In re Di Brizzi

101 N.E.2d 464, 303 N.Y. 206, 1951 N.Y. LEXIS 701

• Court: New York Court of Appeals
• Decided: July 11, 1951
• Status: Published

Opinions

Conway, J.

In this proceeding, petitioner seeks to challenge the legality and constitutionality of an investigation ordered by the Governor, to be conducted by the Attorney-General and certain “ officers of the Department of Law ”, who were specially appointed for the purpose and who were denominated, collectively, as the “ New York State Crime Commission ”.

The petitioner was subpoenaed to appear at a specified place “before the New York State Crime Commission, one of its members, or such other officer as shall have been designated by the Attorney General ”, on April 24, 1951, “as a witness to testify and give evidence in an inquiry into matters concerning the public peace, public safety and public justice, as directed by the Executive Order of the Governor of the State oí New York dated March 29, 1951 * * V’ The subpoena was issued over the names of the members of the denominated “ New York State Crime Commission ” and the Attorney-General and was signed by the “ Chief Counsel to the New York State Crime Commission and Special Assistant Attorney General.” In obedience to the subpoena, petitioner appeared on the date specified therein and was asked to sign a waiver of immunity. Upon his refusal to do so on advice of counsel, no further proceedings were had, and he was served with a second subpoena, identical in form with the first, requiring his appearance on May 8, 1951. On that date, the present application to quash, set aside and vacate the subpoenas was made at Special Term, and petitioner’s examination was postponed pending the determination of the issues raised herein.

Special Term (Benvenga, J.) denied the application (199 Misc. 670) and the Appellate Division affirmed unanimously. Petitioner now appeals to this court, as of right, upon constitutional grounds. (Civ. Prac. Act, § 588, subd. 1, cl. [a]).

Petitioner contends that the subpoenas are illegal and void and should be quashed upon the following grounds: (1) That there is no statutory authority in this State for an investigation such as that contemplated by the Executive Order and, particularly, that there is no statutory authority for the creation of a “ New York State Crime Commission ”, having subpoena powers; (2) that if the only pertinent statute, hereinafter to be netted, purports to grant such authority, it is unconstitutional; and (3) that petitioner’s personal constitutional rights have been violated.

The Governor’s Executive Order of March 29, 1951, named five distinguished men as constituting “ the New York State Crime Commission to investigate and take action concerning the relationship between organized crime and Government, with the following duties, powers and authorities: ”. In the first numbered paragraph of the order, the commission was directed: “ To investigate generally the relationship between organized crime and any unit of Government anywhere in the state.” Paragraph III directed the commission to “ examine into the relationship between the Government of the State and local criminal law enforcement with particular reference ” to seven specified problems. The commission was authorized to co-operate with “ all public officers engaged in the investigation or the prosecution of crime or corruption ” (Par. II), and to “ conduct public or private hearings to accomplish the several purposes of the commission ”. (Par. IV.) All units of the State and local governments were directed to co-operate with the commission. (Par. VII.) The order further provided:

“ (V)

“ Pursuant to the provisions of Section 62, Subdivision 8 of the Executive Law, the Attorney General of the State is hereby directed to inquire into the matters hereinabove set forth involving the public peace, public safety and public justice and is requested to do so by appointing the members of the commission and such counsel, deputies, officers and other persons as the commission may require to accomplish the purpose of this order and to fix their compensation.

“ (VI)

“ The commission hereby established and the Attorney General in cooperation with the commission are hereby authorized and directed to exercise for the accomplishment of the purpose of this order all powers and authorities set forth in Section 62, Subdivision 8 of the Executive Law, and are hereby authorized by me to exercise any power to administer oaths and examine witnesses under oath, to subpoena any person, books, papers or records which I may have or have the power to delegate by virtue of any of the provisions of the Executive Law.”

The Attorney-General thereupon appointed each of the five men mentioned in the Executive Order “ an officer of the Department of Law of the State of New York, to wit, a member of the New York State Crime Commission ”.

Subdivision 8 of section 62 of the Executive Law (now § 63, subd. 8) which was expressly mentioned in the Executive Order (supra) provides in part as follows: “ Whenever in his judgment the public interest requires it, the attorney-general may, with the approval of the governor, and when directed by the governor, shall, inquire into matters concerning the public peace, public safety and public justice. For such purpose he may, in his discretion, and without civil service examination, appoint and employ, and at pleasure remove, such deputies, officers and other persons as he deems necessary, determine their duties, and, with the approval of the governor, fix their compensation. * * * The attorney-general, his deputy or other officer designated by Mm, is empowered to subpoena witnesses, compel their attendance, examine them under oath before himself or a magistrate and require the production of any books or papers which he deems relevant or material to the inquiry. * * ” (Emphasis supplied.)

