MORROW, Presiding Judge.
On an original application for writ of habeas corpus in the District Court release was denied.
During a special session of the Legislature of this State, sitting at Austin, relator, in the City of San Antonio, made a speech in which he gave utterance of general charges of corruption against members of the Legislature in passing legislation. No particulars are given.
Taking note o‘f the published report of the matter, the Legislature, by a concurrent resolution, authorized the appointment of a committee composed of three members of the Senate and five members of the House to investigate the charges alleged to have been made and report the result of the investigation to the Legislature. The committee was appointed and organized. Relator appeared before it in obedience to process but refused to be sworn and testify as a witness in the investigation. Then, as stated in the resolution,
“*##said Committee, by motion duly made and seconded, and unanimously adopted, did then and there adjudge the said Hull Youngblood guilty of contempt of said committee in refusing to take the oath as a witness, or to be sworn as a witness, to testify in the matter then under investigation by said Committee. ’ ’
Relator was by the Committee condemned to suffer imprisonment in the county jail for a period of twenty days or until the expiration of the session of the Legislature, unless, in the meantime, he should purge himself of the contempt by taking oath and giving-testimony.
To support the judgment, respondent relies on Article 5517 of the Revised Civil Statutes found in the Acts of 1907, page 6. In that statute it is declared in substance that in the investigation of any public officer elected by the Legislature, or nominee for public office in respect to matters or charges that reflect upon the personal or. official integrity of such public officer, or any investigation of any other matter, or for any other purpose that may be ordered by the Legislature of this State,
“***sUch investigating committee and each member thereof, shall have full power and authority to administer oaths to officers, clerks and stenographers that it may .employ in connection with the performance of its duties, and to any witnesses and parties called to testify before it; and said investigating committee shall have full power and authority to issue any and all process that may be necessary to compel the attendance of witnesses and the production of any books, papers and other written documents it may designate, and to compel any witness to testify in respect to any matter or charge by it being investigated, in answer to all pertinent questions propounded by it, or under its direction, and to fine or imprison any witness for his failure or refusal to obey the process served on him by such committee, or to answer any such pertinent questions propounded; provided, that such fine shall not exceed one hundred dollars, nor shall imprisonment extend beyond the date of the adjournment of the legislature then in session; and provided, further, that the testimony given by a witness before such investigating committee shall not be used against him in any criminal action or proceeding, nor shall any criminal action or proceeding be brought against such witness on account of any testimony so given by him, except for perjury committed before such committee.”
As authority for his detention this statute is assailed by the relator. He points to Section 15, Article 3 of the Constitution, reading thus:
“Each House may punish, by imprisonment, during its sessions, 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 one time, exceed forty-eight hours.”
Twice this provision has been considered by the appellate courts, but in neither case was the imprisonment fixed beyond forty-eight hours. See Canfield v. Gresham, 82 Texas Reports 10; Ex parte Wolters, 64 Texas Crim. Rep. 239; and Ex parte Gray, 64 Texas Crim. Rep. 342. In the case before the Supreme Court, the power to punish for contempt under the
constitutional
provision mentioned was affirmed. The question before the court in the Wolters’ and Gray cases, supra, was the .validity of a judgment of contempt entered by the House of Representatives for the refusal to answer questions propounded by a committee appointed by that body to make inquiry touching alleged irregularities in an election to determine whether an amendment to the Constitution should be adopted. The conclusion reached by a majority of the court was against the validity of the judgment. There was a dissenting opinion and separate opinions by each member of the court. One member held that the investigation, not covering the subject embraced within the Governor’s call of the special session, was, under Sec. 40 Art. 3. of the Constitution, beyond the jurisdiction of the Legislature. With the merits of the controversy over that subject as reflected in the Wolters and Gray cases,
we have no present concern. It is enough to say that the article of the Constitution which authorizes each House to punish its members, .is warrant for an inquiry concerning alleged corrupt practices of such members affecting^ legislation. See Const., Art. 3, Sec. 11. In the course of the discussion, however, Presiding Judge Davidson used this ' language touching Art. 3, Sec. 15, supra:
" 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.”
In the ease of Ex parte Gray, supra, the majority opinion was written by Judge Harper. If we properly comprehend it, it is to the effect that the refusal of Gray to testify before the committee could not be made a subject of contempt for the reason that such refusal was not
“obstructing the proceedings of the House.”
Upon this subject, we copy from the opinion the following:
“The power to punish for contempt being a judicial power, requiring a judicial ascertainment of fact by a tribunal, and the adjudgment of punishment, the legislative department has no inherent power, as it is called, to exercise this judicial power, for this power is conferred upon the judicial department-by this provision of the Constitution, unless in the Constitution is found some provision which expressly permits the legislative department to exercise it.
Free access — add to your briefcase to read the full text and ask questions with AI
MORROW, Presiding Judge.
On an original application for writ of habeas corpus in the District Court release was denied.
During a special session of the Legislature of this State, sitting at Austin, relator, in the City of San Antonio, made a speech in which he gave utterance of general charges of corruption against members of the Legislature in passing legislation. No particulars are given.
