Ex Parte Wolters

144 S.W. 531, 64 Tex. Crim. 238, 1911 Tex. Crim. App. LEXIS 610

• Court: Court of Criminal Appeals of Texas
• Decided: December 6, 1911
• Docket: No. 1439.
• Status: Published

Opinions

The applicant was adjudged guilty of contempt of the House of Representatives, at the recent called session of the Legislature, for refusing to answer questions propounded by a committee appointed by that body to inquire into sundry and divers things supposed to have occurred in connection with the prohibition election held on July 22, 1911. If this election had resulted favorably to prohibition, the proposed amendment would have supplanted the present system of local option and placed in effect statewide prohibition. The result, however, was antagonistic to prohibition, and the amendment was lost by a majority of about six thousand votes.

On June 20, 1911, His Excellency, Governor Colquitt, issued a proclamation calling a special session of the Thirty-Second Legislature to convene on Monday, July 31, 1911, in which proclamation he indicated the purposes to be:

1. To make appropriations for the support of the State government and for the public service for the fiscal years beginning September 1, 1911, and September 1, 1912.

2. To apportion the State into senatorial districts and into representative districts and to fix the basis of representation therefor.

3. To consider and act upon such other matters as may be presented by the Governor, pursuant to section 40 of article 3 of the Constitution of Texas.

The Legislature met, and in pursuance to said call, began its work on July 31, 1911. About August the first, realizing the fact that authority had not been mentioned in the proclamation of the Governor for the purposes for which concurrent resolution No. 1 was introduced in the Senate, seventeen members of the Senate, who were all favorable to statewide prohibition, presented said resolution to the Governor. The first section of that resolution related to the amendment of the election laws so as to further provide against illegal payment of poll taxes, and to enact such other laws as were deemed by the committee necessary to safeguard the ballot box, and to secure elections without taint of irregularity, fraud or other corrupt practices. The second section of the resolution related to the prohibition of brewery owners, stockholders therein, saloons, saloon owners, and all others connected directly or indirectly with the liquor traffic, from contributing to campaign funds to influence elections, and also prohibiting persons from receiving, using, or disbursing funds so contributed by those engaged in the liquor traffic. The remaining sections of the resolution referred to legislation in regard to the sale of liquor in some form or another. The Governor refused to respond to this request and declined to submit the matters therein mentioned for the action of the Legislature. Concurrent resolution No. 1 was abandoned by the Legislature. To meet this refusal of the Governor, each branch of the Legislature acted independently in the appointment of committees.

On the third of August a resolution, not concurrent, was introduced in the House of Representatives by friends of statewide prohibition, providing for the creation of a committee to investigate supposed irregularities occurring at the election held on July 22, 1911. This committee, by the terms of the resolution, was empowered to investigate whether or not there had been poll taxes illegally secured, or receipts or exemption certificate, etc., issued, and if paid for or issued, by whom paid for and by whom issued, and to whom issued, and who furnished the money for such purposes. It was also empowered to inquire into all violations and evasions of the election laws of the State, and the manner and method of such evasions, and by whom made or instigated. These matters all related to the election held on July 22 in regard to the prohibition amendment. There were other matters mentioned in the resolution to be submitted to said committee unnecessary to enumerate.

The committee was promptly created and given all the power possible to be conferred by the House of Representatives to carry out the purposes of the resolution. This included the issuance of process, its execution and enforcement, and providing for the expenses incurred by the members of the committee. It may be also mentioned as a matter of some materiality that the friends of the amendment recently defeated met at Fort Worth and passed a number of resolutions condemnatory of those who opposed the prohibition amendment, in which many derelictions were charged, intimating corrupt practices, and calling upon the Legislature to cause an investigation to be made in regard to these charges. This occurred two days before the Legislature was to meet at Austin. The convention at Fort Worth adjourned to meet at Austin simultaneously with the convening of the Legislature. On the day the Legislature did convene at Austin, those gentlemen, or a large part of them, met in the city of Austin and held a meeting. Quite a number of the members of the Legislature attended that meeting, that body having adjourned for that purpose, at which meeting practically the same resolutions were endorsed that had been endorsed at the Fort Worth meeting. It is also stated that it was understood or agreed in that meeting that the Legislature should carry out the will and wishes expressed at said meeting. The above is shown by the record in this case. The creation of the committee and its work occurred after the Governor had declined to submit the matters requested in the concurrent resolution No. 1. The consideration "of the advisability of submitting additional questions for the consideration of the Legislature" was but a courteous refusal to comply with request contained in concurrent resolution No. 1 on the part of the Governor. The Legislature so understood and acted.

