Dauphin County Grand Jury Investigation Proceedings

2 A.2d 783, 332 Pa. 289, 120 A.L.R. 414, 1938 Pa. LEXIS 788

• Court: Supreme Court of Pennsylvania
• Decided: May 18, 1938
• Docket: 1; 25, Miscellaneous Docket 7
• Status: Published

Opinions

On April 29, 1938, the District Attorney of Dauphin County, on the eve of a primary election, presented to the Court of Quarter Sessions of that county, a petition requesting that a special grand jury be convened to investigate charges made during the campaign against certain public officials and private individuals. The petition presented to the Court of Quarter Sessions, which was the basis of its action, will be found in the Reporter's Notes. The District Attorney did not personally, or through his office, make any investigation of the campaign charges, nor does he aver in his petition that he knew any of the charges to have a basis in fact. Whereupon the Governor of the Commonwealth and the Attorney General presented a petition to this Court in which it was averred that the effect of ordering the grand jury to investigate these combined charges would be to seriously interfere with and hamper the executive branch in its conduct of government, and that the charges were so vague and indefinite that an investigation predicated on them would enable the Grand Jury to pass upon not merely criminal violations, but the efficiency and regularity of the management of the entire executive department. It was also asserted that the Attorney General was the only official who could investigate these charges and that, under the Constitution and the law, a grand jury is not competent to investigate criminal charges aimed at the executive authority. Accordingly, a writ of prohibition was asked. On this petition we issued a rule to show cause and stayed proceedings until the further order of the Court.

The questions involved may be briefly stated to be: May the grand jury investigate the conduct of the executive branch of the State government? Are uninvestigated campaign charges (that is, uninvestigated by the District Attorney) a sufficient basis for convening a grand jury? May a grand jury be convened on a petition which does not charge the commission of any specific offenses, and does not allege the commission of any crime within the jurisdiction of the Dauphin County courts? Has the Attorney General exclusive authority to investigate the conduct of the executive branch of the government? Is the petition for a writ of prohibition premature because made prior to the charge of the court to the grand jury defining the scope of its investigation?

The Governor and the Attorney General are explicit in stating that they do not wish to save from prosecution any person who has been guilty of crime. They also assert that all charges will be speedily and fully investigated by them, and it was stated at the argument that the Attorney General has already taken up the investigation of the charges made and "to that end he has the full and unrestricted approval and consent of your petitioner, the Governor of the Commonwealth."

We recognize the strength of the language used in the Constitution, Article IV, Section 2, providing that the supreme executive power shall be vested in the Governor. We also recognize the effect of Hartranft's Appeal, 85 Pa. 433, that the official conduct of the executive branch of the government is not to be subjected to investigation by the judiciary. The mere fact a crime is charged in connection with, or as a result of, acts performed by the executive branch of government in its official capacity, is not sufficient to warrant the judiciary in undertaking to inquire broadly into the functioning of that branch. And, we may add, it is basic and fundamental in our system of government that the powers of the three coördinated branches of government are and should be separate and kept clear, the one from the other. The judicial branch cannot assume overlordship of the executive or legislative, or vice versa. In Commonwealth v. Widovich,295 Pa. 311, at 322, it was stated: "The judiciary is a constituent or coördinate part of government; it is not subordinate to other powers, nor does it depend for existence on the legislative will. Its powers come directly from the people, without intervening agency. From the very nature of its time-honored powers, it should be kept a separate, distinct and independent entity in government to perform those duties which have been immemorially under the common law imposed on it. The domain of the judiciary is in the field of the administration of justice under the law; it interprets, construes and applies the law. Its powers were possibly the first to be exercised by civilization. Within the compass of its duties it may ascertain and punish crimes against the State, and may, at times, in designated instances, operate as a check on other departments of government; but its strength and security come from a complete and absolute separation from political, administrative or ministerial functions. While in essence it may restrain attempts on the life of the State, and therefore under the common law may protect the State, the judiciary does not assume, nor should it be burdened with, those functions of government which are political, administrative or ministerial, nor does it inter-meddle with the execution of these functions by the proper branches of government unless specifically required to do so by the Constitution. The legislative and executive branches should be, as they are, in a position actively to protect their delegated functions by the passage of an act like the one in question."

