58 Kan. 368 | Kan. | 1897
Lead Opinion
“ There is hereby appropriated, three thousand dollars to pay expenses of committee officers, clerks, stenographers, witnesses and other necessary expenses incurred in an investigation for bribery as recited in Senate resolution No. 26, or so much thereof as may be necessary : Provided, That said sum shall not be available if criminal prosecution shall be instituted in the District Court of Shawnee County on or before May 15, 1897 ; and provided further, That said investigation shall terminate when said sum of three thousand dollars shall be expended under penalty of forfeiture to the State treasury of the whole sum herein appropriated, and no part of this sum shall be available until the investigation shall be terminated and the aggregate expense submitted to the Auditor of State under oath of the committee of investigation ; no mileage shall be paid in excess of five cents per mile, and the Auditor of State is hereby authorized to draw his warrants upon the Treasurer of State upon properly authenticated and detailed vouchers for the purposes above named in accordance with the conditions hereinbefore stated and when approved by the chairman of said committee.”
This act was approved March 15, and appears as chapter 11 of the Laws of 1897. The clause quoted lacks much of ‘being clear or explicit, but it seems to contemplate a session of the committee after the fifteenth of May, rather than before, and evidences intent on the part of the two houses that the committee should sit after final adjournment.
The petitioner is restrained of his liberty. He asks that he may be discharged from that restraint. He is entitled to that discharge unless the respondent can show lawful authority for his restraint. Bill of Rights, §§ 1, 18. It will not be contended for a moment that the Legislature has general power to imprison citizens, or that any one may impose a sentence
“The judicial power of this State shall be vested in a Supreme Court, district courts, probate courts, justices of the peace, and such other courts, inferior to the Supreme Court, as may be provided by law; and all courts of record shall have a seal to be used in the authentication of all process.”
It is not claimed, and could not with reason be urged, that the committee which issued this warrant is a court; for, under the provision of the Constitu
“Any committee appointed by the Senate and House of Representatives of this State to investigate the conduct of any officer, board, committee, or department of State, or any other matter, shall have the power to issue subpoenas in the name of the State, to compel the attendance of witnesses from any part of this State, the production of any book or papers, and generally shall have the same power with reference to procuring testimony bearing upon the subject-matter under investigation as the district court would have in any case on trial in such court.”
This act does not purport to create tribunals of any kind, but to confer powers on all committees thereafter appointed ; and by the fourth section it is made to apply to a committee appointed by the House of Representatives at the session of the Legislature at which the act was passed. The case of People v. Learned (5 Hun [N. Y.] , 626), much relied on by counsel for respondent, is very different in its facts. There, the Governor, with the advice and consent of the Senate, had, under a joint resolution, appointed commissioners to investigate the affairs of the canals of the State. After the appointment of the commissioners, none of whom were members of the Legislature, an act of the Legislature was passed in due form, which appears as
Something is said with reference to the supremacy of the Legislature unless restricted by express constitutional provision. If this supremacy be conceded, it is supremacy in making laws; supremacy in the exercise of legislative functions. Certainly it has no supreme executive or judical power. In the case of In re Gunn (50 Kan. 155) it was not doubted by counsel for either party, or by any member of the court, that the court had power to inquire into the legality of Gunn's restraint. The divergence of opinion in that case was as to the scope of the inquiry. The commitment was by the House of Representatives itself, not by a committee, and it was treated on all hands as settled law that the House might punish for a contempt of its authority.
