Full opinion text
DAVIDSON, Presiding Judge. The applicant was adjudged guilty of contempt of the House of Re presentatives, at the recent called session of the Legislature, for refusing to answer questions propounded by a committee appointed by that body to inquire into sundry and divers things supposed to have occurred in connection with the prohibi-tion election held on July 22, 1911. If this election had resulted favorably to prohibition, the proposed amendment would have supplanted the present system of local option and placed in effect statewide prohibition. The result, however, was antagonistic to prohibition, and the amendment was lost by a majority of about six thousand votes. On June 20, 1911, His Excellency, Gtovernor Colquitt, issued a proclamation calling a special session of the Thirty-Second Legislature to convene on Monday, July 31, 1911, in which proclamation he indicated the purposes to be: '1. To make appropriations for the support of the State government and for the public service for the fiscal years beginning September 1, 1911, and September 1, 1912. 2. To apportion the State into senatorial districts and into representative districts and to fix the basis of representation therefor. 3. To consider and act upon such other matters as may be presented by the Governor, pursuant to section 40 of article 3 of the Constitution of Texas. . . The Legislature met, and in pursuance to said call, began its work on July 31, 1911. About August the first, realizing the fact that authority had not been mentioned in the proclamation of the Governor for the purposes for which concurrent resolution Ho. 1 was introduced in the Senate, seventeen members of the Senate, who were all favorable to statewide prohibition, presented said resolution to the Governor. The first section of that resolution related to the amendment of the election laws so as to further provide against illegal payment of poll taxes, and to enact such other laws as were deemed by the committee necessary to safeguard the ballot box, and to secure elections without taint of irregularity, fraud or other corrupt practices. The second section of the resolution related to the prohibition of brewery owners, stockholders therein, saloons, saloon owners, and all others connected directly or indirectly with the liquor traffic, from contributing to campaign funds to influence elections, and also prohibiting persons from receiving, using, or disbursing funds so contributed by those engaged in the liquor traffic. The remaining sections of the resolution referred to legislation in regard to the sale of liquor in some form or another. The Governor refused to respond to this request and declined to submit the matters therein mentioned for the action of the Legislature. Concurrent resolution Ho. 1 was abandoned by the Legislature. To meet this refusal of the Governor, each branch of the Legislature acted independently in the appointment of committees. On the third of August a resolution, not concurrent, was introduced in the House of Representatives by friends of statewide prohibition, providing for the creation of a committee to investigate supposed irregularities occurring at.the election held on July 22, 1911. This committee, by the terms of the resolution, was empowered to investigate whether or not there had been poll taxes illegally secured, or receipts or exemption certificate, etc., issued, and if paid for or issued, by whom paid for and by whom issued, and to whom issued, and who furnished the money for such purposes. It was also empowered to inquire into all violations and evasions of the election laws of the State, and the manner and method of such evasions, and by whom made or instigated. These matters all related to the election held on July 22 in regard to the prohibition amendment. There were other matters mentioned in the resolution to be submitted to said committee unnecessary to enumerate. The committee was promptly created and given all the power possible to be conferred by the House of Representatives to carry out the purposes of the resolution. This included the issuance of process, its execution and enforcement, and providing for the expenses incurred by the members of the committee. It may be also mentioned as a matter of some materiality that the friends of the amendment recently defeated met at Fort AArorth and passed a number of resolutions condemnatory of those who opposed the prohibition amendment, in which many derelictions were charged, intimating corrupt practices, and calling upon the Legislature to cause an investigation to be made in regard to these charges. This occurred two days before the Legislature was to meet at Austin. The convention at Fort AYortli adjourned to meet at Austin simultaneously with the convening of the Legislature. On the day the Legislature did convene at Austin, those gentlemen, or a large part of them, met in the city of Austin and held a meeting. Quite a number of the members of the Legislature attended that meeting, that body having adjourned for that purpose, at which meeting practically the same resolutions were endorsed that had been endorsed at the Fort AYortli meeting. It is also stated that it was understood or agreed in that meeting that the Legislature should carry out the will and wishes expressed at said meeting. The above is shown by the record in this ease. The creation of the committee and its work occurred after the Governor had declined to submit the matters requested in the concurrent resolution Ho. 1. The consideration “of the advisability of submitting additional questions for the consideration of the Legislature” was but a courteous refusal to comply with request contained in concurrent resolution Ho. 1 on the part of the Governor. The Legislature so understood and acted. The committee after its appointment met.and began work. Among other witnesses summoned before it was this applicant, who was chairman of the anti-state-wide executive committee, and, as its head, managed the campaign against state-wide prohibition. Many questions were asked of and answered by him. Other questions were asked, which he declined to answer. These cover several pages of the cdmmittee’s report. 