| N.J. | Oct 17, 1938
Lead Opinion
The decree appealed from will be affirmed, for the reasons stated in the opinion filed in the court below by Vice-Chancellor Kays, and reported at
Dissenting Opinion
A legislative body has the inherent right, either directly or through committee, and by compulsory process, to obtain information that is pertinent to its duties. McGrain v.Daugherty,
The usual and by far the predominant function of a legislature is to pass laws. It follows that the assembly had the right to obtain information legitimately pertinent to the subject-matters upon which it was called to legislate. The elections constitute an essential and an exceedingly fertile subject of legislation. None more so or more appropriately so. The right to obtain information pertinent to the holding of elections is inclusive of the right to question an election *352 officer as to the actual distribution of duties between him and his fellow board-members in the counting of the ballots. There is no doubt in my mind of the authority of the assembly to seek enlightenment on the manner in which elections are actually conducted, and to seek it with the aid of compulsory process. Any other view would cut directly and seriously into the roots of our form of government.
Let us, then, consider whether the questions which the witnesses refused to answer and upon which the right of the assembly is challenged came reasonably within the scope of the power we have been discussing. There were three persons subpoenaed: James Martin, Christopher J. Kelly and John J. Gangemi, the respondents herein. These persons ignored the subpoenas but were produced upon warrants, and each was asked at least one specific question and a general question. The specific question to Martin and the answer thereto are as follows: "Q. Did you tally the votes in the third ward of the ninth district on the evening of November 2d 1937? A. I refuse to answer that on advice of my counsel." Kelly's question and answer were these: "Q. Were you the member of the election board of the third ward, ninth district, Jersey City, on November 2d 1937, who read the ballots? A. I refuse to answer on advice of counsel. That goes for all." The specific question put to Gangemi and the answer given were: "Q. Were you the inspector in the third ward, ninth district in Jersey City, on November 2d 1937? A. I refuse to answer on advice of my counsel." The general question asked of Martin and the answer thereto, which may also be taken as typical of the other two instances, were: "Q. I take it that on advice of your counsel you now refuse to answer all questions which may be put to you concerning your conduct as a member of the election board of the third ward, ninth district, Jersey City, on November 2d 1937? A. Yes, sir." What could be more apt than the inquiries thus made, and how could refusal to answer be more positive? The specific questions come squarely within my conception of what the assembly was entitled to ask and to have *353 answered. They were clearly introductory and they in nowise constituted an inquiry into crime. With a wide field of pertinent inquiry upon the subject-matter of election machinery, its present operation and the opportunities for improvement, to which the unanswered questions would have been preliminary, we have no justification for assuming that if these questions had been answered subsequent ones would have concerned subjects beyond the pale of legislative inquiry. It would be quite wrong to resolve the appeal against a co-ordinate branch of the government upon the assumption that had these lawful questions been answered, unlawful ones would have followed. If the answers to the general questions are to have any weight, they conclusively establish that, however pertinent or proper the question, the witness would not answer if it concerned his conduct as a member of the election board.
It is said, however, that the non-admissibility of the questions has been established by our decisions in the two HagueCases, In re Hague,
The first of the Hague Cases grew out of the acts of a legislative investigating committee appointed under Joint Resolution No. 13. P.L. 1928 p. 808. The resolution authorized the making of a survey inter alia of "all questions of public interest, to investigate violations of law and the conduct of any state official, state department, commission, board or body." This court divided equally upon the question whether the decree below should be affirmed, and the mechanical result of that even division was that the decree below stood as though it had been affirmed or, as the expression is, it was affirmed by a divided court; but that affirmance was in no way an approval of the reasons expressed by the vice-chancellor below. However, while this court divided on the question of affirmance, it was unanimous in holding that the joint resolution, taken as a whole, was a valid exercise of legislative power, even if some one or more of the inquiries authorized therein might be unlawful, that the subpoena was lawfully issued and lawfully required the witness' attendance before the committee notwithstanding the assumed inclusion therein of illegal requirements for the production of documents *355 and that it was lawful to order a warrant for the arrest of the witness to bring him before the legislature. So we have it that the legislature may, by committee, investigate into matters within its purview and that the inclusion of unlawful inquiries within the stated purpose does not invalidate the resolution if there is inclusion of lawful activities. Among the duties imposed upon the committee by the assembly resolution now under review was "to ascertain whether the duties of such officials, departments, commissions, boards, bodies and of such county boards of election and of such district boards of election have been or are being lawfully and properly discharged, and to report its findings as a basis for such legislative action as the general assembly may deem necessary and proper." As I view it, the obtaining of the information at which that authority was directed is wholly within the legislative province as determined in the cases above cited. Argument contra is sought to be made upon some of the language used in the opinion upon which the second Hague Case was decided. That argument is not well grounded. The decision was made only a year after the first determination. All of the members of the court who voted for it had, with the exception of a justice appointed in the interim, voted in the earlier case in the way I have mentioned. Chief-Justice Gummere, who wrote the opinion in the second case and who, as I have indicated, was one of those who had joined in making the unanimous findings in the first case, obviously saw no inconsistency for he did not undertake to distinguish the former decision — did not so much as mention it — and the syllabi which preface his opinion state no conflicting doctrine. Certainly the disposition of the first case, made only a year before, must have been distinctly in mind.
So, even if it be that the title of the authorizing resolution in the instant cases anticipates, and that the body of the resolution authorizes, unlawful as well as lawful inquiries, the resolution as a whole is not thereby invalidated. Further, the lawful authorization is separable from those proposed activities which are denounced as unlawful, wherefore, under well *356
known rules of construction (Hudspeth v. Swayze,
The questions which the respondents refused to answer were obviously aimed at ascertaining the functions which the respective members of the election board undertook to perform in the election count. The assembly resolution authorized such an inquiry and was, as I believe, at least to this extent, a lawful exercise of constitutional legislative power. My conclusion is that the decree below should be reversed and the proceedings onhabeas corpus dismissed.
I am authorized to say that Mr. Justice Parker and Judge Wells concur in the foregoing views.
For affirmance — THE CHIEF-JUSTICE, TRENCHARD, BODINE, DONGES, HEHER, PERSKIE, PORTER, HETFIELD, DEAR, WOLFSKEIL, RAFFERTY, WALKER, JJ. 12.
For reversal — PARKER, CASE, WELLS, JJ. 3. *357