We agree with petitioner that there is no statutory authorization for the creation of a “ New York State Crime Commission ” as such. That phrase is unknown to any statute in this State. Our inquiry does not end there, however, for the Governor, after purporting to constitute such a commission and stating the scope of the investigation in his Executive Order, went further in paragraphs V and YI thereof and directed the Attorney-General, pursuant to subdivision 8 of section 62 of the Executive Law, “ to inquire into the matters hereinabove set forth involving the public peace, public safety and public justice ” and “ requested ” the Attorney-General to do so by appointing the members of the commission. The Attorney-General, as noted above, has appointed each of the persons named in the Executive Order as “ an officer of the Department of Law of the State of New York, to wit: a member of a commission to be known as the New York State Crime Commission ”. That procedure was in accordance with the statute which authorizes the Attorney-General to appoint and employ “ such deputies, officers and other persons as he deems necessary The further designation that, collectively, the five named persons are to be called the New York State Crime Commission cannot invalidate the otherwise legal appointments. It is merely a convenient name for a group of individuals engaged in a common endeavor. Nor do we think that the Attorney-General was deprived of the discretion granted to him under the statute in making the appointments. The Governor, in his Executive Order, did not direct the Attorney-General to appoint the named individuals, but merely requested him to do so. The fact that the Attorney-General, who is an elected official in his own right, acceded to the Governor’s request and appointed those named cannot be taken to mean that he was thereby prevented from exercising his own discretion. Likewise, we do not think it of any consequence that certain of the members of the commission are not lawyers, since the statute permits the Attorney-General to appoint “ deputies, officers and other persons ” and this is not limited to attorneys.

We are thus led to the question of whether the investigation to be conducted by the Attorney-General, and his officers constituting the Crime Commission, is within the purview of subdivision 8 of section 62 of the Executive Law. That subdivision grants authority to ‘ ‘ inquire into matters concerning the public peace, public safety and public justice. ’ ’ The words there used by the Legislature are sufficiently broad to encompass an investigation such as the one here involved, the principal purpose of which is to determine whether there exists a relationship between organized crime and any units of government in the State. We think the Legislature intended to use the words in their usual and ordinary sense, rather than to ascribe a narrow and technical meaning to them. Petitioner, however, points to the fact that the statute — Executive Law, section 62, subdivision 8 — was enacted in May, 1917, one month following the entry of the United States into World War I (L. 1917, ch. 595) and urges that it was merely “ a war measure with the limited scope of enabling the executive to cope with riots, insurrections, rebellions, sabotage,- and similar acts interfering with the very foundations of the State.” There is little doubt, of course, that the Legislature first recognized the need for such a statute as this because of a war emergency. The Legislature, in enacting the statute, however, utilized general terms, and did not, either expressly or by implication, limit its operation to a time of war. We may not do so now. As we noted in People ex rel. McClelland v. Roberts (148 N. Y. 360, 368): “ A general law may, and frequently does, originate in some particular case or class of cases which is in the mind of the legislature at the time, but, so long as it is expressed in general language, the courts cannot, in the absence of express restrictions, limit its application to those cases, but must apply it to all cases that come within its terms and its general purpose and policy.”

Likewise unavailing to petitioner is the fact that, in 1918, the then Attorney-General in his report stated that the powers conferred by subdivision 8 of section 62 of the Executive Law should not be continued in peacetime and recommended that the statute be repealed at the end of the war (1918 Atty. Gen. 16). The simple answer to this argument is that the Legislature failed to heed the recommendation of the Attorney-General and refused to repeal the statute. That, we think, is fairly conclusive evidence that the Legislature determined that the powers conferred by the statute upon the Governor and the Attorney-General might be necessary for the public good in time of peace as well as in time of war. Moreover, petitioner’s contention on this point is self-defeating, for even if it be assumed that the statute be applicable only when “ sabotage ” or some such peril threatens ‘ ‘ the very existence of the State ’ ’, how can it be denied that a 11 relationship between organized crime and any unit of Government anywhere in the state ”, if shown to exist, might have that very result. An alliance between the underworld and public officials would strike at the foundation of law and order in this State. Organized crime which subverts local units of government is as dangerous a substantive evil as sabotage.