'It is deemed unnecessary here to set out all these matters. They can he summarized with this statement: He declined to answer questions seeking to elicit information as to who contributed to the campaign fund of the anti-state-wide side of the issue, and the amount received, from whom received, as well as to whom he paid out the money contributed. Names were suggested in the questions to 'him, but to all these he firmly declined to give an answer. We may sum up, in a general way, that he did state the money received by him or paid to him for such purpose was not used in violation of any of the laws of the State, or so as to infringe any idea of good morals, or in any illegitimate manner. There are many matters of evidence brought out in the record which brought in review the conduct of the political campaign and incidents thereto pertaining. These are not mentioned, because not thought to be necessary to a decision of this case. Several questions are presented for discussion. It is not the purpose of this opinion to review all these questions. The first one to be discussed is, did the House of Representatives have authority to appoint the committee it did appoint? Second, if so, did that committee have authority to demand of applicant answers to the questions propounded to him, and were the questions and answers material to the matter under investigation? Both propositions should be answered in the negative. Be it remembered that this was a special and not a regular or biennial session of the Legislature. The scope of the authority of a special session of the Legislature is to be found in section 40 of article 3 of the Constitution, which reads as follows: ■ 'When the Legislature shall be convened in a special session, there shall be no legislation upon subjects other than those designated in the proclamation of the Governor calling such session, or presented to them by the Governor, and no such session shall be of longer duration than thirty days.” From this it will be observed that when the Legislature is convened in special session such express limitation is placed upon the power of that body that it can not legislate upon any subject or subjects except those specially designated in- the proclamation of the. Governor calling the body together, or such as may be subsequently presented to that body by the Governor. This limited rule set out in the above section does not apply to the Legislature when sitting in its biennial session. It will, therefore, be observed there is a marked difference between the power of the Legislature in regular session as compared with its power when sitting in a special session. The Legislature by the terms of article 2, section- 1, of the Constitution, is made the lawmaking power of the State. This provision of the Constitution limits that body to legislation, unless there be found some other provision in that instrument authorizing it to exercise other powers and functions such as, among other things, to present articles of impeachment against named officials, or expel members for sufficient cause. It also has power under article 3, section 15, to punish by imprisonment during its session 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 question then here is, what may the Legislature do at a special called session in regard to legislation, and for what purpose by concurrent resolution, or a resolution of either House, and for what purpose may either or both Houses appoint committees, and what subjects may be investigated by said committee? To the mind of the writer, these are answered definitely by article 3, section 40. By the express terms of that section, the Legislature is expressly restricted and limited, first, to the passage only of such laws as the Governor has authorized in his proclamation, or in subsequent messages submitted by him; and, second, either or both Houses may have authority to make investigations looking to the enactment of such laws as are within the proclamation or message of the Governor, but the Legislature may not and can not investigate matters for legislative purposes not within the proclamation. Hor would the Legislature have authority to investigate matters the Governor declined to submit to it, and this proposition is intensified when the demand or request has been made upon him and he declines to accede. This, the Avriter understands, would be the limit of authority on the part of the Legislature to either legislate or investigate matters looking to legislation. This, as before stated, is more than intensified when the fact is taken into consideration that the Governor refused to refer or submit these matters for legislation. It is thought to be a correct statement that the Legislature either in general or special session would have no authority either as a body or through-committees to investigate matters for legislation about which that body could not enact laws, and when they were without authority to so enact. It might be concluded as a correct proposition, so far as this case is concerned, that whenever the Legislature has authority to enact laws, it would have corresponding authority to make necessary investigations for the ascertainment of such facts as woulá be necessary as a predicate for the enactment of laws wherein the matter was then pending and formed a part of the proceedings of that body. These rules apply as well to special as to general sessions, but there must be authority in either event as a predicate for legislative action upon the subject or subjects under investigation, otherwise is could not be considered a part of the proceedings of the Legislature. If the above propositions are -correct, then the special session had