In recent cases the question as to the power of the' Legislature to authorize officers other than courts to punish as for contempts, where directly conferred in explicit terms, has been considered and denied. In the case of In re Sims (54 Kan. 1), it was held, that ‘1 paragraph 2543 of the General Statutes of 1889, so far as it attempts to confer on county attorneys the power to commit witnesses for contempt on account of a refusal to be sworn, or testify, as provided in this section, is unconstitutional and void.” In the recent case of In re Huron (ante, p. 152, 48 Pac. Rep. 574), decided by this court, as at present constituted, on April 10, 1897, it was held, Mr. Justice Johnston dissenting, that "a notary public has no power to commit for contempt a
That legislative bodies have the power to enforce obedience to their rules of order and to compel witnesses to give testimony upon matters calling for legislative action, though sometimes questioned, is well established, and should be regarded as the settled law. Story on the Constitution, vol. 1, § 846, et seq.; Cooley’s Constitutional Limitations (6th ed.), 158, et seq.; Anderson v. Dunn, 6 Wheat. 204 ; In re Flavey, 7 Wis. 630 ; Ex parte McCarthy, 29 Cal. 395 ; Cushing’s Law and Practice of Legislative Assemblies (9th ed.), § 655 ; In re Gunn, 50 Kan. 155. The power to punish as for a contempt resides in the houses separately; and, while a refusal to testify before a committee duly appointed is a contempt of the house appointing such committee, and may be by it punished as such, the committee has no implied power to punish, and can only report the conduct of the offending party to the house for its action. Cooley on Constitutional Limitations, 161. The power to punish as for a contempt is not expressly given to the houses of the Legislature by the Constitution, but is taken by implication because necessary to the independence and integrity of these bodies. The limits of the power so implied are not clearly marked. They arise from necessity, and cannot extend beyond the limits of necessity. 2 Bishop’s Criminal Law, § 250. The extent of the punishment to be inflicted, while resting in the discretion of the legislative body imposing it, has never been held to extend beyond fine and imprisonment; and where imprisonment is imposed, it has always been held to terminate
That the Legislature may confer on courts the power to imprison for an offense against the law, is undoubted. It is also clear that the refusal of a witness to testify before a legislative committee may be made van offense punishable by fine and imprisonment. Chapman v. United States, 5 Appeal Cases (D. C.), 122. In re Chapman, 17 Sup. Ct. Rep. 677. It cannot be said that the act of 1891 creates, or attempts to create, courts of any kind. Nor does it attempt to confer powers on courts to be thereafter established. Its terms clearly contemplate that the powers mentioned are intended to be conferred on committees of the houses of the Legislature as arms of the legislative department of the government, and not as parts of the judicial system. May the Legislature confer on a committee the power to punish recusant witnesses, not judicially, but as a branch of the legislative department of the government? The claim that it might do so would be, indeed, a novel one. The houses of the Legislature are vested with the lawmaking power of the State. The Constitution expressly authorizes the Legislature to confer on tribunals transacting the county business of the several counties powers of local legislation, and also to make provision by general law for the organization of cities, towns, and villages, and to restrict their powers. Aside from the special cases in which legislative powers are expressly allowed to be delegated, the Legisiature itself must exercise the legislative functions. Its power to punish for contempt of its authority comes as an incident to its powers of legislation. Neither
“ The inquiry whether a witness before the commission is bound to answer a particular question propounded to him, or to produce books, papers, etc., in his possession and called for by that body, is one that cannot be committed ’to a subordinate administrative or executive tribunal for final determination. Such a body could not, under our system of government, and consistently with due process of law, be invested with authority to compel obedience to its orders by a judgment of fine or imprisonment.”
To hold that a committee of the Legislature may be given unrestricted power to punish for contempts, is equivalent to saying that the committee, which is a mere branch and arm of the law-making body, may exercise greater power than the house itself possessed. After the adjournment of the Legislature, the Senate and House of Representatives became dormant. Their powers have utterly ceased, for the time being, and those of the House of Representatives are completely at an end, unless the Governor sees fit to con
The conclusion reached is, that, while the committee may lawfully sit and take testimony, and while the refusal of a witness to answer proper questions propounded by the committee is a contempt of the
The petitioner will be discharged.
