THE SPECIAL ASSEMBLY INTERIM COMMITTEE ON PUBLIC MORALS OF THE CALIFORNIA LEGISLATURE, Appellant, v. HARRY A. SOUTHARD et al., Respondents.
L. A. No. 16753
In Bank.
May 6, 1939.
33 Cal.2d 497
Melvyn I. Cronin, as Amicus Curiae, on Behalf of Appellant.
George W. Rochester for Respondents.
THE COURT.--A rehearing was granted in this matter in order that a reexamination of the law applicable thereto might be made in the light of further arguments advanced in the petition for rehearing. Such reexamination has convinced us that to announce a contrary conclusion would be in disregard of established law on the subject in this and other jurisdictions, and that we would not be justified in taking such a course. The power here sought to be exercised by a single house of the legislature has uniformly been denied whenever it has been questioned. The fact that interim committees have been appointed by single house resolutions and have heretofore carried on without objection is beside the point. Their authority is now vigorously attacked in this proceeding. The problem is not one of a restrictive or liberal construction of the law applicable to the powers of the legislature. A single house is not the legislature. The decision herein does not prevent the appointment of interim committees to investigate and report to the next legislature. It is clearly pointed out that they may be
“This appeal presents for determination the question whether the state assembly by single house resolution during a regular session of the legislature may lawfully create an investigating fact finding committee with power to function after the adjournment of the legislature sine die.
“The assembly, at the fifty-second session of the legislature, while the legislature was in session, in May, 1937, passed house resolution No. 171. This resolution recites that in the past the assembly has customarily adopted resolutions creating interim committees to study and investigate problems of public concern; that these committees in the past have developed facts and information valuable to the assembly in proposing legislation; that it appears desirable that such committees be consolidated for better efficiency and for reasons of economy ‘so that they may better study upon a broader scope the various problems of governmental concern to the end that these committees may determine upon desirable changes in, or additions to, the statutory laws of the State of California, and to recommend such changes and additions to the fifty-third session of the legislature thereby rendering a valuable legislative service to the people of the State of California‘. The resolution then created 10 interim committees, including appellant, the Assembly Interim Committee on Public Morals, and in addition created a special coordinating committee with power generally to supervise the work of the various committees and with power to control the expenditures of such committees. In reference to the committee here involved the resolution provides: ‘That there are hereby created certain Assembly committees to function during the interim between the fifty-second and fifty-third sessions of the Legislature . . . to wit: . . .
“The resolution further provided that ‘the sum of twenty-five thousand dollars ($25000) is hereby appropriated and set aside from the contingent fund of the Assembly, for the purpose of paying the expenses of the committees created by this resolution, including costs of any records and transcripts, and an allowance of $8 per day (in lieu of expenses for living accommodations and meals) and 5½ cents per mile each way, incurred in connection with the powers granted and duties imposed by this resolution . . .‘. Each of the committees was ‘authorized and empowered to summon and subpoena witnesses, require the production of papers, books, accounts, reports, documents, records and papers of every kind and description, to issue subpoenas and to take all necessary means to compel the attendance of witnesses and to procure testimony‘. The resolution also authorized the members of such committees to administer oaths, and the pertinent provisions of the Political Code relating to the attendance and examination of witnesses before the legislature and its committees were made applicable to proceedings before each of the newly created committees.
“The fifty-second session of the legislature adjourned sine die on May 28, 1937.
“The committee here involved called a meeting of its membership to be held in Los Angeles on February 7, 1938, ‘for the purpose of determining whether vice and crime in the State of California, and more particularly in the city and county of Los Angeles was so widespread and notorious as to require additional legislation for its control and suppression‘. The committee met at the time and place specified, and thereupon proceeded to administer the oath and question the 11 respondents who had been subpoenaed and who were then in attendance. It is not disputed that all of the proceedings up to this point were regular in all respects, if the committee
“1. That the committee was not lawfully created, in that the assembly is without power to create a committee by a single house resolution with authority to sit after adjournment sine die; and;
“2. That even if lawfully constituted, as to many of the questions, the committee had exceeded its inquisitorial powers.
