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Court of Oper and Terminer-Albany County.

March, 1884.



PENAL CODE, 3 719.

The senate of the state of New York directed its standing committee on

cities to investigate the Department of Public Works in the city of New York, and ascertain whether or not certain "grave charges of fraud and irregularities " made by the public press " and by the “Union League Club of the city of New York," against Hubert 0. Thompson, the head of such department, were true; such committee was empowered to “send for persons and papers,” and was directed " to report the result of such investigation and its recommendations concerning the same to the senate, on or before the 15th day of April, 1884.” The senate bad no judicial control of the officer whose couduct was to be investigated, but could initiate legislation to prevent abuses in such department, and to remove its head. Owe William McDonald had been summoned as a witness before the senate committee, and had refused to answer questions concerning materials furnished to such department, and other questions touching his business as a dealer in coal, and had left the presence of such committee, and declined to be further examined. For such conduct McDonald had been ad judged by the senate to be in contempt, and had been sentenced to imprisonment in the common jail of Albany county, “until the final adjournment of the present legislature, unless sooner discharged by order of the senatc.” On an application for his discharge from such imprisonment by habeas corpus, returnable at the

Albany Oyer and Terminer, then in session, it was Held, first. The resolution of the senate should be construcd as author

izing an inquiry for the purpose of legislation, and not simply as one to determine the truth of charges made against an official, over whom

it had no judicial control. Second. The power to punish for a contempt is a judicial and not a legis

lative one. Third. The provisions of the Revised Statutes (1 R. S. (Edm. ed.] 153,

§ 13, subd. 4), so far as they authorize the pupislimont by the legis

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lature, or either house thereof, of an alleged contempt incurred in the prosecution of a purely legislatire inquiry, and not in one in which it has judicial functions to discharge (there are judicial duties devolved upon the legislature and each house thereof by the constitution of the state), believed to be unconstitutional for two reasons, to wit: 1st. The lodgment of judicial power in a different department is a prohibition against the transfer by the legislature to itself of any such power. 2d. As violating article 1, section 6 of the constitution of the state, declaring “No person shall be . . . deprived

of life, liberty or property without due process of law.” Fourth. The power to punish for an alleged conteinpt incurred in the

course of an inquiry, made for the purpose of legislation, is not an

inherent one in a legislative body. Fifth. The congress of the United States is a legislative body as well as

a legislature of the state. Whatever unconferred powers the latter has as ancillary to its right to legislate, must also be possessed by the former in aid of its legislation upon subjects within its jurisdiction. The case of Kilbourn o. Thompson, 103 U. 8. 168, is, there

fore, applicable to the present. Sixth. Neither branch of the state legislature, under section 17 of article

1 of our state constitution, obtains the power to punish for contempt in aid of legislation, because: 1st. It was not a part of the common law" of England, but of the “ Lex et Consuetudo Parliamenti,” as parliament asserted and as was universally conceded, its “ power being above the law is not founded upon the common law.” 20. No act. of the legislature of the colony of New York ever conferred upon

any such power. 3d. As the power of parliament was omnipotent, and the power to punish for contempt was never conferred upon the colonial nor the state legislature, it is a legal impossibility that either could succeed thereto as an inheritance, for both took

only conferred power. Serenth. If the protisions of the Revised Statutes before cited, and which

are claimed to confer the power exercised, are unconstitutional, then they were not validated by article 1, section 17 of the constitution, because only such statutes as were “ in force” at the time of the adoption of the constitution are covered by its language. In no proper sense can an unconstitutional law be said to be " in force." Neither can a long continued claim of power and its occasional exercise conser it, if illegal.

A citizen deprived of his liberty can always question the existence of an authority which holds him in custody. Eighth

. The power of the state legislature, and of either house, to punish for a contempt committed during the progress of judicial inquiry which it is authorized to make, are undeniable, but the existence of any such power in aid of pure legislation is more than doubtful.

But while a single judge, holding without associates a court, enter

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tains these views, he should still, in judicial action, wbile freely discussing, as is his duty to do, a question of such vast importance, to the end that it may be rightly settled, not rashly attempt to overturn and disregard the practice of the state for many years, the judicial dicta of its judges, and the opinions of elementary writers of acknowledged high authority, upon cascs not necessarily controlling in this state. Especially should he not do so when its effect will be, if he is wrong in his views, to improperly arrest an important inquiry which a legislative body, largely composed of eminent lawyers, supposes it has the power to pursue; and to practically overrule a decision of

the court immediately above the one which he is holding. Ninth. Section 719 of the Penal Code does not apply. That section was

intended to de ne th accuracy when the penalties for crime prescribed by such code took effect, and such penalties relate only to those which are to be pronounced by courts on criminal prosecution instituted to punish crime. It does not interfere with any power elsewhere bestowed to punish summarily for contempt.