Dissenting Opinion
(dissenting). I dissent from the order discharging the petitioner, and dissent from all that has been said by Mr. Justice Allen in his opinion/ denying the power of the legislative committee to vin-\ dicate itself by an order of commitment. The prisoner’s contention in this case constitutes a striking instance of the latter-day tendency to minimize the power of the legislative branch of the government and extend and magnify that of the judiciary. It has become the fashion for persons unwilling to subject themselves to the wholesome provisions of legislative authority to rush to 'the courts with a plea of persecution, and, in the name of some theory of popular right, demand immunity from the restraint imposed. So frequently have the judges yielded to the importunities of this class, that the fact of this being a government of delegated legislative power is becoming obscured in the popular mind, and its place usurped by a fancy, nebulous and indistinct, but fast outlining and shaping itself, that the j udiciary is the final and supreme authority, sitting in censorship and correction over the other branches of government. “ Government by injunction,” “government by habeas corpus” and “government by the courts” are really losing those contemptuous and protesting significations with which
It is now too late, for any effective purpose, to deny the right of the courts to sit in judgment upon acts of the Legislature. Accumulated precedent has established such right beyond the questioning of one judge or even of many judges. If, however, it
In the early days of the Republic, an assumption by the courts of the right to invalidate acts of the Legislature was bitterly resented. The judges of Rhode Island and of Ohio were impeached for assuming such power, and those of Virginia resigned under a storm of censure on account of like conduct. Not until the decision of the Supreme Court of the United States in Marbury v. Madison (1 Cranch, 51) did the controversy over the disputed question begin to abate ; but Chief Justice Marshall, who in that case affirmed the existence of the power, had some years previously, as counsel in the case of Ware v. Hylton (3 Dallas, 211), declared :
“ The legislative authority of any country can only be restrained by its own municipal constitution ; this is a principle that springs from the very nature of society ; and the judicial authority can have no right to question*386 the validity of a law, unless such a jurisdiction is expressly given by the Constitution.”
That such jurisdiction is expressly given by the Federal Constitution, or by the constitutions of the states generally, will hardly be asserted. But, “ as if increase of appetite had grown by what it fed on,” one assumption of power by the courts has but given courage and capacity for another, until from a hesitating, apologetic refusal to effectuate legislative acts clearly violative of'constitutional right, we have grown to arrogate the prerogative of controlling executive acts, settling questions of legislative membership, condemning forms of legislative procedure, enjoining the enforcement of legislative provisions, marking out the scope and policy of legislative inquiries, and, generally, of directing the plan and supervising the machinery of political government. So far as I am concerned, I shall refuse to join in any assumption of constitutional jurisdiction beyond those boundaries which are already defined, defended by impregnable walls of precedent, and yielded over as undisputed ground.
The first and principal act of municipal control is the making of laws. Leaving out of view, for the moment, the people in their primary capacity as the fountain of authority, and looking only at the source from which it directly and proximately proceeds, it is inevitably perceived that power resides in the legislative body alone ; and, furthermore, that in a natural sense it is the only tribunal to which primary power has been or can be confided. As a depositary of delegated authority, the Legislature is the only logical and necessary provision,of nature in its bearing upon the government of men. All other powers are of secondary delegation from it. Governors and judges are but creatures of legislative fashioning and executioners
"It has been customary to consider government under three distinct general heads; the legislative, the executive and the judicial. But, if we permit our judgment to act unencumbered by the habit of multiplied terms, we can perceive no more than two divisions of power of which civil government is composed, namely, that of legislating or enacting laws, and that of executing or administering them. Everthing, therefore, appertaining to civil government classes itself under one or other of these two divisions. So far as regards the execution of laws, that which is called the judicial power is strictly and properly the executive power of every country. It is that power to which every individual has an appeal, and which causes the laws to be executed.” Paine's Rights of Man, part II, ch. 4.
Courts are but instrumentalities of executive power. Except as arbitrarily created, they constitute no separate department of the political state ; and the work of defining the law, in the process and to the end of its execution, is as much the exercise of executive power as the delivery of the blow, with the fashioned and completed instrument, by the executive arm and in vindication of the executive right. In the domain of municipal law, as in everything else, we may sub
Let it be understood that the binding force of the divisions of power made by the Constitution is recognized. Attention is called to the essential nature of the power, as it existed before and lies back of the artificial classification made, only for the purpose of aiding to a construction of its terms.
