merely intended to subject a party or body investigated to public animadversion, or to vindicate him or it from unjust aspersion, where the legislature had no power to put him or it on trial for supposed offences, and no legislation was contemplated, but the proceeding must necessarily end with the investigation, will not in our judgment be a legislative proceeding, or give to either house jurisdiction to compel the attendance of witnesses or punish them for refusing to attend."

It has also been held that upon the refusal of the clerk of the court of common pleas to produce before a committee any poll-book affecting a contested election, it is lawful for the house from which the committee emanated to order his commitment to jail as for contempt of its authority.

An act creating a state board of tax commissioners with power to send for persons, books, and papers, to hear and question witnesses, has been held void so far as it confers on such officers the power to fine and imprison for contempt. The board belongs to the executive department of the state, and the power to punish for contempt belongs, it was said, exclusively to the courts."

Although it is generally conceded that the legislature cannot delegate its power to punish for contempt of its authority, even to its special committee, yet punishment for contempt of the committee, inflicted by the committee itself, was sustained.3

The question has been raised as to how far, if at all, the courts may review the action of the legislature in punish

1 Ex parte Dalton, 43 Ohio St. 142.

2 Langenberg vs. Decker, 31 N. E. 190, and cases cited.

People vs. Larned, 5 Hun, 626. The legislature cannot delegate the power to punish for contempt to officers or bodies exercising only administrative powers. People vs. Van Tassel, 17 N. Y. 938; Whitcomb's Case, 120 Mass. 118; Lan. genberg vs. Decker, 31 N. E. 190. It seems, however, that it may delegate such power to such officers or bodies when they are acting as a part of the judicial department of the government. Swafford us. Berrong, 10 S. E. 593; In re Daton, 11 S. E. 244; State vs. Aiken, 18 S. E. 690; English and American Law Encyc., vol. iii, p. 777.

ing for the contempts herein considered. The question whether an individual has been prejudiced in his rights by the unauthorized assumption of power by any governmental agency, including the legislature, is judicial. The power to determine such a question is part of that judicial power which the constitutions have confided to the courts, and with which the legislature cannot interfere in any manner, as by assuming it itself, or by delegating it elsewhere than to the courts. The duty of determining such a question cannot be shirked by the courts. Accordingly, it has been said that when the court issues the writ of habeas corpus to inquire into the cause of imprisonment, it has the right further to inquire into the matter and determine whether the committing body, even when it is the legislature, or a magistrate, had jurisdiction. But the court has no appellate jurisdiction from or supervisory powers over the proceedings of the legislature in a matter within the constitutional jurisdiction of that body. The legislature, in refusing to hear a petition before adjudging a person in contempt, may have acted arbitrarily and improperly, yet, as the jurisdiction of the assembly acting in such matters is final, and the courts have no appellate power over it, it is not competent for the court to revise the proceedings of the assembly or suspend its judgment because it has made a mistake or abused its discretion in the premises. When the question involved is one of jurisdiction of the committee and house, the question may be reviewed on habeas corpus, and the right of the relator may be determined on such application.2

Congress and several of the commonwealth legislatures have by law provided that a person who, being duly summoned to

1 In re Falvey, 7 Wis. 630.

2 People, ex rel. Sabold, vs. Webb, 22 N. Y. St. R. 324, in which case the committal was held to be without jurisdiction and void. "The house of representatives is not the final judge of its own powers and privileges in cases in which the rights and liberties of subjects are concerned; but the legality of its action may be determined by the courts." In re Gunn, 50 Kan. 155.

attend as a witness before either house of the legislature or any committee thereof, authorized to summon witnesses, refuses or neglects, without lawful excuse, to attend pursuant to such summons, or who, being present before either house of the legislature, or any committee thereof, refuses to be sworn or affirmed, and to answer any material or proper question, or to produce upon notice any material and proper books, papers or documents in his possession, or under his control, shall be guilty of a misdemeanor and punishable by the courts.1

The power of legislative bodies to punish directly for contempt in refusing to appear as a witness or to answer inquiries of the legislature or its committees is not superseded by such statutes.2

The provisions of an act authorizing the Pacific Railway Commission to invoke the aid of any circuit or district court, to require the attendance of witnesses and the production of books, papers and documents relating to the subject of their inquiry, and empowering the courts in case of contumacy or the refusal of persons to obey subpoenas, to issue orders requiring them to appear before the commissioners and present books and papers, if so ordered, and give evidence touching the matters in question, and to punish disobedience to its orders, as a contempt of court, have been deemed unconstitutional. The court observed that "Congress cannot make the courts its instruments in conducting mere legislative investigations; that the courts would thus be mere executors of the commissioners' will, and would be called upon to exercise either administrative functions or judicial power. If the former, they cannot be vested in the courts.