Taking note o‘f the published report of the matter, the Legislature, by a concurrent resolution, authorized the appointment of a committee composed of three members of the Senate and five members of the House to investigate the charges alleged to have been made and report the result of the investigation to the Legislature. The committee was appointed and organized. Relator appeared before it in obedience to process but refused to be sworn and testify as a witness in the investigation. Then, as stated in the resolution,
“*##said Committee, by motion duly made and seconded, and unanimously adopted, did then and there adjudge the said Hull Youngblood guilty of contempt of said committee in refusing to take the oath as a witness, or to be sworn as a witness, to testify in the matter then under investigation by said Committee. ’ ’
Relator was by the Committee condemned to suffer imprisonment in the county jail for a period of twenty days or until the expiration of the session of the Legislature, unless, in the meantime, he should purge himself of the contempt by taking oath and giving-testimony.
To support the judgment, respondent relies on Article 5517 of the Revised Civil Statutes found in the Acts of 1907, page 6. In that statute it is declared in substance that in the investigation of any public officer elected by the Legislature, or nominee for public office in respect to matters or charges that reflect upon the personal or. official integrity of such public officer, or any investigation of any other matter, or for any other purpose that may be ordered by the Legislature of this State,
“***sUch investigating committee and each member thereof, shall have full power and authority to administer oaths to officers, clerks and stenographers that it may .employ in connection with the performance of its duties, and to any witnesses and parties called to testify before it; and said investigating committee shall have full power and authority to issue any and all process that may be necessary to compel the attendance of witnesses and the production of any books, papers and other written documents it may designate, and to compel any witness to testify in respect to any matter or charge by it being investigated, in answer to all pertinent questions propounded by it, or under its direction, and to fine or imprison any witness for his failure or refusal to obey the process served on him by such committee, or to answer any such pertinent questions propounded; provided, that such fine shall not exceed one hundred dollars, nor shall imprisonment extend beyond the date of the adjournment of the legislature then in session; and provided, further, that the testimony given by a witness before such investigating committee shall not be used against him in any criminal action or proceeding, nor shall any criminal action or proceeding be brought against such witness on account of any testimony so given by him, except for perjury committed before such committee.”
As authority for his detention this statute is assailed by the relator. He points to Section 15, Article 3 of the Constitution, reading thus:
“Each House may punish, by imprisonment, during its sessions, 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 one time, exceed forty-eight hours.”
Twice this provision has been considered by the appellate courts, but in neither case was the imprisonment fixed beyond forty-eight hours. See Canfield v. Gresham, 82 Texas Reports 10; Ex parte Wolters, 64 Texas Crim. Rep. 239; and Ex parte Gray, 64 Texas Crim. Rep. 342. In the case before the Supreme Court, the power to punish for contempt under the
constitutional
provision mentioned was affirmed. The question before the court in the Wolters’ and Gray cases, supra, was the .validity of a judgment of contempt entered by the House of Representatives for the refusal to answer questions propounded by a committee appointed by that body to make inquiry touching alleged irregularities in an election to determine whether an amendment to the Constitution should be adopted. The conclusion reached by a majority of the court was against the validity of the judgment. There was a dissenting opinion and separate opinions by each member of the court. One member held that the investigation, not covering the subject embraced within the Governor’s call of the special session, was, under Sec. 40 Art. 3. of the Constitution, beyond the jurisdiction of the Legislature. With the merits of the controversy over that subject as reflected in the Wolters and Gray cases,
we have no present concern. It is enough to say that the article of the Constitution which authorizes each House to punish its members, .is warrant for an inquiry concerning alleged corrupt practices of such members affecting^ legislation. See Const., Art. 3, Sec. 11. In the course of the discussion, however, Presiding Judge Davidson used this ' language touching Art. 3, Sec. 15, supra:
" 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.”
In the ease of Ex parte Gray, supra, the majority opinion was written by Judge Harper. If we properly comprehend it, it is to the effect that the refusal of Gray to testify before the committee could not be made a subject of contempt for the reason that such refusal was not
“obstructing the proceedings of the House.”
Upon this subject, we copy from the opinion the following:
“The power to punish for contempt being a judicial power, requiring a judicial ascertainment of fact by a tribunal, and the adjudgment of punishment, the legislative department has no inherent power, as it is called, to exercise this judicial power, for this power is conferred upon the judicial department-by this provision of the Constitution, unless in the Constitution is found some provision which expressly permits the legislative department to exercise it. In exercising judicial powers the legislative department must look to the Constitution for permission so to do, and if it is not found therein, it is prohibited from exercising that power, for in that instrument it is declared that ‘no person, or collection of persons, being of one of these departments, shall exercise any power properly attached to either of the others, except in the instances herein permitted.’
“So we must look alone to section 15 of article 3, to judge if permission is given the legislative department of the government to exercise this judicial power in cases of this character. That this permission is given the legislative department under this section of article 3 of the Constitution, during its sessions, to punish as for eontémpt for disrespectful or disorderly conduct in its presence, or for obstructing its proceedings, is plain, and the only question to be determined is, what is meant by the words ‘ obstructing its proceedings?’ as used in our Constitution.”