The committee after its appointment met and began work. Among other witnesses summoned before it was this applicant, who was chairman of the anti-state-wide executive committee, and, as its head, managed the campaign against state-wide prohibition. Many questions were asked of and answered by him. Other questions were asked, which he declined to answer. These cover several pages of the committee's report. It is deemed unnecessary here to set out all these matters. They can be summarized with this statement: He declined to answer questions seeking to elicit information as to who contributed to the campaign fund of the anti-state-wide side of the issue, and the amount received, from whom received, as well as to whom he paid out the money contributed. Names were suggested in the questions to him, but to all these he firmly declined to give an answer. We may sum up, in a general way, that he did state the money received by him or paid to him for such purpose was not used in violation of any of the laws of the State, or so as to infringe any idea of good morals, or in any illegitimate manner. There are many matters of evidence brought out in the record which brought in review the conduct of the political campaign and incidents thereto pertaining. These are not mentioned, because not thought to be necessary to a decision of this case.

Several questions are presented for discussion. It is not the purpose of this opinion to review all these questions. The first one to be discussed is, did the House of Representatives have authority to appoint the committee it did appoint? Second, if so, did that committee have authority to demand of applicant answers to the questions propounded to him, and were the questions and answers material to the matter under investigation? Both propositions should be answered in the negative. Be it remembered that this was a special and not a regular or biennial session of the Legislature. The scope of the authority of a special session of the Legislature is to be found in section 40 of article 3 of the Constitution, which reads as follows: "When the Legislature shall be convened in a special session, there shall be no legislation upon subjects other than those designated in the proclamation of the Governor calling such session, or presented to them by the Governor, and no such session shall be of longer duration than thirty days."

From this it will be observed that when the Legislature is convened in special session such express limitation is placed upon the power of that body that it can not legislate upon any subject or subjects except those specially designated in the proclamation of the Governor calling the body together, or such as may be subsequently presented to that body by the Governor. This limited rule set out in the above section does not apply to the Legislature when sitting in its biennial session. It will, therefore, be observed there is a marked difference between the power of the Legislature in regular session as compared with its power when sitting in a special session. The Legislature by the terms of article 2, section 1, of the Constitution, is made the law-making power of the State. This provision of the Constitution limits that body to legislation, unless there be found some other provision in that instrument authorizing it to exercise other powers and functions such as, among other things, to present articles of impeachment against named officials, or expel members for sufficient cause. It also has power under article 3, section 15, to punish by imprisonment during its session 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.

The question then here is, what may the Legislature do at a special called session in regard to legislation, and for what purpose by concurrent resolution, or a resolution of either House, and for what purpose may either or both Houses appoint committees, and what subjects may be investigated by said committee? To the mind of the writer, these are answered definitely by article 3, section 40. By the express terms of that section, the Legislature is expressly restricted and limited, first, to the passage only of such laws as the Governor has authorized in his proclamation, or in subsequent messages submitted by him; and, second, either or both Houses may have authority to make investigations looking to the enactment of such laws as are within the proclamation or message of the Governor, but the Legislature may not and can not investigate matters for legislative purposes not within the proclamation. Nor would the Legislature have authority to investigate matters the Governor declined to submit to it, and this proposition is intensified when the demand or request has been made upon him and he declines to accede. This, the writer understands, would be the limit of authority on the part of the Legislature to either legislate or investigate matters looking to legislation. This, as before stated, is more than intensified when the fact is taken into consideration that the Governor refused to refer or submit these matters for legislation. It is thought to be a correct statement that the Legislature either in general or special session would have no authority either as a body or through committees to investigate matters for legislation about which that body could not enact laws, and when they were without authority to so enact. It might be concluded as a correct proposition, so far as this case is concerned, that whenever the Legislature has authority to enact laws, it would have corresponding authority to make necessary investigations for the ascertainment of such facts as would be necessary as a predicate for the enactment of laws wherein the matter was then pending and formed a part of the proceedings of that body. These rules apply as well to special as to general sessions, but there must be authority in either event as a predicate for legislative action upon the subject or subjects under investigation, otherwise is could not be considered a part of the proceedings of the Legislature. If the above propositions are correct, then the special session had no authority to appoint the committee to investigate, and the committee so appointed was powerless to investigate matters about which that body could not possibly legislate or take action. It is true, the Legislature is one of the three coordinate branches of the government, and in a general way has power in matters of legislation, but there is to be noted a marked difference and distinction between the scope of power of the regular session and that of a special session of the Legislature. When that body meets in its biennial session, its authority to enact laws and make investigations is as broad as is the constitutional guaranty of power, to wit: as the law-making department of the government. The limitation of such power is to be found in the terms of the Constitution as expressed or necessarily implied. It is not the purpose here to go into any discussion as to the limitations of express or implied power, but the rule is entirely different when the Legislature meets in special session. In the latter case they have no authority to legislate except as set forth by the Governor in his proclamation, or in subsequent messages sent by him to that body. These propositions being correct, the Legislature was without authority to create the committee before whom applicant was called upon to testify, and the committee was without authority to propound questions or to demand answers from this applicant. The House of Representatives, recognizing they had no such authority, called upon the Governor to submit such matters to them as would justify them in exercising such authority. This he declined. It must be evident then from this action of the Legislature, and the subsequent refusal of the Governor to respond to their wishes, that they had no authority to create the committee and make the investigation, and fully recognized that fact. The committee, under this view, was a body without authority to call witnesses, or to put questions and require answers from them. Their action did not form a part of the proceedings of that body and no obstruction could occur.