We have no disposition to minimize or enlarge the rule ofHartranft's Appeal, nor to enter into a field of conflict where judicial action would unlawfully disturb the conduct of government; this should never be done if the judiciary is to survive. But we do not understand from the petition presented by the Governor that he claims immunity from arrest, prosecution and punishment if he violates the criminal statutes. We do not understand that the Attorney General or counsel for petitioners, in presenting this petition, make any such claim. Everyone knows, or should know, that no citizen of our State or public officer is above the law. All may be punished for criminal violations. As to public officials, this is the plain mandate of our Constitution. Section 3 of Article VI, in dealing with impeachment, states: "The Governor and all other civil officers shall be liable to impeachment for any misdemeanor in office . . .; the person accused, whether convicted or acquitted, shall nevertheless be liable toindictment, trial, judgment and punishment according to law." If we were to hold that the Governor and his official family were immune from criminal prosecution for any crime while in office, it would be possible for a corrupt government to bankrupt the State, and, when apprehended for trial, plead immunity. This never was the intention of the framers of our Constitution and we do not understand the Governor makes any such claim.

We agree with the contention, however, that the wholesale investigation of the vague and indefinite charges contained in the District Attorney's petition, in the form in which it is presented, would seriously obstruct the operation of the executive branch of the government. Here there are eight separate, distinct and unrelated charges involving different governmental agencies, all of which it is proposed to submit to unbounded investigation. This would lead to serious practical results. We do not hold that charges properly instituted, having as their purpose the development and exposure of a system of crime in office, cannot and should not be investigated by the grand jury under proper supervision. The immunity given the executive as to his official acts inHartranft's Appeal would not protect those subordinate officials against whom accusations of indictable offenses are made by the District Attorney from such an investigation, any more than that case would protect the Governor himself from indictment for violations of the criminal law.

The Attorney General, the chief law officer of the State, with the wide powers he possesses, may, through the Quarter Sessions and the District Attorney's office, see to it that the proper administration of the government is not impeded in the course of an investigation by the wholesale removal of books, plans, specifications, and other documents absolutely essential to its functioning. The Superior Court, in an opinion by President Judge KELLER, has held that production of records and documents in the hands of the executive cannot be compelled where the executive officer in the exercise of his discretion determines that such disclosure would be injurious to the public service, or opposed to the best interests of the State (Marks's Appeal, 121 Pa. Super. 181,185); and see Hartranft's Appeal, at p. 447.

Though the Attorney General is given wide powers by the Administrative Code of April 9, 1929, P. L. 177, sections 904 and 908, to investigate any violation of the law within the executive branch, such powers do not exclude an investigation by the grand jury on charges properly presented. Aninvestigation which properly concerns itself with violations ofthe criminal laws in matters incidental to the conduct of government, and does not merely inquire into the official acts of the governing power, as in the Hartranft case, is within the power of the grand jury. But the Attorney General, with his vast powers, recognized by this Court in Commonwealth ex rel.v. Margiotti, 325 Pa. 17, may supplement and supervise the grand jury in any investigation; he may, — and it is his duty to do so if he believes the government is to be hindered in the lawful conduct of its affairs to the detriment of the security, peace and good order of the State, — supersede the District Attorney in the conduct of the entire investigation; or he may, if he believes better results will be obtained, act in conjunction with the District Attorney. We therefore conclude that the Attorney General's investigatorial powers may be supplementary to or merged with those of the grand jury, and may, if advisable, be coördinated in one investigation before the grand jury under his supervision.

The genesis of this call for the special grand jury was the petition or suggestion of the District Attorney. The rule ofMcNair's Petition, 324 Pa. 48, unanimously adopted by this Court, is this: To institute an investigation on such a suggestion the court must have knowledge or definite information from trustworthy sources that criminal acts forming a system of criminal violations of the law have been committed, "and at least one or more cognate offenses should exist on which to base a general investigation." It was there stated at page 62: "There is no power to institute or prosecute an inquiry on chance or speculation that some crime may be discovered: Re Morse, 87 N Y Supp. 721. The grand jury must know what crimes it is to investigate. The court of quarter sessions has no power to set such an inquiry in motion unless it has reasonable cause to believe that an investigation will disclose some criminal misconduct which is within its jurisdiction to punish.

