In re Davis

49 P. 160, 58 Kan. 368, 1897 Kan. LEXIS 112

• Court: Supreme Court of Kansas
• Decided: June 5, 1897
• Docket: No. 10853
• Status: Published

Opinions

Allen, J.

l'mlttfetodVoTel.jmn-nmentof Legislature. Two principal questions are presented for determination. The first is, whether the committee appointed under Senate concurrent resolution No. 26 has authority to act after the adjournment of the Legislature ; the second is, whether it has power to imprison a witness for refusal to testify. The general rule undoubtedly is that the powers of committees of legislative bodies cease on the final adjournment of the body, unless express provision is made for their continuance ; but that the houses of the Legislature have power to confer authority on a committee to continue its labors after adjournment, is not questioned. The 0 1 x concurrent resolution under which the committee claims the right to act contains no direction on the subject; and if the question were to be determined solely on the resolution itself, it would follow that the committee is without power to proceed. But paragraph 95 of the act making appropriations for miscellaneous purposes, reads at follows :

“ There is hereby appropriated, three thousand dollars to pay expenses of committee officers, clerks, stenographers, witnesses and other necessary expenses incurred in an investigation for bribery as recited in Senate resolution No. 26, or so much thereof as may be necessary : Provided, That said sum shall not be available if criminal prosecution shall be instituted in the District Court of Shawnee County on or before May 15, 1897 ; and provided further, That said investigation shall terminate when said sum of three thousand dollars shall be expended under penalty of forfeiture to the State treasury of the whole sum herein appropriated, and no part of this sum shall be available until the investigation shall be terminated and the aggregate expense submitted to the Auditor of State under oath of the committee of investigation ; no mileage shall be paid in excess of five cents per mile, and the Auditor of State is hereby authorized to draw his warrants upon the Treasurer of State upon properly authenticated and detailed vouchers for the purposes above named in accordance with the conditions hereinbefore stated and when approved by the chairman of said committee.”

This act was approved March 15, and appears as chapter 11 of the Laws of 1897. The clause quoted lacks much of ‘being clear or explicit, but it seems to contemplate a session of the committee after the fifteenth of May, rather than before, and evidences intent on the part of the two houses that the committee should sit after final adjournment.

nopoTvSto^mprison witness. The right of the committee to proceed with the investigation being upheld, the second question, namely, as to the power of the committee to punish a witness as for a contempt in refusing to answer, remains tobe decided. It is not contended on behalf of the respondent that the committee is a court, nor that it would be competent for the Legislature to confer on any other officials that kind . , of judicial power which the Constitution says shall be conferred on courts. But the contention is that some judicial power resides in the Legislature, and that some judicial power, other than that properly appertaining to courts, may be conferred wherever the Legislature in its wisdom sees fit. It is not asserted that the Constitution does not make a valid and effectual division of the powers of government into executive, legislative and judicial departments, nor is the wisdom of such a division of powers questioned ; nor has there been any suggestion in the brief or on oral argument that such a division is unreasonable or illogical. It has been generally, if not universally, accepted as the best and safest division of powers yet devised by man, and is recognized as firmly established by all writers on the Constitution. Story on the Constitution, vol. 1. chapter 7; Cooley's Constitutional Limitations (6th ed.), 46. The essential features of the arrangement are comprehended and approved by all classes of citizens. The Legislature enacts general rules for the guidance of all departments of the government. It levies taxes and directs the expenditures of the money raised thereby, but it executes no law. The judiciary declares the law, and directs as to its application to controversies that arise. It expounds and makes plain that \yhich is obscure and ambiguous so far as it is able to do so. The fundamental law embodied in the Constitution binds all departments of the government and fixes the limits of their powers. To its mandates all must yield obedience ; for it is superior to any and all agencies created under it. It is the warrant of authority from the people to all .those placed in official position and exercising the powers it delegates ; and when called on to declare what the law is in a case pending, it would seem to need no argument in support of the proposition that the Constitution has force and authority superior to any legislative enactment; for the Legislature itself must look to the Constitution for its authority to act. Wherever there is a clear attempt on the part of the Legislature to transcend the powers entrusted to it by the Constitution, the courts must, of necessity, determine and declare that the fundamental law must be obeyed rather than the unwarranted act of the Legislature. This is well settled. The executive department of the government is the active force that gives effect to the laws enacted by the Legislature and to the decisions of the courts. It, like the other departments, must obey first of all the fundamental -law. It alone is authorized to employ force, and, when duly authorized so to do, to seize the person or the property of the citizen. It is against the abuse of executive power that the citizen most needs protection, and it is here that the courts become most valuable, and stand as guardians of the people’s rights, requiring every official who deprives a citizen of his liberty to show his authority under the law for so doing. The power of the courts is not exercised by the judicial officers in person, but must always require the aid of an executive officer. Its efficient exercise rests solely on the authority and binding force given to the decisions of the courts by the Constitution, and the general concensus of public opinion.