“The trial court thereupon entered its judgment discharging the order to show cause, denying the petition, and dismissing the cause. From this judgment (and as well from the opinion and minute order of the trial court) the committee has appealed.
“The cause has been exhaustively and ably briefed by both appellant and respondents. As already indicated, the main question presented on this appeal is whether the assembly may lawfully create an investigating committee by single house resolution with power to sit after the legislature has adjourned sine die. On behalf of appellant it is urged that the legislature is a continuing body; that incidental and auxiliary to the lawmaking power is the power to appoint committees for the purpose of investigation; that this power is necessarily implied from the express powers conferred on the legislature by the Constitution; that this implied power exists not only during legislative sessions but also during the interim between sessions; that from a practical standpoint this power must exist because during the sessions time is not
“The parties concede that there is no provision of the Constitution expressly conferring or denying the challenged power, but both refer to certain provisions which it is contended impliedly support their respective positions. The more important provisions referred to are
“Under these constitutional provisions it is obvious that the major function of the legislature is that of enacting legislation. This power is expressly conferred by the Constitution. This power necessarily presupposes that the members of each house of the legislature must investigate the necessity for legislation. It is impractical that the entire membership should participate in such preliminary investigation. Consequently, it is well settled by practice and decision, that incidental and auxiliary to the express power conferred, the legislature and each house thereof has the inherent and implied power to appoint committees for the purpose of obtaining information concerning proposed legislation, and reporting back their findings to the body appointing them. From a practical standpoint this implied power must exist in order that the legislature may properly discharge its functions. It is equally well settled that such committees with power to sit during a session or during the constitutional recess between sessions, may be appointed by single house or concurrent resolution. (In re Battelle, 207 Cal. 227 [277 Pac. 725, 65 A. L. R. 1497]; Ex parte Lawrence, 116 Cal. 298 [48 Pac. 124]; Ex parte McCarthy, 29 Cal. 395; Fergus v. Russel, 270 Ill. 304 [110 N. E. 130, Ann. Cas. 1916B, 1120]; Dickinson v. Johnson, 117 Ark. 582 [176 S. W. 116, Ann. Cas. 1916B, 1067, L. R. A. 1915E, 496].) In the Battelle case, supra, the investigating committee was appointed by a single house resolution, and the committee was authorized to and did sit during the constitutional recess required under
“The theory of the above-cited cases holding that a single house resolution cannot lawfully create a legislative investigating committee with power to sit after the legislature adjourns sine die seems to us to be unanswerable. Although stated in different ways, it is basically this: Under the various state constitutions, including that of California, the legislature, with the approval of the governor, has the power to legislate-that is the power to make laws; each house of the legislature has the power to initiate legislation; incidental to and implied from this power to legislate, each house has the implied and auxiliary power to appoint committees for the purpose of aiding it in the proper performance of this function; this power to appoint committees exists by implication, only because of the existence of the express power to legislate; consequently, when the power to legislate ceases, then the power to investigate for the purpose of aiding the legislature in exercising this power ceases, or stated another way, when the main power of legislating dies the incidental or implied power dies with it; that upon adjournment sine die the legislative powers of both houses of the legislature cease; that thereafter the members of the legislature have no legisla-
“These principles were succinctly summarized in Ex parte Caldwell, supra. After pointing out that upon adjournment the power of each branch of the legislature as far as its power to legislate is concerned ceases, the West Virginia court stated (p. 911): ‘When the powers of one branch are ended, the powers of the other branch are ended. If we give effect after adjournment to the mere resolution of one branch, it is in effect the continued power of that single branch. If the powers of that branch are at an end, the powers of a committee appointed by it are also at an end. The limb cannot exist after the body has perished. The agent or deputy cannot act after his principal is extinct. If the branch cannot act, how can a committee act deriving its life from the branch?’