I do not believe it was the intention of the masters of political science who framed and set in motion the machinery of this Government to disregard the fundamental character of legislative and executive power, and of judicial power, so called, and invert the order of nature by elevating the agent above the principal, the creature above the creator, and magnify a mere function of one of the parts of the system into the life and dominance of the system itself.
:
"We are not left, however, to the necessity of reasoning upon questions of fundamental principle to determine the case in hand. What is said above is only to indicate the base out of which grows the deep-seated aversion I have to attempts by the courts at the nullification of the popular will as expressed by the representative assembly. It is no justification of such attempts that much of legislative action is awkward, stupid, extravagant, useless, or positively corrupt and vicious. We are invested with no power of correction of the education, manners, or morals of the legislative branch. The people, in their sovereign capacity, have conferred upon that branch legislative power; and whatever that is it may freely exercise. What is legislative power? Primarily and principally, it is the power to declare rules of action for the govern
In the opinion of the majority of the court, there is an emphasis of assertion that the power to imprison is, judicial in its nature ; that it is not to be lightly implied, but must exist in concrete and defined expression. No attempt is made, however, to point out the specific constitutional provision which, through its implications, prevents the general grant of legislative power from authorizing imprisonment in this or any other like class of cases. It may well be conceded that the statutory enactment under which a power to
The gravamen of Mr. Justice Allen’s decision is, that the witness cannot be punished as for a contempt of legislative authority, because the Legislature-is not in session and therefore does not exist as an object of contempt; and that the statute of 1891, which assumes to vest legislative committees sitting beyond the legislative session with power to punish for contempt, is ineffectual, as being an attempted delegation of legislative power. This view is predicated on the assumption that, upon the close of a legislative session, the power to perform all acts legislative in character ceases ; that no power which the Legislature, sitting as a joint body, or which either house sitting separately, is qualified to exercise, can thereafter be exercised in its or their behalf ; that is, to quote that language of the opinion which to me is quite indefinite, “ no power of final action and decision ” can be so performed. I understand the right of a legislative body to order an investigation, through ah appropriate committee, into matters legislative in character, at a time beyond the legislative session, to be conceded ; but understand the power of the Legislature to put any effective means in the hands of such committee to
This novel doctrine, we are told, is extracted out of the principle that legislative power cannot be delegated ; that, while either house may punish for contempt, it cannot authorize its committees, intrusted with the performance of its business, to do so. The inability of a legislative body to abdicate the duty imposed upon it of making laws — that is, general rules of action for the government of the constituency — and to impose such duty upon another body or tribunal or to relegate it back to the people, is conceded, so far as the refusal of judicial authority to sanction such action is concerned; and it is not necessary here to discuss the fundamental soundness of such doctrine. I know, however, of no authorities which have gone farther, or stated the doctrine in broader terms, than to simply say that the legislature cannot delegate its power to make laws. “The legislature neither must nor can transfer the power of making laxos to any body else, nor place it anywhere but where the people have. ’ ’ Locke on Civil Government, § 142. “ One of the settled maxims in constitutional law is, that the power
The doctrine that legislative power cannot be delegated has never been invoked to nullify acts in abdication of legislative sovereignty, save in the case of attempts to transfer to another the right to enact laws. To the majority of this court, however, belongs the bold distinction of applying it to the defeat of the legislative will in its endeavor to procure information concerning matters vital to the integrity of the legislative branch and to the interests and honor of the State.
It is not necessary for me to assert that the incidental legislative authority to punish for contempt may be delegated to another tribunal and be exercised by it as legislative power. It is sufficient for my purpose to point out the fact that the rule invoked in this case is the rule that the power to make laws cannot be delegated, and that heretofore no court has applied it farther than as thus stated.