1 See N. Y. Penal Code, secs. 68-69; 1 N. Y. Rev. Rev. St., secs. 102-104.

If the latter, the

St. 154, sec. 13; U. S.

2 People, ex rel. McDonald, vs. Keeler, 99 N. Y. 463. But in the case of Kilbourn vs. Thompson, C. J. Cartter, of the Sup. Ct. of the Dist. of Columbia, in May, 1876, held that as a refusal to testify was an indictable offense by statute, a trial therefor must be had in the courts and not elsewhere. See Cooley's Const. Limitations, p. 161 n.

power can only be exercised in cases of controversies enumerated in the constitution, or in cases of habeas corpus."1

Proceedings under statutes and resolutions like the foregoing are not trials but investigations. The committees are investigators, inquirers, pursuers," smellers." Their duties are not judicial but administrative. They are not to hear and decide, but to find out and report. Their proceedings may be kept secret, as were those of the Senate Sugar Scandal Committee of 1894, or made public, as were those of the Lexow Police Department Investigating Committee of 1894. The witnesses before such committees have no legal right to the aid of counsel," nor are such committees bound by the ordinary laws of evidence.3 But it seems that a witness cannot be compelled to give an answer which might tend to criminate him, unless adequate provision is made that such evidence shall not be used against him in criminal proceedings.4

1 In re Pacific R. Com'n, 32 Fed. Rep. 251. In re McLean, 37 Fed. Rep. 648. The decisions of the Circuit Court holding that Congress cannot make courts instruments in the conduct of mere legislative investigations seem to be inconsistent with a late opinion of the U. S. Supreme Court. That eminent tribunal considered constitutional a provision of a statute which empowered the Circuit Courts of the United States, whenever their aid was invoked by the Interstate Commerce Commission, to order any person or corporation to appear before the Commission and give evidence, and also to punish as a contempt of their authority any failure to obey such orders. The court observed that the provision was not in conflict with the Constitution of the United States as imposing on judicial tribunals duties not judicial in their nature, and that a judgment thereunder was none the less one of a judicial tribunal dealing with questions judicial in their nature, because its effect might be to aid an administrative body in the performance of duties legally imposed upon it by Congress. Interstate Commerce Commission vs. Brimson, 154 U. S. 447; Ch. J. Fuller and Judges Jackson and Brewer dissented, 155 U. S. 1. In Pennsylvania it has been held that the courts may be authorized to procure and present evidence to the legislature in cases of contested elections pending before the legislature, to be acted upon by the legislature as it sees fit. In re McNeill, 111 Pa. St. 235.

2 Ex parte McCarthy, 29 Cal. 395; McDonald vs. Keeler, 99 N. Y. 463. See In re Falvey, 7 Wis. 531.

See People vs. Sharp, 107 N. Y. 427; Counselman vs. Hitchcock, 142 U. S. 547; In re Falvey, 7 Wis. 630.

The counsel and chairman of the Lexow Committee are reported to have maintained that the removal of a police captain by the police board because of the evidence and admissions of the captain before the committee was "a misuse of the testimony taken before the committee, and a contempt of the Senate of the State of New York." The three police commissioners promptly obeyed the order of the committee and reinstated the police captain.'

Many of the questions herein considered will probably soon again be passed upon by the Supreme Court of the United States.

The Grand Jury of the Supreme Court of the District of Columbia indicted several persons for refusing to answer questions relating to alleged campaign contributions by the Sugar Trust in order to secure favorable tariff legislation, which were put to them by a committee of the United States Senate, appointed to investigate the sugar scandals.

During the November Term, 1894, the Supreme Court of the District of Columbia overruled the demurrers to the indictments. The court declared constitutional the statute which provides for the indictment of witnesses refusing to answer questions propounded by Congressional committees. It held that the Senatorial committee had jurisdiction to inquire whether senators had been dealing in stocks of the sugar refining companies, known as sugar stocks, during the pendency of the tariff bill in the senate; also, that in order to confer jurisdiction on the committee, it was not necessary for the resolutions to set forth or avow what final action the Senate had in contemplation upon the information to be obtained. It held it sufficient if it appeared that the Senate had lawful authority to take any legitimate action, unless it also affirmatively appeared upon the face of the resolutions that no final action was contemplated, and that the investigation was carried on simply for the purpose of vindication or animadversion. It held that

1 See N. Y. daily papers, Dec. 19-22, 1894.