“In Tipton v. Parker, supra, the Supreme Court of Arkansas summarized its conclusions as follows (p. 298): ‘The Senate has no power by resolution of its own to extend its session, and neither did it have power by such separate resolution to continue its committee, a mere agency of the body, beyond the term of the body itself which created it. Each house, says Judge Cooley, 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 the authority to do so is very properly referred to a committee, with any such powers short of final legislative or judicial action as may seem necessary or expedient in the particular case. Such a committee has no authority to sit during a recess of the house which has
“As already indicated the only case contrary to those above cited is McGrain v. Daugherty, supra. In that case the United States Supreme Court, without reference to the cases holding to the contrary, held that the United States Senate lawfully by resolution could create a legislative committee with power to sit after the adjournment of Congress. The court held that probably the House of Representatives cannot appoint a committee with power to sit after adjournment because its members, like the California Assembly, are all elected for the period of a single session, but that the senate ‘is a continuing body whose members are elected for a term of six years and so divided into classes that the seats of one-third only become vacant at the end of each Congress, two-thirds always continuing into the next Congress . . . ’
“Appellant refers to several cases holding that by concurrent resolution the legislature may lawfully create a committee with power to sit after adjournment. (Sullivan v. Hill, 73 W. Va. 49 [79 S. E. 670, Ann. Cas. 1916B, 1115]; People v. Backer, 113 Misc. 400 [185 N. Y. Supp. 459]; People v. Hofstader, 258 N. Y. 425 [180 N. E. 106, 79 A. L. R. 1208]; Terrell v. King, 118 Tex. 237 [14 S. W. (2d) 786].) On this subject there is a conflict in the authorities. Several well-reasoned cases hold that the legislature by joint resolution cannot create a committee with power to sit after adjournment-that such committee can only be created by statute. (Dickinson v. Johnson, supra; Fergus v. Russel, supra; Ex parte Hague, 105 N. J. Eq. 134 [147 Atl. 220]; aff. on other grounds, 9 N. J. Misc. 89 [150 Atl. 322].) Several
“Appellant also relies on Phillips v. Riley, 6 Cal. (2d) 414 [57 Pac. (2d) 1308], recently decided by this court as sustaining its position. This case did involve an interim committee, and did hold that such a committee could lawfully incur certain expenses. The opinion states that the committee was created by concurrent resolution, appellant contending that this is an error, the true fact being that the committee was created by a single house resolution. Whatever the true fact may be in this regard, that case cannot be considered as an authority in the present controversy, for the reason that both parties to that appeal conceded that the committee was validly created. The opinion is very short. At page 415 it is stated: ‘The due appointment of the committee by joint action of both houses of the legislature is not challenged, nor is it charged that the committee has not full power and sufficient authority to carry out the letter and spirit of the resolutions creating it.’ The point involved in the present controversy was not only not passed upon but was conceded by the parties. We find nothing helpful in In re Connolly, 16 Cal. App. (2d) 709 [61 Pac. (2d) 490], also cited by appellant, the point here under discussion not being involved or discussed.
“Appellant‘s last argument is that the legislature for many years past has created interim committees by single house or concurrent resolution, and that such legislative usage, never before challenged, is entitled to the greatest weight in determining the validity of the appellant committee. The obvious answer to this contention is that usage and custom,
“In view of our conclusion that appellant committee had no legal authority to sit after adjournment of the legislature sine die, no necessity exists for passing on the other question raised, viz., the propriety of the specific questions asked of respondents.”
For the foregoing reasons the judgment appealed from is affirmed.
LANGDON, J., Dissenting.-I dissent.
Section 2 of the same article provides that “The sessions of the legislature shall be biennial, unless the governor shall, in the interim, convene the legislature, by proclamation, in extraordinary session . . . “.
Sections 3 and 4 provide that the “term” of office of members of the Assembly and of the Senate shall be two years and four years, respectively.
Section 23 declares that members of the legislature “shall receive for their services the sum of one hundred dollars each for each month of the term for which they are elected . . . “.
