Ex Parte Youngblood v. State , 94 Tex. Crim. 330 ( 1923 )

It is expedient to write in some detail upon the construction of Article 5517, R.S., which undertakes to confer upon legislative committees in existence at the time of the passage of the law, or upon those thereafter created, the power to punish for contempt. The opinions of our own court in Ex parte Wolters, 64 Tex.Crim. Rep., and Ex parte Gray, 64 Tex. Crim. 311, while with reference to a proceeding for contempt incident to inquiries by a committee appointed by the house of representatives do not aid except in so far as they express the views of the court upon certain provisions of our Constitution.

Article 5517 was in force at the time the investigation in the Wolters and Gray matter was had, but the committee did not assume to act under its authority and itself adjudge the parties guilty of contempt, but made report to the house of representatives which then acted under the right expressly recognized in Section 15, Article 3 of the Constitution, that "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 time exceed forty-eight hours."

The decisions of those cases turned upon entirely different points than the one now before us, as is pointed out by Presiding Judge Morrow. We are referred by respondent to only two cases holding that a legislative committee may itself punish for contempt. One is Ex parte Parker, 74 S.C. 466, 7 Am. Eng. Ann. Cases, 874 the other Sullivan v. Hill, 73 W. Va. 49,79 S.E. 670. In the Parker case the opinion rather assumes that the legislature had the right to delegate this power to the committee and does not discuss the question at length. The opinion concludes with this statement:

"The conclusions reached as to the power of legislative committees are sustained by the following authorities: Anderson v. Dunn, 6 Wheat (U.S.) 204; In re Chapman, 166 U.S. 611, 17 U.S. Sup.Ct. Rep., 677; Burnham v. Morrissey, 14 Gray 226, 74 Am. Dec. 676; People v. Keeler, 99 N.Y. 463, 2 N.E. Rep. 615; People v. Sharp, 107 N.Y. 427, 14 N.E. Rep., 319, 1 Am. St. Rep., 851; Matter of Gunn, 50 Kan. 155, 32 Pac. Rep., 470, 948, 19 L.R.A., 519."

If the cases above enumerated were intended to present authority sustaining the right of the legislature to delegate power to a committee to punish for contempt they do not sustain the proposition. In Anderson v. Dunn the House of Representatives of the United States Congress had appointed a committee to make certain investigations; this committee reported back to the House which acted directly in holding the witness in contempt, not of the committee, but of the House of Representatives, and the warrant of commitment under the resolution was signed by Henry Clay who was then speaker of the House of Representatives. In Chapman's case he refused to answer questions propounded by a committee appointed by the United States House of Representatives. The committee did not assume the right to punish him for contempt for such refusal, but he was prosecuted for a misdemeanor in the Federal Court under an Act of Congress making such refusal a violation of law, and this Act of Congress was attacked as being unconstitutional. The question of the right of the committee to punish for contempt was not discussed, and did not arise in that case. In Burnham v. Morrissey, Burnham refused to answer questions propounded by the House of Representatives of the State of Massachusetts. The committee reported the refusal to the House and the House of Representatives adjudged him guilty of contempt, not the committee. In People v. Keeler, Keeler refused to answer questions propounded by a committee appointed by the Senate of the State of New York. The committee reported to the Senate and that body brought the witness before them and adjudged him guilty of contempt. The other two case of People v. Sharp (supra) and Gunn (supra) neither support the proposition that a committee appointed by the legislature may itself hold a witness in contempt of such committee. The case of Sullivan v. Hill, (supra) recognizes that In re Davis, 68 Kan. 368, 49 P. 160, is not in consonance with the holding of the West Virginia Court and cites People v. Learned, 5 Hun (N.Y.) 626, and Ex parte Parker (supra) as supporting the holding in Sullivan v. Hill. We have already shown that the authorities cited in the Parker case do not support the proposition that a legislative committee may punish for contempt; neither do we understand the opinion in People v. Learned (supra) to support such holding. Learned's case turned upon another point. By an Act of the Legislature of the State of New York a canal Ingestigating Commission was created, and clothed with authority to summon and examine witnesses. This commission was not appointed by the legislature, and so far as the record show it did not consist of members of that body; they were appointed by the Governor of the State. The question was the right of the Legislature of the State of New York to clothe the commission so appointed with quasi judicial power to punish recalcitrant witnesses for contempt. This power might be conceded in the legislature and still would not solve the question confronting us.

In the case now being considered the legislature has appointed its own members on the committee and undertaken to clothe that committee with larger judicial power than the constitution (Art. 3, Sec. 15) conferred upon the legislature itself. We quote from Cooley on Constitutional Limitations, 6th Edition, page 161:

"Each house must also be allowed to proceed in its own way in the collection of such information as may seem important to a proper discharge of its functions, and whenever it is deemed desirable that witnesses should be examined, the power and authority to do so is very properly referred to a committee, withany such powers short of final legislative or judicial action asmay seem necessary or expedient in the particular case. * * * A refusal to appear or to testify before such committee, or to produce books or papers, would be a contempt of the house; butthe committee cannot punish for contempts; it can only report theconduct of the offending party to the house for its action."

In re Davis, 58 Kan. 368, in which the right of the legislative committee to punish for contempt is denied we find the following language:

"That legislative bodies have the power to enforce obedience to their rules of order and to compel witnesses to give testimony upon matter calling for legislative action, though sometimes questioned, is well established, and should be regarded as the settled law. Story on the Constitution, vol. 1. Sec. 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.) Sec. 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."

The language in the opinion necessarily refers to the Constitution of Kansas as not expressly giving to the legislature the right to punish for contempt, and therefore the court bases its opinion upon the inherent right in the legislature to protect itself and enforce its legislature functions. The absence from the constitution of that state of any express authority to punish for contempt caused the court further to say "The limits of the power so implied are not clearly marked." The constitution of our own state does not leave the legislature in such a position. It has spoken clearly in Article 3, Sec. 15, and upon the powers therein recognized the Constitution places limitations and they are clearly marked. While the opinions in the Wolters and Gray cases (supra) use some expressions with which we are not in accord, as pointed out in the opinion of Presiding Judge Morrow, yet all of those opinions, as we understand them, recognize that the Article and Section of the Constitution just referred to places limitations upon judicial functions to be exercised by each branch of the legislature in matters relating to contempt. This is further emphasized by Article 2 of our Constitution dividing the powers of government into legislative, judicial and executive, and in adding the very significant words:

"and 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 expressly permitted."

We have therefore not been able to bring ourselves in accord with the proposition of respondent that the Legislature can delegate to a committee of its own members the right to exercise the limited judicial authority granted by the Constitution to the Legislature itself. There is no express grant in the constitution permitting this to be done. We have been unable to reach the conclusion that the legislature would have any right to delegate the limited judicial authority expressly conferred upon it by the Constitution.

The judgment holding relator must be reversed, and he ordered discharged.