no authority to appoint the committee to investigate, and the committee so appointed was powerless to investigate matters about which that body could not possibly legislate or take action. It is true, the Legislature is one of the three coordinate branches of the government, and in a general way has power in matters of legislation, but there is to be noted a marked difference and distinction between the scope of power of the regular session and that of a special session of the Legislature. When that body meets in its biennial session, its authority to enact laws and make investigations is as broad as is the constitutional guaranty ol power, to wit: as the law-making department of the government. The limitation of such power is to be found in the terms of the Constitution as expressed or necessarily implied. It is not the purpose here to go into any discussion as to the limitations of express or implied power, but the rule is entirely different when the Legislature meets in special session. In the latter case they have no authority to legislate except as set forth by the Governor in his proclamation, or in subsequent messages sent by him to that body. These propositions being correct, the Legislature was without authority to create the committee before whom applicant was called upon to testify, and the committee was without authority to propound questions or to demand answers from this applicant. The House of Representatives, recognizing they had no such authority, called upon the Governor to submit such matters to them as would justify them in exercising such authority. This he declined. It must be evident then from this action of the Legislature, and the subsequent refusal of the Governor to respond to their wishes, that they had no authority to create the committee and make the investigation, and fully recognized that fact. The committee, under this view, was a body without authority to call witnesses, or to put questions and require answers from them. Their action did not form a part of the proceedings of that body and no obstruction could occur. It may be stated as a proposition incontrovertibly true, that the Legislature derives its power from the Constitution, and is dependant solely on the Constitution for its existence and authority, ¡i Both Houses of such body are but the creatures of the Constitution, and outside of the provisions of that instrument, would and could have no authorized existence. Both Houses act under delegated authority which, in a general way, is confined to legislative matters, except in a few instances where is it otherwise provided, and in no instance could it act as a judicial body unless power is expressly conferred upon it by the Constitution for that purpose. Judicial power is conferred upon another branch of the government to be exercised by it to the exclusion of other branches of the government. It would follow then that the Legislature, in matters within its jurisdiction, would have authority to protect itself against disrespectful and disorderly conduct in its presence as well as for obstructing its proceedings. Some of the books speak of this as inherent power. Had the Constitution remained silent upon the question of the power of the Legislature to punish for contempt, we might be called upon to enter the domain of such inherent power and discuss it, but we are relieved from that by the terms of the Constitution wherein it specifies how and when each branch of the Legislature may punish for contempt for such conduct. If it may be said that the Legislature would have inherent power to punish for contempt, it might also be said that the Constitution recognizes the fact and empowers that body to protect itself under the circumstances stated in article 3, section 15. That section fixes the limits of jurisdiction, at least it sought so to do by the language employed. To a certain extent, under the terms of section 15, the Legislature may be said to have judicial authority, or rather it may be said it has authority to act in a judicial capacity in ascertaining the facts and assessing the punishment therein prescribed. Whether the power is inherent or not, section 15, article 3, grants authority as well as expressly limits the extent of that authority. It is, therefore, unnecessary to discuss the question of inherent power further than is stated in that section. Such authority then can not be exercised in any instance by the Legislature unless the contempt or punishment was for a violation of something the Legislature had authority to do. There are some fundamental rules that have long since been decided, and have become so thoroughly settled in regard to matters of this sort, that they ought to be held conclusive. First, before a contempt punishment can be inflicted, the body seeking to impose the punishment must have jurisdiction of the subject matter; second, it must have jurisdiction of the person; third, it must have authority to render the particular judgment that is rendered. The correctness of the above rules is not an open question in Texas, and ought not to be debatable anywhere. One of the best considered cases involving these questions is found in an opinion by the then presiding judge of this court in Ex parte Degener, 30 Texas Crim. App., 566. The question here involves the jurisdiction of the authority seeking to inflict punishment. It has been said that jurisdiction is of two kinds, first, the power to determine the particular matter and render some judgment upon- the hearing, and, secondly, the power to render the particular judgment which was rendered. There was some conflict in the authorities for awhile upon some of these matters,, but this all seems to have faded. Many of the cases cited in support of the above proposition will be found collated in Ex parte Degener, supra. That case has been followed in quite a number of opinions by this court, a few of which will be enumerated: Ex parte Taylor, 34 Texas