It is thus quite clear that organized crime and its relationship to units of government in this State are “ matters concerning the public peace, public safety and public justice ” within the meaning of subdivision 8 of section 62 of the Executive Law. That being so, the question then arises as to whether the Legislature constitutionally had the power to authorize such an investigation. As a general proposition, it is clear beyond dispute that the Legislature may constitutionally confer authority upon an executive department to exercise subpoena power in connection with an investigation in aid of the executive function. In Dunham v. Ottinger (243 N. Y. 423), we said (pp. 434-435):

“ The power to investigate and examine witnesses to the end of a better discharge of their duties has been conferred upon administrative boards and officials without successful challenge by so many statutes that it is undesirable to refer to them all. * * *

‘ ‘ The power here attacked is akin to that right of the Legislature to investigate and to subpoena and examine witnesses to the end of safeguarding public interests by appropriate legislation and which is so well established as to have passed beyond the realm of controversy. (People ex rel. McDonald v. Keeler, 99 N. Y. 463.) ” Thus, the only question here presented is whether the investigation directed by the Governor can reasonably be said to be for the purpose of securing information to advise him in his executive function.

Under the State Constitution, the Governor’s duties include the following (art. IV, § 3): “ * * * He shall communicate' by message to the legislature at every session the condition of the state, and recommend such matters to it as he shall judge expedient. He shall expedite all such measures as may be resolved upon by the legislature, and shall take care that the laws are faithfully executed. * * * ” Obviously, we cannot say that it is of no importance to the Governor in the discharge of his duties under the Constitution that he have the information sought to be obtained through the present investigation. If there be a relationship between organized crime and units of government in the State and if there be defects in the existing relationship between the State Government and local law enforcement, .these are matters affecting “ the condition of the state ” which should be communicated to the Legislature with appropriate recommendations for their elimination. If existing laws be adequate, at least the Governor would have additional information so that he might “ take care that the laws are faithfully executed.”

Since there exists a reasonable relation between the action taken by the Governor, through the Attorney-General, and the proper discharge of the executive function, it cannot be said that subdivision 8 of section 62 of the Executive Law, as here utilized and applied, is unconstitutional.

The fact that the Attorney-General and the members of the Crime Commission, in determining whether there exists a relationship between organized crime and units of government, may find it necessary to inquire as to whether individual crimes have been committed does not, as petitioner urges, render the investigation unconstitutional as a usurpation of the traditional province of the grand jury in each county of the State. This is a general investigation into organised crime and its relation to government. As an incident thereto, it may be that the existence of specific, individual crimes will be uncovered, but that will merely be collateral and subordinate to the main object of inquiry. The purpose of the investigation is to secure information to guide executive action, not t.o indict .or punish any individuals. If the fact that a proposed investigation might be expected to disclose that crimes have been committed were to render such investigations unconstitutional, then few, if any, legislative or executive commissions could ever be validly created, for such commissions are not ordinarily established unless there is reason to believe that some violation of law has occurred.

The case upon which petitioner so heavily relies — Ward Baking Co. v. Western Union Tel. Co. (205 App. Div. 723) — is clearly distinguishable from the case at bar. In the Ward case, the Governor, purporting to act under subdivision 8 of section 62 of the Executive Law, directed the Attorney-General “ to inquire into the circumstances surrounding the death of one Clarence E. Peters ” (p. 725). The court held that the investigation “ was directed and conducted with the sole purpose in view of obtaining proof that the individual Ward killed the individual Peters with malice aforethought ” (p. 727) and that the statute was not intended, and could not constitutionally have been intended, ‘ ‘ to provide for a criminal investigation against a particular individual ” (p. 729). But, as we have said before, the purpose in the case at bar is not to conduct “ a criminal investigation against a particular person ’ ’, which is for a grand jury, but rather to investigate anywhere in the State the relationship between organized crime and units of government and the relationship between the State Government and local law enforcement. That is a vastly different purpose, and one which properly and constitutionally comes within the purview of the statute.

At this stage of the proceeding, on an application to quash the subpoenas, we cannot say that any personal constitutional right of petitioner has been violated. Whether or not his rights will be infringed by anything done pursuant to the subpoenas is not now before us. Either expressly or by implication of law, the safeguards upon the rights of witnesses before an executive commission, which we enumerated in Dunham v. Ottinger (supra, pp. 438-439), are likewise operative here.

The order appealed from should be affirmed, with costs.