It may be stated as a proposition incontrovertibly true, that the Legislature derives its power from the Constitution, and is dependant solely on the Constitution for its existence and authority. Both Houses of such body are but the creatures of the Constitution, and outside of the provisions of that instrument, would and could have no authorized existence. Both Houses act under delegated authority which, in a general way, is confined to legislative matters, except in a few instances where is it otherwise provided, and in no instance could it act as a judicial body unless power is expressly conferred upon it by the Constitution for that purpose. Judicial power is conferred upon another branch of the government to be exercised by it to the exclusion of other branches of the government. It would follow then that the Legislature, in matters within its jurisdiction, would have authority to protect itself against disrespectful and disorderly conduct in its presence as well as for obstructing its proceedings. Some of the books speak of this as inherent power. Had the Constitution remained silent upon the question of the power of the Legislature to punish for contempt, we might be called upon to enter the domain of such inherent power and discuss it, but we are relieved from that by the terms of the Constitution wherein it specifies how and when each branch of the Legislature may punish for contempt for such conduct. If 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. It is, therefore, unnecessary to discuss the question of inherent power further than is stated in that section. Such authority then can not be exercised in any instance by the Legislature unless the contempt or punishment was for a violation of something the Legislature had authority to do. There are some fundamental rules that have long since been decided, and have become so thoroughly settled in regard to matters of this sort, that they ought to be held conclusive. First, before a contempt punishment can be inflicted, the body seeking to impose the punishment must have jurisdiction of the subject matter; second, it must have jurisdiction of the person; third, it must have authority to render the particular judgment that is rendered. The correctness of the above rules is not an open question in Texas, and ought not to be debatable anywhere. One of the best considered cases involving these questions is found in an opinion by the then presiding judge of this court in Ex parte Degener, 30 Texas Crim. App., 566. The question here involves the jurisdiction of the authority seeking to inflict punishment. It has been said that jurisdiction is of two kinds, first, the power to determine the particular matter and render some judgment upon the hearing, and, secondly, the power to render the particular judgment which was rendered. There was some conflict in the authorities for awhile upon some of these matters, but this all seems to have faded. Many of the cases cited in support of the above proposition will be found collated in Ex parte Degener, supra. That case has been followed in quite a number of opinions by this court, a few of which will be enumerated: Ex parte Taylor, 34 Tex.Crim. Rep.; Ex parte Kearby, 35 Tex.Crim. Rep.; Ex parte Wilson,39 Tex. Crim. 630; Ex parte Duncan, 42 Tex.Crim. Rep.; Ex parte Snodgrass, 43 Tex.Crim. Rep.; Ex parte Lake,37 Tex. Crim. 656. In Ex parte Duncan, supra, it was held there must be contempt in order to justify punishment for the offense, and the facts must justify the judgment imposing such punishment. "There are three essential elements necessary to render a conviction valid. These are, that the court must have jurisdiction over the subject matter, the person of the defendant, and the authority to render the particular judgment. If either of these elements is lacking, the judgment is fatally defective, and the prisoner held under such judgment may be released on habeas corpus." In addition to the authorities cited, supra, on these propositions, there will be found cited in the report of the Duncan case, the following cases: Ex parte Tinsley, 37 Tex.Crim. Rep.; Ex parte Kearby and Hawkins, 35 Tex.Crim. Rep.; Brown on Jurisdiction, sections 109 and 110; Ex parte Lake, 37 Tex. Crim. 656.

It was further held that "Jurisdiction of the person and subject matter are not alone conclusive, but the authority of the court to render the particular judgment is the subject of inquiry; and if, upon a review of the whole record, it appears that a judgment unwarranted by law was entered, the party thus placed in contempt will be released under the writ of habeas corpus. Same authorities."