"The grand jury must not be set upon fruitless searches, founded upon mere rumor, suspicion or conjecture. These are proper matters for police investigation. Before reflection is cast upon the integrity of public officials a preliminary investigation by the forces of law charged with the discovery of crime should be made to determine whether there is any real foundation. Such jury investigations involve great expense to the public, subject the citizen to inconvenience and frequently interfere with the normal functioning of public officials and bodies brought before it. They throw a cloud of suspicion upon the parties subject to attack and undermine public confidence in them. There must be a sound, solid basis on which to proceed." See also Commonwealth v. Hurd, 177 Pa. 481;Commonwealth v. Dietrich, 7 Pa. Super. 515; Commonwealthv. Klein, 40 Pa. Super. 352; Commonwealth v. Hackney,117 Pa. Super. 519. It is therefore necessary now to consider whether the information presented by the District Attorney warranted the action of the court in calling the special grand jury.

In McNair's Petition, we had before us the charge of the court; the basis of the present inquiry is the petition of the District Attorney and the judge's call indicating the scope of the investigation predicated on that petition. It is urged that this Court cannot pass upon the lawfulness of the investigation until the court below has given it in charge to the grand jury, because the charge may limit and restrict the scope to matters less extensive than those outlined in the petition. It is sufficient answer to this contention to say that this proceeding was begun on the written suggestion of the District Attorney, and that the grand jury was called upon the information presented in his petition. If the petition does not present matters sufficient to justify the investigation, or disclose matters within the jurisdiction of the court, the call could not lawfully have been made. That is the only question before the Court. Furthermore, the court below convened the grand jury "to investigate and inquire into all matters set forth in the said petition, and any other matters which may properly come before it, including the investigation of any other unlawful conducton the part of any public official or person within thejurisdiction of this Court, . . ." The call, in itself, is for an investigation more sweeping and unrestricted than the petition seeks.

We now come to the more serious portion of our inquiry, and that is the consideration of the specific charges that have been made in the District Attorney's petition. Generally speaking, and this observation applies to each and every one of the eight charges made in the petition, they are vague, uncertain and indefinite, and, as we stated above, an investigation based thereon, if permitted to be carried through as intended, would hinder the State government and possibly cripple its functioning. But charges properly instituted, in accordance with the essential requisites we have outlined and will discuss more fully, would safeguard the State's interests, and should cause no such hindrance. All of the charges in the petition are subject to fatal defects, now to be mentioned, and no indictment predicated on the petition could stand. There is not a single allegation in any of the eight charges of the time when, and the place where, the alleged violations of the law were committed. There is no suggestion that any one was committed within the jurisdiction of the Court of Quarter Sessions of Dauphin County. While petitions of this character need not set forth in detail the evidence on which they rely, we stated in McNair's Petition, and we wish to reiterate it here, there must be at least one specific crime charged as part of a system of related crimes for the discovery of which it is necessary to have the grand jury's assistance. Each of these eight independent charges, covering as they do unrelated offenses, should be treated by separate investigations, though made by one grand jury, and each should set forth definitely one or more cognate crimes, with the parties thereto, forming part of a system of crime, on which to buttress the particular investigation. A grand jury should not be called to investigate one crime alone; that is for the police and magistrates. But, if the crime set forth is part of a system of crime, all may be investigated. As far as every one of these charges is concerned, it is admitted that, beyond the conference with the former Attorney General, the District Attorney has made no independent investigation whatsoever as to their truth.

Taking up these charges separately: Charge (a) deals with the payment of money to State cabinet officers and the Chairman of the Finance Committee of the Democratic State Committee, in return for their "influence" in causing certain legislation to be enacted by the General Assembly. The charge omits the essential designation of the time and place of the transactions to bring it within the jurisdiction of the Dauphin County court. The omission of the time at which they occurred is very important because, from the arguments presented, if there was a crime it would be barred by the statute of limitations. SeeCommonwealth v. Bartilson, 85 Pa. 482; Commonwealth v. Werner,5 Pa. Super. 249; Commonwealth v. Ruffner, 28 Pa. 259, where indictments for crimes barred by the statute were held to be fatally defective. Furthermore, the acts here alleged did not constitute criminal offenses under any statute of the Commonwealth or at the common law. It is not stated that the cabinet officers bribed, or improperly and unlawfully solicited or attempted to solicit, any members of the General Assembly, at Harrisburg or elsewhere, and we cannot infer that they did. No specific legislator is named to whom they talked or attempted to influence. There is no accusation that these persons in exercising their influence did so improperly or for corrupt purposes. None of the officers charged with these acts are members of the State Legislature. In other words, this accusation is broad enough to apply to any person, lawyer or another, who is paid a fee to address a legislative committee to influence it properly in passing certain legislation. The District Attorney states in his brief that it may not have been an indictable offense for representatives of brewery associations to pay money to these persons in return for their influence, but then attempts by inference to adduce certain criminal conduct which does not appear anywhere in the proceedings in this case. The charge as it stands does not set up an indictable offense.