The conclusion reached was that the offensive conduct in question
was not “obstructing the proceedings.” Judge Prendergast, the dissenting" member of the court, was of the opinion that the term “proceedings of the House” incorporated in the Constitution did embrace the inquiry which the committee before whom Gray and Wolters appeared, was conducting, This conflict of judgment as to the interpretation of the language “obstructing the proceedings of the House” is not important in the instant case. That the present inquiry does relate to the “proceedings .of the House” within the provisions of the • Constitution seems obvious. The power of the Legislature or of either House to appoint a committee and delegate to it the power to make any proper investigation with reference to a charge that in their official conduct its members were corrupt is beyond question. Notwithstanding the contrariety of views of the members of the court concerning some phases of the Wolters and Gray cases, they were unanimous in their opinions that the Legislature’s power to punish for contempt comes from an express provision of the Constitution. This is true although the statute here relied on (Art. 5517) was passed five years antecedent to the date of the Wolters and Gray decisions. What inherent power with' reference to contempt the Legislature would have had if the Constitution had been silent upon the subject is beside the question for the reason that in exercising the judicial attribute of .punishment for contempt, our Legislature looks to the power granted in Art. 3 of Sec. 15 of the Constitution. The fact referred to by respondent that in statutes creating administrative bodies with judicial power or courts, the power of the Legislature to authorize punishment for contempt does not imply that it may by statute extend its own power or that of its members beyond the limits of the clause of the Constitution which confers and defines the power.
“It is a general rule that when a constitution confers a power, or enjoins a duty, it also confers by implication any incidental power necessary for the exercise of the one or the performance of the other. ’ ’
“The general rule stated above is modified by another — that where the means for the exercise of a granted power are also given, no other or different means or powers can be implied, either on account of convenience or of being more effectual. And where the manner of exercising a given power is prescribed, the method thus designated is exclusive.” (Amer. & Eng. Ency. of Law, 2nd Ed., Vol. 6, p. 928.)
The same rule has been affirmed by text-writers and applied by judges on many occasions. See Cooley’s Const. Limitations, 4th Ed., pages 78 and 94; Cyc. of Law & Proc., Vol. 8, p. 742; Cooley’s Const. Limitations, 7th Ed., pages 191 and 246; Holley v. State, 14 Texas Crim. App. 517; Parks v. West, 102 Texas Reports 11; Morris v. Powel, 125 Ind., 281; Page v. Allen, 98 Amer. Dec., 272. Many other eases might also be cited. In the Wolters and Gray cases the
statutes mentioned was ignored and it was held that the clause of the Constitution quoted was the authority for punishment by the Legislature for contempt. The
constitutional
provision confers upon
each House the power to punish for contempt.
The
statute
upon which the present judgment rests
confers
upon a
committee
this power. This, it is claimed by the relator, offends against the general principle concerning the delegation of power. To the committee authorized by Article 5517 of the Revised Statutes is delegated the power to determine the propriety and pertinency of the questions propounded and to determine that the refusal to answer them is- unauthorized and wilful and to fix the punishment. The statute makes no restriction as to the number of members of any particular committee. It may be composed of a large or small number of members of the House and Senate, and have the power to enter a judgment of contempt conferred by statute upon the House or upon the Senate as the case may be. Touching the validity of the statute, the decisions of other states are not adequate as a guide, in that they deal with different facts and are under constitutions variant from ours. In so far as they do furnish precedents, generally speaking, they declare that where a committee of investigation finds a witness unwilling to testify, the question of conviction and punishment should be referred to the body appointing the - committee. This apparently is the procedure contemplated by Art. 3, See. 15 of the Constitution and is the procedure followed by the House in the proceedings against Wolters and Gray. The exercise of the judicial power involved in a judgment for contempt is permitted by the Constitution by either branch "of the body, but when this power is conferred upon an individual or collection of the members of the House, or either or both of them, the right to exercise the power delegated
to the whole of the body
is conferred by that body upon
a few
and
that few are within the terms of the inhibition contained in Sec. 1, of Art. 2, of the Constitution, which forbids the exercise of judicial power of a member or members of the Legislature.
The power- granted it by the Constitution is not so restrictive of the right of the Legislature to punish for contempt as to thwart it in the conduct of its proper proceedings. The term 1 ‘ obstructing is proceedings” .contained in the Constitution is deemed broad enough to embrace not only the things that were done in the presence of the Legislature but those done in disobedience of a committee which impeded or obstructed the proper discharge of the functions of the committee. The statute (Art. 5517) having given relator against self-incrimination, immunity, each branch of the Legislature had the power to punish him for contempt in refusing to be sworn and answers proper questions. The right to punish him, however, would be limited by the Constitution in the extent and in the manner of its exercise and could not be exerted by a committee.
Because the judgment assesses a punishment greater than that
named in the Constitution, and because the judgment of contempt was rendered by the members of a committee and not by the House or Senate, in which bodies the power to punish is vested, the judgment of the District Court should be reversed and the relator discharged, and it is so ordered.
Relator discharged.
May 7, 1923.