler refused to answer questions propounded by a committee appointed by the Senate of the State of New York. The committee reported to the Senate and that body brought the witness before them and adjudged him guilty of contempt. The other two case of People v. Sharp (supra) and Gunn (supra) neither support the proposition that a committee appointed by the legislature may itself hold a witness in contempt of such committee. The case of Sullivan v. Hill, (supra) recognizes *343
that In re Davis,
In the case now being considered the legislature has appointed its own members on the committee and undertaken to clothe that committee with larger judicial power than the constitution (Art. 3, Sec. 15) conferred upon the legislature itself. We quote from Cooley on Constitutional Limitations, 6th Edition, page 161:
"Each house must also be allowed to proceed in its own way in the collection of such information as may seem important to a proper discharge of its functions, and whenever it is deemed desirable that witnesses should be examined, the power and authority to do so is very properly referred to a committee, withany such powers short of final legislative or judicial action asmay seem necessary or expedient in the particular case. * * * A refusal to appear or to testify before such committee, or to produce books or papers, would be a contempt of the house; butthe committee cannot punish for contempts; it can only report theconduct of the offending party to the house for its action."
In re Davis,
"That legislative bodies have the power to enforce obedience to their rules of order and to compel witnesses to give testimony upon matter calling for legislative action, though sometimes questioned, is well established, and should be regarded as the settled law. Story on the Constitution, vol. 1. Sec. 846, et seq; Cooley's Constitutional Limitations, (6th Ed), 158, et seq.; Anderson v. Dunn, 6 Wheat, 204; In re Flavey,
The language in the opinion necessarily refers to the Constitution of Kansas as not expressly giving to the legislature the right to punish for contempt, and therefore the court bases its opinion upon the inherent right in the legislature to protect itself and enforce its legislature functions. The absence from the constitution of that state of any express authority to punish for contempt caused the court further to say "The limits of the power so implied are not clearly marked." The constitution of our own state does not leave the legislature in such a position. It has spoken clearly in Article 3, Sec. 15, and upon the powers therein recognized the Constitution places limitations and they are clearly marked. While the opinions in the Wolters and Gray cases (supra) use some expressions with which we are not in accord, as pointed out in the opinion of Presiding Judge Morrow, yet all of those opinions, as we understand them, recognize that the Article and Section of the Constitution just referred to places limitations upon judicial functions to be exercised by each branch of the legislature in matters relating to contempt. This is further emphasized by Article 2 of our Constitution dividing the powers of government into legislative, judicial and executive, and in adding the very significant words:
"and no person or collection of persons, being of one of these departments, shall exercise any power properly attached to either of the others, except in the instances herein expressly permitted."
We have therefore not been able to bring ourselves in accord with the proposition of respondent that the Legislature can delegate to a committee of its own members the right to exercise the limited judicial authority granted by the Constitution to the Legislature itself. There is no express grant in the constitution permitting this to be done. We have been unable to reach the conclusion that the legislature would have any right to delegate the limited judicial authority expressly conferred upon it by the Constitution.
The judgment holding relator must be reversed, and he ordered discharged. *345