Application by William McDonald to be discharged from imprisonment in the common jail of Albany county, in which he is confined by the sheriff of such county, under a commitment of the senate of the State of New York, which recites a judgment of such body holding him to be in contempt for refusing as a witness to answer questions propounded by its standing committee upon cities, and sentencing him to imprisonment therefor.

T. C. E. Ecclesine and Hamilton Harris, for McDonald.

Henry Smith and N. C. Moak, for the sheriff of Albany. county.

F. W. Whittridge and B. F. Tracy, for the Senate.

WĖSTBROOK, J.-William McDonald, who is confined in the jail of Albany county, through and by the writ of habeas corpus asks his discharge from such imprisonment.

The writ was allowed by the Hon. WILLIAM L. LEARNED, one of the justices of the Supreme Court of this state, and was made returnable at the court of Oyer and Terminer, then in session in the county of Albany, as the law required. 2 Edm. Stat.



784, § 227; People ex rel. Phelps v. Fancher, 2 Hun, 226, 236, 237.

The petition and return show the cause and circumstances of the commitment of McDonald to be as follows:

On the 14th day of January, 1884, the senate of the state of New York passed the following preamble and resolution:

"Whereas, Grave charges of fraud and irregularities have been made from time to time by the public press, and recently by the Union League Club of the city of New York, against Hubert 0. Thompson, commissioner of public works in the city of New York; and

Whereas, These charges have, in the opinion of many persous, never been satisfactorily explained and fairly refuted; and

"Whereas, It is of vital importance to all the taxpayers of this state that the heads of all public departments should be beyond reproach ; therefore be it

" Resolved, That the standing committee on the affairs of cities of this senate be, and it hereby is, directed and empowered to investigate the Department of Public Works in the city of New York, with power to send for persons and papers, and said committee is hereby authorized to employ a stenographer and such counsel and accountants as it may deem necessary for the thorough discharge of the duties hereby imposed. Such committee to report the result of such investigation and its recommendations concerning the same to the senate on or before the fifteenth day of April next.”

During the month of February succeeding the date of the passage of the resolution just given, William McDonald, in obedience to its subpæna, appeared before the senate committee as a witness, and was examined at considerable length in regard to material-gravel, limestone chips, &c.—which he had furnished to the city. The witness, through his counsel, who appeared, as the committee held, only by its courtesy and not by right, refused and declined to answer sundry questions designed to ascertain where he had obtained the materials furnished to the city by him, and also other questions concerning his business as a dealer in coal. The witness finally, by advice

of counsel, retired from the presence of the committee and refused to be further examined.

The senate committee reported the conduct of the witness to the senate, and on the 27th day of February, 1884, in pursuance of its resolution and by force of its warrant issued to its sergeant-at-arıns, McDonald was brought before the senate to answer for his alleged contempt in refusing to answer the ques- . tions propounded by the committee, and in leaving the presence of the committee after a refusal to submit to a further examni. nation. Upon his arraignment before the senate McDonald was heard by counsel, and the result was the adoption of a resolution by the senate on the 28th day of February, 1884, adjudging him to be in contempt for refusing to answer the questions asked by its committee, and for refusing to submit to a further examination by and before such committee, and sentencing him to imprisonment in the Albany connty jail until he should submit himself to be examined by such committee, and in case of his refusal so to do, the imprisonment to continue until the final adjournment of the legislature. 'Under such resolution McDonald was remanded to the custody of the sergeant-at-arıns, who was directed to deliver him to the sheriff of Albany county, be confined by said sheriff in the common jail of such county "until the final adjournment of the present legislature, unless sooner discharged by order of the senate."

After the adoption of the resolution by the senate McDonald was again brought to its bar, and was informed by the president of its sentence. The senate then issued its warrant under its seal, signed by its president and clerk, reciting the proceedings had before it, and directing the imprisonment of McDonald in conformity with its sentence, under which warrant he is now imprisoned in the Albany jail, and which warrant is returned to the court as the sole cause and ground of imprisoninent.

Preliminary to the statement of the question which this proceeding presents, it is proper to observe that, in support of the legality of the imprisonment of McDonald, it is not urged that either the senate or the legislature had any judicial control over the incumbent of the office of commissioner of public works of the city of New York. Neither could punish hiru


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