Charge (b) concerns irregularities in the purchase of asphalt, trucks for highway use, and Kentucky rock, as appears in the appended petition. Again the charge does not specify the time or place where any of these alleged irregularities occurred. No specific criminal offense is charged. The District Attorney attempts to bring the transactions within the general conspiracy provision of Section 128 of the Act of March 31, 1860, P. L. 382. As the Administrative Code provides that all State purchases must be made through the Department of Property and Supplies, to make the conspiracy complete some individual connected with that department and who controlled these purchases should be implicated. No such official is named as being a party to these alleged transactions. No vendor is designated, nor information given of a single transaction in which anybody paid any money to the parties named. Moreover, such official purchases must be made according to plans and standard specifications, with the consent of the Commissioners of Public Grounds and Buildings; bids must be taken and contracts awarded to the lowest bidders, yet there is not a specific allegation here that there was a violation of any one of these requirements. Not a single irregularity is mentioned. The law requires contracts to go to the lowest and best bidder. It should appear how or what sort of influence was to be asserted to corruptly solicit the officer and cheat the Commonwealth. The charge itself fails to allege a conspiracy, and it lacks the elements of the crime. See Commonwealth v.Routley, 318 Pa. 465. However that may be, if there is a specific accusation leveled at some officer of the government and some vendor of these materials and supplies, and persons are named to whom money passed for the purpose of corrupt solicitation to cheat and defraud the government, the door is open to investigate the charges arising therefrom. If one such specific offense within the jurisdiction of the court is set forth, with the essential allegations of fraud and corruption, and this is alleged as part of a system of crime committed or in the process of commission, such a foothold obtained would warrant a general investigation into the conduct of this department of the government in its purchases. But there should and must be a specific charge or charges, with all the elements stated above, to ground a grand jury investigation as decided in McNair's Petition.

Charge (c), relating to the improper use of highway equipment by State employees, likewise fails to set forth the time when the acts were committed, and the place. No single specific offense is laid. If one specific crime had been set forth as being within the County of Dauphin, this charge could be there investigated. It is fatally defective.

Paragraph (d) charges improper and unlawful relations between the General State Authority and one of its contractors. This charge was not made directly by the former Attorney General, but evidently was taken from the newspapers or reported as hearsay by the former Attorney General. There was no investigation made as to its accuracy. There is no time or place fixed for the transactions in this charge and there is nothing to indicate that any of the supposed irregularties occurred in Dauphin County. The General State Authority operates throughout the State and there should have been a specific offense charged within the court's jurisdiction of some conspiracy by the contractor and the General State Authority to cheat and defraud the Commonwealth. Furthermore, before a grand jury could investigate this single crime it should be further averred, that it was part of a system of other criminal violations of the law to cheat and to defraud the State in Dauphin County, as relates to the contracts there being performed, and that the aid of the grand jury is necessary to expose these other related criminal acts. But, of a more important nature, here there is no allegation that the unlawful irregularities or relationships were criminal. Acts or work done under a contract may be contrary to the plans and specifications; it may be defective, irregular work, still such acts need not be criminal. The charge is fatally defective.

Charge (e) concerns the borrowing of money by the Governor. As it is presented there is no suggestion of criminal violation of the law, nor could there be under the circumstances related at argument. If the loan mentioned was made at the time there stated, the General State Authority did not then exist. The Act creating it had been declared unconstitutional. It is conceded that it is not unlawful for a public officer to borrow money from an individual, unless the loan when made definitely relates to and is proven to be connected with an unlawful solicitation to defraud the State. There is not the slightest allegation that anything like this occurred. We need not discuss the effect of the Hartranft case on this matter, as from the very language of the allegation it affords no grounds for investigation. The District Attorney does not allege that the Governor unlawfully influenced or directed the award of contracts as a result of these advances. He does not even charge that anything improper was done; he merely states that the Mayor of Philadelphia wishes to know if there was any impropriety. No investigation could lawfully be predicated on such hearsay suspicion.