The petitioner is restrained of his liberty. He asks that he may be discharged from that restraint. He is entitled to that discharge unless the respondent can show lawful authority for his restraint. Bill of Rights, §§ 1, 18. It will not be contended for a moment that the Legislature has general power to imprison citizens, or that any one may impose a sentence of imprisonment except in accordance with, due process of law. Due process of law, ordinarily if not universally, means a trial and conviction in a court of justice in accordance with established forms. Executive officers may not seize and imprison a citizen except in the prescribed manner, and in connection with the due administration of justice in the courts. The only exceptions to this rule arise from the exercise by the houses of the Legislature of certain limited functions, judicial in their nature and expressly confided to them by the Constitution, and a single implied power to protect themselves, in the discharge of their ■ legislative functions, by punishment as for a contempt. It is not claimed, however, that the petitioner has ever been brought before the bar of either the Senate or the House of Representatives and declared guilty of a contempt of the body; but the warrant of commitment is signed by four of the five members of the legislative committee appointed under the concurrent resolution above copied. The commitment is, therefore, not for a contempt of a legislative body, declared to be so by the body itself, but for a contempt of a legislative committee, declared to be so by that committee. Is this an attempted exercise of judicial power, or of legislative power ? Counsel for respondent concede that it is judicial power, but insist that it is not that kind of judicial power mentioned in section 1 of article 3 of the Constitution, which reads :

“The judicial power of this State shall be vested in a Supreme Court, district courts, probate courts, justices of the peace, and such other courts, inferior to the Supreme Court, as may be provided by law; and all courts of record shall have a seal to be used in the authentication of all process.”

It is not claimed, and could not with reason be urged, that the committee which issued this warrant is a court; for, under the provision of the Constitution just quoted, courts must be created by law. This committee was created, not by a law, passed by both houses of the Legislature in accordance with the forms prescribed in the Constitution and submitted to the Governor for his signature, but by a mere concurrent resolution, containing no enacting clause, not read on separate days, as a law must be, not entitled, as the Constitution requires a law to be, and never presented to the Governor for his approval. The act relied on as conferring authority on the committee to punish as for a contempt, is chapter 132 of the Laws of 1891; section 1 of which reads as follows :

“Any committee appointed by the Senate and House of Representatives of this State to investigate the conduct of any officer, board, committee, or department of State, or any other matter, shall have the power to issue subpoenas in the name of the State, to compel the attendance of witnesses from any part of this State, the production of any book or papers, and generally shall have the same power with reference to procuring testimony bearing upon the subject-matter under investigation as the district court would have in any case on trial in such court.”

This act does not purport to create tribunals of any kind, but to confer powers on all committees thereafter appointed ; and by the fourth section it is made to apply to a committee appointed by the House of Representatives at the session of the Legislature at which the act was passed. The case of People v. Learned (5 Hun [N. Y.] , 626), much relied on by counsel for respondent, is very different in its facts. There, the Governor, with the advice and consent of the Senate, had, under a joint resolution, appointed commissioners to investigate the affairs of the canals of the State. After the appointment of the commissioners, none of whom were members of the Legislature, an act of the Legislature was passed in due form, which appears as chapter 91 of the Session Laws of 1875, in express terms conferring on that identical commission, then in existence, the power to issue subpoenas, and, in case of the failure of a witness to obey a subpoena, to issue an attachment to the sheriff requiring him to attach the body of the witness and bring him before the commission; and providing for like proceeding thereupon as if such commission were a court of record and such witness had been duly subpoenaed to attend before it. Although the commission in that case was appointed by the Governor under a concurrent resolution, which the court held was customary in that State, its powers were conferred by a special law, regularly enacted in the constitutional manner. In this case, there is merely a committee of the Legislature, and there could be no direct reference in the law to this particular committee, for it was not called into existence until six years after the passage of the act under which the power to commit is claimed. The powers exercised by the New York commission were, by a law duly enacted, directly conferred on the existing commission. We see no reason why j udicial powers might not be conferred by direct legislative enactment on a commission already in existence. This case is wholly different. The legislative committee comes into existence by force of a mere concurrent resolution. It then seeks to convert itself into a court by virtue of an antecedent law which did not, and in the nature of things could not, attempt to create this committee for any purpose. The section of the Constitution above quoted requires that the courts themselves be provided by law. Other sections of the Constitution give the Legislature the power to confer jurisdiction on the courts which are created in accordance with the provision of the Constitution. It is no more competent for the Legislature to delegate to one or both, houses of the Legislature the power to make courts, than it is to so delegate the power to fix their jurisdiction and authority. In each case, the Legislature itself must act. It may create the court and define its powers by a single act, or it may create the court by one act and define its powers by another act or other acts.

