Ex Parte Wolters , 64 Tex. Crim. 238 ( 1911 )

Having expressed my views so fully in the case of Ex parte Gray, this day decided, I hardly deem it necessary to write an opinion in this case, but inasmuch as I do not concur fully in the opinion of either Judges Davidson or Prendergast herein rendered, both of which have been written since I wrote the opinion in the Gray case, it may not be amiss for me to briefly state my views.

I do not concur in the opinion of Judge Davidson wherein he holds that at a special session the Legislature would not have authority to create this committee. The Legislature fully appreciated it had no right to enact laws in regard to amending the election law, or they would not have petitioned the Governor to submit this question, but the right of petition is one guaranteed by the Constitution, and when they had decided to petition the Governor, it was not amiss for them to seek to obtain information to enable them to act promptly. Judge Davidson is in error wherein he alleges the Governor informed the Legislature he would not submit the question. In answer to the petition to submit this question, the Governor informed the Legislature, "When the appropriation bill is passed, the Governor will consider the advisability of submitting additional questions for the consideration of the Legislature." (Page _____, House Journal.) Instead of refusing, this was a promise that he would"consider the advisability" of submitting these questions, and if the Legislature, through a committee, sought to elicit information to impress upon him the necessity of such legislation, it was within the scope of their authority. The Legislature at a special session has all the power it has at a regular session, except that which is inhibited by the Constitution. Section 5, of article 3, of the Constitution, provides that the Legislature shall meet every two years, and at other times when convened by the Governor. If this was all, there would be no limitation on their authority at a special session, which would not also apply to a regular session. However, in section 40, of the same article, it is provided there shall be no "legislation" upon subjects other than those designated by the Governor. This is the sole limitation upon their power at a special session, and as shown in the Gray case, this word has a well defined meaning in law — the passage of laws, the repeal of laws, or the amendment of laws. The Legislature recognized this limitation and petitioned the Governor to submit this matter. This they certainly had the right to do, and it has never been considered that this limitation narrowed their power to limits it is now sought to confine it. At every special session of the Legislature resolutions have been passed not mentioned in the proclamation of the Governor. In 1910, at a special session, the Legislature provided by resolution for the removal of the body of Stephen F. Austin, and to pay therefor out of the contingent fund. No one questioned their authority, and for a number of years the Legislature at every special session has passed resolutions not mentioned in the proclamation of the Governor, and no one questioned their right to do so. The Thirty-First Legislature provided for an investigating committee to sit in vacation, and examine into penitentiary affairs and recommend legislation, and the Governor was so impressed by the evidence and recommendations that he convened the Legislature in special session and submitted the enactment of laws on this question to them, and if the Thirty-Second Legislature thought the election laws needed amendment, it was within its province to gather information, and thus seek to impress the Governor with the necessity for such laws, and if the investigation had so impressed the Governor, we are impelled to believe he would have submitted the question, for, instead of refusing to do so, he told the Legislature he would consider the advisability of doing so. At least, they had the authority to gather and preserve the information for future use. And in so far as the House Committee is concerned, we do not think anyone can seriously question its right to appoint one, or that the committee was legally constituted. Section 8, of article 3, provides that "each House shall be the judge of the election and qualifications of its members," and subdivision 8 of the House resolution provided for this committee to investigate theelection and qualifications of its members. That they had this right none can gainsay. This is discussed at length in the Canfield case, referred to in the Gray case, and in the opinion of Judge Prendergast in this case, and recently at a special session of the United States Senate by simple resolution it provided for a committee to investigate the election of Senator Stephenson, and this committee has been conducting this investigation in vacation. We think to hold that the House did not have the right to appoint this committee is not only against the weight of authority, but is in the face of all the authorities.