The charges of macing, coercion and the unlawful collection of assessments from public employees contained in paragraph (f) are not set forth with sufficient clarity to warrant any action by the grand jury. Not a single allegation of fact concerning these charges is presented. It is not stated who was the subject of the macing or coercion, nor who instigated and conducted it. The charges leave completely unanswered the question of where, in the length and breadth of the State, these acts occurred, and yet the answer to this question is determinative of the jurisdiction of the Dauphin County court. The petition as to these charges is fatally defective because under the law as it now exists no crime is charged. The charges were drawn with reference to the Acts of June 13, 1883, P. L. 96, and July 15, 1897, P. L. 275. These Acts definitely relate to elections and to campaign contributions, and are specifically and absolutely repealed by the Act of June 3, 1937, P. L. 1333, Section 1901, at P. L. 1508 and 1513. These Acts were highly important as a means of preventing forcible contributions from State employees for election purposes by political parties. Laws which regulate matters pertaining to, or incidental to, the conduct of elections, are election laws. See In re Moskowitz, 26 Pa. D. C. 567. The title of the Act of 1937 is unquestionably broad enough to cover the repeal of these and any other Acts "relating to elections." Their repeal was deliberate and intended, and there is nothing in the new Election Code which provides a substitute for them, nor are there any offenses thereby created which approximate the charges in this petition. Despite the fact that this may be regarded as most unfortunate for the State, it is the effect of the Act of 1937.

Paragraph (g) is a similar charge to paragraph (f) and is similarly defective for failing to allege time, place, or a single specific instance of the offense, and in failing to name any persons who were subjected to the improper conduct. These charges are also vitally affected by the repeal of the Acts of 1883 and 1897. It was stated at argument that these payments were in the form of campaign contributions. It is not unlawful in persons dealing with the State to make campaign contributions, and there is no charge of corrupt solicitation or conspiracy to cheat and defraud the State.

The final charge, contained in paragraph (h), is merely the statement by a public official that an investigation of "Capitol Hill" would disclose facts which would over-shadow and belittle a previous "graft scandal." This certainly requires no elaborate examination to disclose its vagueness and insufficiency. The District Attorney attempts no defense of this charge.

The court is not concerned with the circumstance that these charges were made in the heat of a primary campaign, nor with the question of whether or not they were made in good faith. Its sole concern is with the legal sufficiency of the petition to warrant a grand jury investigation of the executive branch of the government, which, at its origin, would have no proper bounds or scope. The course of such investigations must be clearly marked within the proper limits of the jurisdiction of the court. The crimes to be investigated must have been committed in the county where the investigation is held. The grand jury of course may indict any public officer or other person for any crime he is charged with having committed. To ground the inquiry there must not be the mere charge of crime by an individual, but there must be, in the opinion of the District Attorney and the court, evidence on hand of actual crime sufficient to promise the assurance of one conviction for each of the particular offenses charged. There should be a sufficient number of instances of particular crimes within the system of crimes involved to warrant a general investigation, and the conditions should be such as to make it reasonably impossible to obtain evidence without the aid of the grand jury. Otherwise the Commonwealth would be exposed to the danger of the creation of a super-government by judicial inquisition.

Without more than appears in the petition of the District Attorney the call for an investigation by the grand jury in the present case was unwarranted in law. The return of the court below to the rule to show cause is therefore not sufficient to justify its action; the court not having certified that from definite knowledge gained from trustworthy sources it has received information of the character required to authorize the convening of the jury, a finding of criminal indictments as a result of this investigation would be open to grave attack. In conclusion, before the District Attorney or the court below again proceed to present or to order a grand jury investigation, we repeat there must be presented some credible evidence from a trustworthy source that a violation of the criminal law has taken place in each of the several charges contained in the District Attorney's petition. That credible evidence should be from some person who will testify that a criminal act or acts has been committed and that there are other similar acts which show a system of crime has been, or is, in the process of commission. The liberty and the reputations of our citizens should not be jeopardized by indiscreet and reckless charges.

The grand jury cannot be permitted to proceed under the present petition. Leave is granted to amend or supplement it within twenty (20) days in conformity with this opinion, and unless so amended the writ of prohibition will be directed to issue.

REPORTER'S NOTE. The District Attorney within the twenty days allotted by the Supreme Court filed an amended suggestion, the essential parts of which are found in the Reporter's Notes, infra. The Governor of the Commonwealth of Pennsylvania filed answer thereto, the material parts of which are likewise to be found in the Reporter's Notes.