None of the foregoing sections, in my opinion, expressly declares or impliedly infers that either house of the legislature is not a “continuing body“. In fact, said sections appear to suggest a contrary conclusion and for the following reasons: (1) The length of the session is not prescribed or limited-if necessary, it could extend until the date fixed for
In the early case of Ex parte McCarthy, 29 Cal. 395, this court had occasion to declare that “A legislative assembly, when established, becomes vested with all the powers and privileges which are necessary and incidental to a free and unobstructed exercise of its appropriate functions. These powers and privileges are derived not from the Constitution; on the contrary, they arise from the very creation of a legislative body, and are founded upon the principle of self-preservation. The Constitution is not a grant, but a restriction upon the power of the legislature, and hence an express enumeration of legislative powers and privileges in the Constitution cannot be considered as the exclusion of others not named unless accompanied by negative terms. A legislative assembly has, therefore, all the powers and privileges which are necessary to enable it to exercise in all respects, in a free, intelligent, and impartial manner, its appropriate functions, except so far as it may be restrained by the express provisions of the Constitution, or by some express law made unto itself, regulating and limiting the same. (Cush. Law and Practice of Legislative Assemblies, p. 221.)
“That powers and privileges, therefore, a legislative assembly takes by force and effect of its creation are to be ascertained by a reference to the common parliamentary law. These powers and privileges are classified by Cushing (p. 246) as follows: . . .
“12. To investigate, by the testimony of witnesses or otherwise, any subject or matter, in reference to which it has power to act; . . . ”
It goes without saying that a legislature cannot legislate wisely or effectively in the absence of information respecting the conditions which the legislation is intended to affect or change. Certainly if a legislature needs information con-
The case just above cited, and others that might be mentioned, recognize, and all parties to this litigation concede, that investigation is an indispensable and important incident, and an inherent auxiliary to the proper exercise of the legislative power and that such incidental and auxiliary function may be exercised by either house by single house resolution empowering a committee to sit during the constitutional recess. Inasmuch as the power to legislate continues and exists after adjournment sine die, just as fully and completely as during the constitutional recess, and inasmuch as either house may concededly by single house resolution lawfully create a committee to investigate during the period of such constitutional recess, when technically it is no more engaged in legislating than it is following an adjournment sine die, there would appear to be no substantial reason for denying to either house the right by single resolution to create interim committees for the purpose of carrying on proper legislative investigations. In other words, if the express power to legislate continues and exists (though it be dormant) in the interim between sessions of the adjourned legislative body, it seems reasonable to conclude that the incidental and auxiliary investigatory function likewise continues and may be employed during such period, thus insuring a more effective exercise of the principal legislative function. If this be so, a single house resolution is sufficient to create a lawful interim committee, for under
The question here involved is a novel one in this state, and being peculiar to our constitutional set-up, I have treated the same solely in the light of our constitutional provisions and without regard to the weight of authority elsewhere apparently to the contrary. The decisions of other jurisdictions
SEAWELL, J., Concurring in Dissent.-I concur in the dissent.
The law as announced in the earlier decisions of other jurisdictions, in the absence of constitutional restrictions, is founded on a policy which appeared to be most expedient for the promotion of public welfare as conditions existed in those jurisdictions at the time said decisions were written. The development of the agricultural, industrial and commercial life of this state has been so vast and varied that, in the opinion of the legislature, it has become necessary to adopt expedient methods for the investigation and study of questions which have never before confronted the legislative body. Proper study and investigation of momentous subjects cannot be given to important matters which affect the welfare of the state and which are being pressed for solution without the adoption of the interim system. There being in our Constitution no inhibition against the continuance of the system which has existed during past years, I am of the view that we should not adopt the law as written in the decisions of other jurisdictions at distant periods of time, under wholly different conditions, and with no thought of the complex problems which are hourly calling for study and investigation by the ablest in statesmanship and the science of government. Being free so far as constitutional restraints are concerned, the legislature should be free to adopt its own policy in the transaction of its business.