Again, we do not agree with Judge Davidson when he holds that "the matters inquired about were such matters as did not require the applicant to answer." Neither do we agree with Judge Prendergast that "all the matters inquired about were matters that the Legislature was authorized to inquire into." As said in the Gray case, we hold that the Legislature would have the right to obtain information which would enable it to correct any evil that might exist, upon which they would be authorized to control or regulate. The information sought must be such as they, in their legislative capacity, would have a right to correct, and the information obtained must be such as would aid them in arriving at a correct conclusion. Relator was asked the question: "Will you state the character of expenses made by you in a general way?" The Legislature has the right to legislate upon elections, and limit the purposes for which money may be spent, and this question we think they had a right to ask, and it should have been answered. Again, the question: "Will you state the amount expended in preparing, mailing, and distributing campaign matter?" was a proper question, for the Legislature would have the right to limit the amount to be thus expended in an election. But the questions which sought to elicit information as to what individuals contributed to the fund, or the amount of such contribution, were improper, for the Legislature would not have the right to prohibit an individual from contributing, unless it should prohibit all individuals, and in seeking to obtain the names of the contributors, it was seeking information which it had no right to demand. We have referred to these isolated questions to make our holding clear, that the information sought must be such as the Legislature would have the right to regulate or control by law, and when the questions go beyond that scope, they are seeking what they have no right to demand. Others might be quoted, both pro and con, but we refer to these to make our holding clear.

In the third place, we do not agree with Judge Prendergast wherein he holds that failure to answer a question propounded by an investigating committee is "obstructing the proceedings of the Legislature." We have read carefully the cases cited, and in all of them that so hold, it is so held on the ground that they have this "inherent power," because the English parliament has always exercised this power. In none of the cases did the States, wherein it is so held, have a Constitution worded as is ours —"and no person or collection of persons, being of one of thesedepartments, shall exercise any power properly attached to eitherof the others, except in the instances herein expresslypermitted."

In the New York case, People v. McDonald, 99 N.Y. 463, it is expressly stated that the Constitution of that State has no such provision. In the South Carolina case, 74 S.C. 466, it is held that even a committee has the power to exercise this judicial authority. No other court so holds, but even in that case it is held that the committee must act within the limits prescribed by the Constitution.

In the Massachusetts case, 120 Mass. 120, it is held that the Legislature of that State had the power, on the ground that "each House of the British Parliament had the largest power to punish every description of contempt of its authority." . . . "But, according to the decisions of most eminent judges, either branch of a colonial Legislature has no such power of punishment; Kielley v. Carson, 4 Moore P.C., 63; Hill v. Weldon, 3 Kerr. N.B., 1; even for refusal to attend as a witness when duly summoned; Fenton v. Hampton, 11 Moore P.C., 347; Falconer, L.R. 1 P.C., 328 — unless by established usage; Beaumont v. Barrett, 1 Moore P.C., 59; or by express act of the imperial parliament. Dill v. Murphy, 1 Moore (N.S.) 487. Speaker v. Glass, L.R. 3 P.C., 560. So in Ex parte Brown, 5 B. S., 280, the Court of King's Bench held that the House of Keys, which was the lower branch of the Legislature of the Isle of Man, and had also judicial functions in appeals from the verdicts of juries, had no power to commit for contempt, when acting in its legislative capacity.

"It is universally admitted that by the law of England a town or city council had no power, without express act of parliament, to make an ordinance with penalty of imprisonment, or to commit for contempt of its authority. Grant on Corp., 84-86. Parke, B., in 4 Moore P.C., 89; Barter v. Commonwealth, 3 Penn., 253.

"The British parliament has supreme and uncontrolled power, and may change the Constitution of England, and repeal even Magna Charta, which is itself only an act of parliament. But in this Commonwealth the legislative, as well as the executive authority and the courts of justice, is controlled and limited by the written Constitution, and can not violate the safeguards established by the twelfth article of the Declaration of Rights. Emery's case, 107 Mass. 172.

"In the United States, each branch of a Supreme Legislature has the same power to commit for contempt as either house of parliament. Such a power has been adjudged to be inherent in the federal Senate and House of Representatives, although not expressed in the Constitution. Anderson v. Dunn, 6 Wheat., 204. A like power doubtless exists in each branch of the General Court of Massachusetts, and of other State Legislatures, which are supreme within their sphere, and not, like the colonial assemblies of Great Britain, created by and subordinated to the national Legislature. Burnham v. Morrissey, 14 Gray, 226; State v. Matthews, 37 N.H. 450; Falvey's case, 7 Wis. 630.

"But in Anderson v. Dunn, the court said that `neither analogy nor precedent would support the assertion of such powers in any other than a legislative or judicial body.' 6 Wheat., 233, 234. To such a subject the words of Lord Coke apply with peculiar force: `When authority and precedent is wanting, there is need of great consideration, before that anything of novelty shall be established, and to provide that this be not against the law of the land.' 12 Rep., 75.