Crim. Rep., 591; Ex parte Kearby, 35 Texas Crim. Rep., 531; Ex parte Wilson, 39 Texas Crim. Rep., 630; Ex parte Duncan, 42 Texas Crim. Rep., 661; Ex parte Snodgrass, 43 Texas Crim. Rep., 359; Ex parte Lake, 37 Texas Crim. Rep., 656. In Ex parte Duncan, supra, it was held there must be contempt in order to justify punishment for the offense, and the facts must justify the judgment imposing such punishment. “There are three essential elements necessary to render a conviction valid. These are, that the court must have jurisdiction over the subject matter, the person of the defendant, and the authority to render the particular judgment. If either of these elements is lacking, the judgment is fatally defective, and the prisoner held under such judgment may be released on habeas corpus.” In addition to the authorities cited, supra, on these propositions, there will be found cited in the report of the Duncan case, the following cases: Ex parte Tinsley, 37 Texas Crim. Rep., 517; Ex parte Kearby and Hawkins, 35 Texas Crim. Rep., 531; Brown on Jurisdiction, sections 109 and 110; Ex parte Lake, 37 Texas Crim. Rep., 656. It w.as further held that “Jurisdiction of the person and subject matter are not alone conclusive, but the authority of the court to render the particular judgment is the subject of inquiry; and if, upon a review of the whole record, it appears that a judgment unwarranted by law was entered, the party thus placed in contempt will be released under the writ of habeas corpus. Same authorities!” Eollowing the above quotation are a great number of cases cited in the opinion in the Duncan case, supra. It has also been held that the judgment is not conclusive upon the question of the authority of the court, or the body imposing the contempt, but where the facts justify it, the court will go behind the judgment and inquire into the facts, and if .the facts are such, that ought not to justify or permit the particular judgment rendered, then the applicant will be discharged upon writ of habeas corpus. This was expressly decided in Parker v. State, 35 Texas Crim. Rep., 12; Ex parte Juneman, 28 Texas Crim. App., 486. This doctrine was reasserted in Ex parte Duncan, supra. The leading case in the United States on the question involved in this case is Kilbourn v. Thompson, 103 U. S., 168. That case has been followed in quite a number of cases, and, in our judgment, clearly settles the law in this case in favor of the applicant. It is not the purpose of this opinion to review the Kilbourn case, but it is referred to approvingly as setting forth correct principles of law applicable to the questions here involved. See 7 Am. & Eng. Ency. of Law, 62-65, and notes for cases. It would follow from what has been said that the Legislature not having power to legislate upon matters about which the investigation was had at the called session, that the action of the House creating the committee was without authority, and this being true, the committee would not have power to make the investigation, call witnesses before it, ask questions or demand answers, r If the House was not authorized to legislate upon any of the matters about which the investigation was made, it would necessarily follow that that body could not impose punishment for contempt upon the refusal of the witnesses to appear before the committee, or appearing, refuse to give testimony sought to be elicited. It would be clearly beyond the jurisdiction of the committee and of the Legislature, and, therefore, the rules above set forth would apply, that is, that body would have neither the jurisdiction of the subject matter, of the person, nor the authority- to render any judgment, much less the judgment it did render. Erom this viewpoint of this record, the applicant is entitled to his discharge. In regard to the second original proposition, it may be said, conceding the Legislature had authority to appoint the committee, and the committee had jurisdiction of the subject matter by virtue of its appointment by the legislative body, and had jurisdiction of the person of applicant by háving him before the committee, still there would be authority wanting under this record justifying them in imposing the punishment for contempt. The matters inquired about were such matters as did not require applicant to answer and could form no basis of a judgment. They suggested no violation of any law of this State, and if it did, the Legislature-was not authorized to investigate violations of law; that belonged to the judicial department; nor could applicant be required to criminate himself. They were matters not necessary in any way to aid the legislative body in reaching a conclusion on any matter submitted to it by the Governor. That body could not revise the election laws, and could not legally engage in any proceedings tending to such revision, because the Governor had refused to submit such matters to them. It was then nothing before the Legislature to which the answers of the witnesses, whatever those answers might have been, could possibly have been germane. The only purpose for which that Legislature was called was to legislate on specified subjects, v'lt was not authorized to collect data for future legislation, nor with a view of legislating upon any matter not submitted to them, and if it attempted to do so such attempt can not be termed legal proceedings of the House. Being a called session, its power was limited to the thirty days mentioned in the Constitution, and exclusively to the questions mentioned by the Governor in his proclamation calling them together, and in such communications as he might subsequently make. These constituted the only proceedings to be indulged by the Legislature. It. would hardly be contended seriously that this Legislature could sit longer than thirty days for any purpose. The Constitution had put a limit to its existence at the expiration of the thirty days. This clause, section 40, article 