Something is said with reference to the supremacy of the Legislature unless restricted by express constitutional provision. If this supremacy be conceded, it is supremacy in making laws; supremacy in the exercise of legislative functions. Certainly it has no supreme executive or judical power. In the case of In re Gunn (50 Kan. 155) it was not doubted by counsel for either party, or by any member of the court, that the court had power to inquire into the legality of Gunn's restraint. The divergence of opinion in that case was as to the scope of the inquiry. The commitment was by the House of Representatives itself, not by a committee, and it was treated on all hands as settled law that the House might punish for a contempt of its authority.

In recent cases the question as to the power of the' Legislature to authorize officers other than courts to punish as for contempts, where directly conferred in explicit terms, has been considered and denied. In the case of In re Sims (54 Kan. 1), it was held, that ‘1 paragraph 2543 of the General Statutes of 1889, so far as it attempts to confer on county attorneys the power to commit witnesses for contempt on account of a refusal to be sworn, or testify, as provided in this section, is unconstitutional and void.” In the recent case of In re Huron (ante, p. 152, 48 Pac. Rep. 574), decided by this court, as at present constituted, on April 10, 1897, it was held, Mr. Justice Johnston dissenting, that "a notary public has no power to commit for contempt a witness who, having been duly subpoenaed before him for that purpose, refuses to be sworn or to give his deposition ; and the statute purporting to confer such power upon him is invalid.” In each of these cases, the statutes in express terms conferred the power which was attempted to be exercised. This court held the statutes void and the Legislature powerless to confer on persons other than courts judicial power to imprison as for a contempt of their authority. In the case before us, although there is a strong implication of a purpose to confer authority on legislative committees to punish as for contempt, no explicit authority is given. The language used is, that they shall have power to issue subpoenas to compel the attendance of witnesses, the production of books and papers, and, generally, have the same power with reference to procuring testimony as the district court would have in a case on trial in such court. It may well be held that witnesses are bound to obey subpoenas issued by the committee, and to testify, equally as if they were required to attend and testify before a district court; yet it does not necessarily follow that the Legislature has conferred authority on the committee to punish. Extension of the power to punish is not to be inferred, but must be clearly expressed. It is held that the sole power of the Federal courts to punish for contempt is derived from the statute. Works’s Courts, 499, and cases cited. That a proceeding to punish as for a contempt is essentially criminal in character, is not only settled by a long line of decisions in this State (In re Sims, supra, and cases there cited) , but is almost, if not quite, universally recognized. 4 Encyc. of Pleading and Practice, 766, and cases cited. Under the cases cited, it is clear that the committee which issued the warrant in this case was never invested by act of the Legislature with the powers of a court, and that an attempt to repose judicial power in a committee of the Legislature, as such, must be ineffectual. The claim that a judgment of imprisonment as for a contempt is not an exercise of judicial power, is sufficiently answered by the proposition that it is essentially a punishment for an offense against the public.

That legislative bodies have the power to enforce obedience to their rules of order and to compel witnesses to give testimony upon matters calling for legislative action, though sometimes questioned, is well established, and should be regarded as the settled law. Story on the Constitution, vol. 1, § 846, et seq.; Cooley’s Constitutional Limitations (6th ed.), 158, et seq.; Anderson v. Dunn, 6 Wheat. 204 ; In re Flavey, 7 Wis. 630 ; Ex parte McCarthy, 29 Cal. 395 ; Cushing’s Law and Practice of Legislative Assemblies (9th ed.), § 655 ; In re Gunn, 50 Kan. 155. The power to punish as for a contempt resides in the houses separately; and, while a refusal to testify before a committee duly appointed is a contempt of the house appointing such committee, and may be by it punished as such, the committee has no implied power to punish, and can only report the conduct of the offending party to the house for its action. Cooley on Constitutional Limitations, 161. The power to punish as for a contempt is not expressly given to the houses of the Legislature by the Constitution, but is taken by implication because necessary to the independence and integrity of these bodies. The limits of the power so implied are not clearly marked. They arise from necessity, and cannot extend beyond the limits of necessity. 2 Bishop’s Criminal Law, § 250. The extent of the punishment to be inflicted, while resting in the discretion of the legislative body imposing it, has never been held to extend beyond fine and imprisonment; and where imprisonment is imposed, it has always been held to terminate with the session of the legislature. Anderson v. Dunn, supra; Stox*y on the Constitution, §849. The power to imprison the citizen is not to be lightly implied. Generally speaking, authority for its exercise must be conferred in clear terms.