"At the time of the adoption of the Constitution of the Commonwealth, it was no part of the law of the land that municipal boards or officers should have power to commit or punish for contempts. The second article of amendment of the Constitution, which first conferred upon the General Court `full power and authority to erect and constitute municipal or city governments in any corporate town or towns in this Commonwealth,' authorized it to grant to the inhabitants thereof such powers, privileges and immunities, `not repugnant to the Constitution,' as it should deem necessary and expedient for the regulation and government thereof; and provided `that all by-laws made by such municipal or city government shall be subject at all times to be annulled by the General Court.'

"The city council is not a legislature. It has no power to make laws, but merely to pass ordinances upon such local matters as the Legislature may commit to its charge, and subject to the paramount control of the Legislature. Neither branch of the city council is a court, or, in accurate use of language, vested with any judicial functions whatever. Nor are its members chosen with any view to their fitness for the exercise of such functions. To allow such a body to punish summarily by imprisonment the refusal to answer any inquiry which the whole body, or one of its committees, may choose to make, would be a most dangerous invasion of the rights and liberties of the citizen."

Thus it is seen that in those States holding that the Legislature has such judicial power, it is on the ground that there is no constitutional inhibition, and they possess the inherent power because it was exercised by the British parliament. But in this State we have an inhibition in the constitution, therefore our Legislature has no inherent power to punish for contempt, and it can not do so except in cases where specifically authorized, for as said in the Massachusetts case, "Neither branch is a court, or vested with judicial functions. Nor are its members chosen with any view of their fitness for the exercise of such functions. To allow such a body to punish summarily by imprisonment the refusal to answer any inquiry which one of its committees may choose to make, would be a most dangerous invasion of the rights and liberties of the citizen." And in Rapalje on Contempt it is said: "The two houses of the English parliament and the Legislatures of the several States have this power, except when restricted by constitutional limitations," citing authorities. In this State we have constitutional limitations.

From judicial and legislative history, and from personal knowledge, the writer knows that the Senate and House each keep a daily journal, recording its proceedings, and that in the past it has never been considered that the proceedings of an investigating committee were proceedings of the House or Senate, and such proceedings do not appear in the daily journal of proceedings of either House. Investigating committees sit while the Legislature is in session, and while it is not in session, and by no stretch of imagination can the proceedings of an investigating committee sitting in vacation be considered "proceedings of the House while in session," and it can not be proceedings of the House in one instance and not in another.

Those cases that hold the Legislature has this power, hold that it is sitting as a court, and that no other tribunal has the right or authority to inquire into its judgments, but they are final, and even though the questions may invade the rights guaranteed the individual by the Bill of Rights, and are such questions as they have no authority to ask, yet their judgment is final, and the citizen must suffer the penalty. To this doctrine we can not give our assent. Our government was so framed that no individual or department of government could act tyrannical and take from the citizen his liberty without just cause. The executive can not promulgate a law and have the citizen tried and punished, and if he should do so, this court will relieve against such arbitrary acts. The legislative branch can not invade the Constitution and if it does, we will restrain. This court can not act tyrannically, for if so, the Governor is given power to relieve by exercising the pardoning power. Absolutism has but little place in our form of government, and being of the opinion that the Legislature is prohibited from exercising judicial power, except in those instances wherein therein authorized, and that it has no power to punish for contempt except in the instances authorized in section 15 of article 3, we are constrained to the opinion that relator should be discharged. In Rapalje on Contempt it is said: "In this country the courts have unquestioned power to decide upon the validity of the commitment for contempt by a legislative body; i.e. to pass upon the question whether the Legislature acted within its jurisdiction in the particular case, but in England the doctrine of the omnipotence of parliament shuts the door to such inquiry, and each house of parliament is the exclusive judge of the contempt of its own authority," citing many authorities to be found on page 4. We are truly glad that no department of this government has been held to be "omnipotent."

This question has not been one easy for us to solve. We read the authorities before writing the Gray opinion. Since Judges Davidson and Prendergast have written their opinions, we have again reviewed the authorities, and, while reluctantly, yet we are forced to the conclusion that our Legislature has no right to adjudge one guilty of contempt in this character of proceedings, for failure to answer a question propounded by an investigating committee, is not an "obstruction of legislative proceedings" during its sessions.