But I assert that the power conferred by the concurrent resolution in question, in connection with the statute of 1891, is judicial in its nature, and may be rightfully exercised because of such fact. The recent decisions, In re Huron (ante, p. 152), and In re Sims (54 Kan. 1), are not in point against such view. In the Huron case, it was held that a notary public could not receive a grant of power to punish for contempt; but such decision was rested upon the ground that a notary’s office was not judicial in its nature, and that a notary public was not a “court,” in the sense in
That the Legislature ought to have manifested a specific and sensible design by, in terms, directing the making and filing of a report, may be conceded; but to rest a claim of constitutional invalidity of its action upon its failure to give such direction, would be a most unwarranted extension of judicial prerogative. I assert it to be entirely competent for the Legislature to direct an investigation into a matter of public concern, solely for public information, and with no other object in view than the dissemination of such information through the public prints. Without elaborating farther, I only care to say that the precise question here involved, as I view it, was determined by the Supreme Court of New York in the case of the People v. Learned, 5 Hun, 626. The syllabus to that case reads as follows :
“ In March, 1875, a commission was created by concurrent resolution of Senate and Assembly, to investigate the affairs of the canals of this State. Upon the hearing of an application for the discharge of a person committed by the commission for contempt in refusing to produce before it certain books and papers, it was insisted that such a commission could only be created by bill enacted by both branches of the Legislature and signed by the Governor. Held, that there was no clause in the Constitution expressly prohibiting the creation of a commission by concurrent reso*395 lution; and that, when not expressly prohibited, the legislative power was unrestricted and unlimited.
“The act (chapter 91, Laws of 1875) provided, that in case of the refusal of a witness to obey the subpoena, he should be brought before the commission by attachment, and that ‘ the like proceeding shall hereupon be had as if such commission was a court of record and such witness had been duly subpoenaed to attend before it.’ Held, first, that the act was not in conflict with the constitutional provision declaring that no person shall be deprived of life, liberty, or property without due process of law ; second, that the act was not in conflict with section 17 of article 3 of amended Constitution, providing that no act shall be passed which shall enact that any existing law shall be deemed a part of, or applicable to, the said act, except by inserting it therein ; third, that the said commission was empowered to issue subpoenas to enforce the attendance of witnesses and to compel the production of books and papers, and to adjudge any person willfully refusing to produce such books and papers guilty of contempt and commit him therefor.”
The statements of law thus made are satisfactory to me, and I think should control the decision in this case.
But it is said that the case cited differs in a material respect from the one under consideration. That difference, we are told, consists in the fact that, while in both cases the committee was appointed under legislative resolution, and not by statute, yet, in New York, the power to commit for contempt was conferred by special act, passed at the same session, and applying to such committee alone ; while with us, the power is conferred by a general law, passed some years ago, and applying to all committees then or thereafter to be appointed. In other words, the exercise of the power is made to depend upon whether the act in question is special or general. The Legislature may empower one committee, but not more than-one.
If the essential soundness of the decision in the People v. Learned be not denied, and I do not understand that it is, it applies to this case. There is absolutely no difference between it and the present case, either in point of fact or principle.
But it is urged, against the view taken of the judicial nature of the powers.conferred upon the committee, that it cannot be regarded as a court, because under the .constitution “courts” can only be “provided by law” ; that is, by bill, with title, enacting clause, formal enactment and executive approval; whereas this committee was authorized by resolution only. The attempt to draw this distinction is a shifting of the real ground of contention. The question is not how the members of the committee may be designated, nor how the subject-matter of their inquiry may be pointed out to them, but in what manner the judicial power to issue compulsory process and to compel the giving of testimony may be conferred. That the Legislature is powerless to confer upon one of its committees, by formal statutory enactment the judicial authority to summon witnesses and pun ish for contempt, simply because it had not by another formal statutory enactment authorized the appointment of such committee, is refining upon the constitutional powers of that body to a high degree indeed.
But this committee, or court, was “provided by law” ; that is, its powers were provided by law, and that is what the Constitution means. That the appointment of committees such as the one in question, and the designation of a subject-matter of inquiry, by