Following the above quotation are a great number of cases cited in the opinion in the Duncan case, supra. It has also been held that the judgment is not conclusive upon the question of the authority of the court, or the body imposing the contempt, but where the facts justify it, the court will go behind the judgment and inquire into the facts, and if the facts are such that ought not to justify or permit the particular judgment rendered, then the applicant will be discharged upon writ of habeas corpus. This was expressly decided in Parker v. State, 35 Tex. Crim. 12; Ex parte Juneman, 28 Texas Crim. App., 486. This doctrine was reasserted in Ex parte Duncan, supra.

The leading case in the United States on the question involved in this case is Kilbourn v. Thompson, 103 U.S. 168. That case has been followed in quite a number of cases, and, in our judgment, clearly settles the law in this case in favor of the applicant. It is not the purpose of this opinion to review the Kilbourn case, but it is referred to approvingly as setting forth correct principles of law applicable to the questions here involved. See 7 Am. Eng. Ency. of Law, 62-65, and notes for cases.

It would follow from what has been said that the Legislature not having power to legislate upon matters about which the investigation was had at the called session, that the action of the House creating the committee was without authority, and this being true, the committee would not have power to make the investigation, call witnesses before it, ask questions or demand answers. If the House was not authorized to legislate upon any of the matters about which the investigation was made, it would necessarily follow that that body could not impose punishment for contempt upon the refusal of the witnesses to appear before the committee, or appearing, refuse to give testimony sought to be elicited. It would be clearly beyond the jurisdiction of the committee and of the Legislature, and, therefore, the rules above set forth would apply, that is, that body would have neither the jurisdiction of the subject matter, of the person, nor the authority to render any judgment, much less the judgment it did render. From this viewpoint of this record, the applicant is entitled to his discharge.

In regard to the second original proposition, it may be said, conceding the Legislature had authority to appoint the committee, and the committee had jurisdiction of the subject matter by virtue of its appointment by the legislative body, and had jurisdiction of the person of applicant by having him before the committee, still there would be authority wanting under this record justifying them in imposing the punishment for contempt. The matters inquired about were such matters as did not require applicant to answer and could form no basis of a judgment. They suggested no violation of any law of this State, and if it did, the Legislature was not authorized to investigate violations of law; that belonged to the judicial department; nor could applicant be required to criminate himself. They were matters not necessary in any way to aid the legislative body in reaching a conclusion on any matter submitted to it by the Governor. That body could not revise the election laws, and could not legally engage in any proceedings tending to such revision, because the Governor had refused to submit such matters to them. It was then nothing before the Legislature to which the answers of the witnesses, whatever those answers might have been, could possibly have been germane. The only purpose for which that Legislature was called was to legislate on specified subjects. It was not authorized to collect data for future legislation, nor with a view of legislating upon any matter not submitted to them, and if it attempted to do so such attempt can not be termed legal proceedings of the House. Being a called session, its power was limited to the thirty days mentioned in the Constitution, and exclusively to the questions mentioned by the Governor in his proclamation calling them together, and in such communications as he might subsequently make. These constituted the only proceedings to be indulged by the Legislature. It would hardly be contended seriously that this Legislature could sit longer than thirty days for any purpose. The Constitution had put a limit to its existence at the expiration of the thirty days. This clause, section 40, article 3, in regard to thirty days limit, is no more binding than other clauses of the same section. It will be observed then that the rule governing the power of a special session is the reverse from the rule that controls the general session with reference to legislative authority. One is general, the other is specifically restrictive and restricted.

There is some intimation that the Governor, after the committee had been organized, sent a communication asking an increase in the appropriation bill from what it had theretofore been under previous appropriations, looking to the enforcement of the law. That message was to the effect that he desired an increased appropriation from what had theretofore been given. By no stretch of reasoning could this matter justify the action of the committee here under discussion. Theretofore the Legislature had been appropriating less than the amount of money requested by the Governor. This request from the Governor was for an increased appropriation to the amount of $27,500. Without placing it upon the ground directly or indirectly that the message was subsequently sent in by the Governor, that, therefore, the committee could not extend its jurisdiction to that matter, because of its original illegality, it is too clear for discussion that this did not justify the committee in its course of investigation of the July election. It was but an item of appropriation which was asked by the Governor to be enlarged from what it had theretofore been, and for the purposes of prosecuting before the courts those who were violators of the law. We hardly think it would be contended either seriously or otherwise that that matter would justify the committee in their action. I have written beyond what I had intended, and perhaps more than is necessary.

For the reasons indicated, we are of opinion that the applicant is illegally restrained of his liberty. It is therefore ordered that he be discharged from custody. There are other questions presented, but the above matters discussed dispose of the case.

Relator discharged.

Prendergast, Judge, dissents.