That the Legislature may confer on courts the power to imprison for an offense against the law, is undoubted. It is also clear that the refusal of a witness to testify before a legislative committee may be made van offense punishable by fine and imprisonment. Chapman v. United States, 5 Appeal Cases (D. C.), 122. In re Chapman, 17 Sup. Ct. Rep. 677. It cannot be said that the act of 1891 creates, or attempts to create, courts of any kind. Nor does it attempt to confer powers on courts to be thereafter established. Its terms clearly contemplate that the powers mentioned are intended to be conferred on committees of the houses of the Legislature as arms of the legislative department of the government, and not as parts of the judicial system. May the Legislature confer on a committee the power to punish recusant witnesses, not judicially, but as a branch of the legislative department of the government? The claim that it might do so would be, indeed, a novel one. The houses of the Legislature are vested with the lawmaking power of the State. The Constitution expressly authorizes the Legislature to confer on tribunals transacting the county business of the several counties powers of local legislation, and also to make provision by general law for the organization of cities, towns, and villages, and to restrict their powers. Aside from the special cases in which legislative powers are expressly allowed to be delegated, the Legisiature itself must exercise the legislative functions. Its power to punish for contempt of its authority comes as an incident to its powers of legislation. Neither the Senate nor the House can delegate to a committee any legislative power. It may use committees to col-/ lect information, and to aid it in many ways, but the power of final action and decision rests with the house. The limits of the power of a legislative body to punish for contempts are not to be determined absolutely by it. It was held by the Supreme Coúrt of the United States, in Kilbourn v. Thompson (103 U. S. 168), that the power of the House of Representatives to force witnesses to testify with reference to a particular matter, and to commit for disobedience of its orders, was subject to review by the court; and that where an attempt was made to investigate a matter merely of private concern, the House had no power to compel a witness to testify. It is said in the syllabus of Interstate Commerce Commission v. Brimson( 154 U. S. 447, 448):

“ The inquiry whether a witness before the commission is bound to answer a particular question propounded to him, or to produce books, papers, etc., in his possession and called for by that body, is one that cannot be committed ’to a subordinate administrative or executive tribunal for final determination. Such a body could not, under our system of government, and consistently with due process of law, be invested with authority to compel obedience to its orders by a judgment of fine or imprisonment.”

To hold that a committee of the Legislature may be given unrestricted power to punish for contempts, is equivalent to saying that the committee, which is a mere branch and arm of the law-making body, may exercise greater power than the house itself possessed. After the adjournment of the Legislature, the Senate and House of Representatives became dormant. Their powers have utterly ceased, for the time being, and those of the House of Representatives are completely at an end, unless the Governor sees fit to convene the Legislature in extra session. The members of the House cannot, of their own volition, again convene. The House can neither take further legislative action nor exercise any function whatever. While the terms of Senators extend past another regular session of the Legislature, the Senate has no more power, until again regularly convened, than the House. But the committee, if authorized to sit in vacation, may adjourn from time to time. The resolution under which this committee was appointed contains no limitation on the time during which the committee is authorized to act, nor does it, in terms, provide for any report, or final action of any kind, on the part of the committee. It would seem that such a committee, if authorized to commit to prison, would have power to continue the imprisonment for an indefinite period, until it might finally dissolve or the terms of office of its members expire. The active powers of the House of Representatives ceased on the twentieth of March. It cannot be that the House, the authority of which to imprison ceased on the twentieth of March, might, merely by the appointment of a committee, perpetuate in that committee power to imprison until another Legislature should be chosen. This would be a delegation, by the House to a committee, of powers which the House does not possess. As an incident to-its legislative functions, the power to punish for contempt ceased with the cessation of the legislative powers of the House, and a mere arm extended for the purpose of gathering information certainly cannot hold that power after it has ceased to exist in the body itself.

The conclusion reached is, that, while the committee may lawfully sit and take testimony, and while the refusal of a witness to answer proper questions propounded by the committee is a contempt of the houses of the Legislature, which might be punished by the Senate or House of Representatives in case the Legislature should be convened in special session, the act of 1891 is insufficient to confer on the committee the power to imprison a witness for refusal to answer questions.

The petitioner will be discharged.

Johnson, J., concurring in the second proposition of the syllabus and in the order discharging the petitioner.