3, in regard to thirty days limit, is no more binding than other clauses of the same section. It will be observed then that the rule governing the power of a special session is the reverse from the rule that controls the general session with reference to legislative authority. One is general, the other is specifically restrictive and restricted. There is some intimation that the Governor, after the committee had been organized, sent a communication asking, an increase in the appropriation bill from what it had theretofore been under previous appropriations, looking to the enforcement of the law. That messáge was to the effect that he desired an increased appropriation from what had theretofore been given. By no stretch of reasoning could this matter justify the action of the committee here under discussion. Theretofore the Legislature had been appropriating less than the amount of money requested by the Governor. This request from the Governor was for an increased appropriation to the amount of $27,500. Without placing it upon the ground directly or indirectly .that the message was subsequently sent in by the Governor, that, therefore, the committee could not extend its jurisdiction to that matter, because of its original illegality, it is too clear for discussion that this did not justify the committee in its course of investigation of the July election. It was but an item of appropriation which was asked by the Governor to be enlarged from what it had theretofore been, and for the purposes of prosecuting before the courts those who were violators of the law. We hardly think it would be contended either seriously or otherwise that that matter would justify the committee in their action. I have written beyond what I had intended, and perhaps more than is necessary. For the reasons indicated, we are of opinion that the applicant is illegally restrained of his liberty. It is therefore ordered that he be discharged from custody. There are other questions presented, but the above matters discussed dispose of the case. Relator discharged. Prendergast, Judge, dissents.
HARPER, Judge (concurring).—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 anthority 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 E. Austin, and to pay therefor out of the contingent fund. Ho 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 the election 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 Hnited 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 these departments, shall exercise any poiuer properly attached to either of the others, except in the instances herein expressly permitted’’ 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 Hnited 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 Britian, 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. Erom 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 Douse 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 Bights, and are such question^ 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 Bapalje 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. .
PRENDERGAST, Judge, (dissenting.)—Some of the legal questions to be decided in this case are identical with those in the Gray case, a companion case to this, and this day decided. But there is at least one additional feature in this, that is not in the Gray ease. The main facts on the common questions are substantially the same in both cases. Yet, as there are some differences, and there are additional facts on the additional feature in this, not in the Gray case, I deem it of sufficient importance, if indeed it is not essential, to give the full facts in this case. It is, of course, to” be regretted that this statement will necessarily be quite lengthy. It was agreed by all parties and their attorneys on this hearing that the journals of this special session of the Legislature should be considered in evidence, and they were introduced in evidence. This court could, and would, take judicial notice of them and their contents in this case whether introduced or not. Every person can see them and know of their contents even though no portion should be copied herein. Under section 8, article 4 of the Constitution of this State the Governor by proclamation of June 20, 1911, convened the Thirty - second Legislature in special session on July 31, 1911, for these purposes stated therein: 1. To- make appropriations to run the government for the fiscal years beginning Sept. 1, 1911 and 1912. 2. To apportion the State into Senatorial and Representative Districts. 3. “To consider and act upon such other matters as may be presentéd by the Governor, pursuant to sec. 40, art. 3 of the Constitution of Texas.” (House Joir-mal, p. 2.) Said Legislature duly convened as called and on the first day duly organized and adjourned to the next. The first thing done by the House after formally opening and making announcements the next day, Aug. 1st, was the introduction by some of the members of this resolution: “REQUESTING THE GOVERNOR TO SUBMIT SUBJECTS FOR LEGISLATION. Mr. Maddox offered the following resolution: House Concurrent Resolution No. 1, requesting the Governor to submit certain subjects for legislation at the present called session. “Resolved by the House of Representatives, the Senate concurring, That the Governor of this State be and he is hereby requested to dsignate and present to the present Called Session of this Legislature, for the consideration of the Legislature and for legislation, the following subjects: “First—Legislation amending the election laws of this State so as to provide against illegal payment of poll taxes, and to enact such further laws as may be necessary to safeguard the ballot boxes and secure fair and honest elections without a taint of irregularity, fraud or bribery. “Second—Legislation prohibiting breweries, brewery owners and stockholders therein, saloons, saloon owners and all other persons connected, directly or indirectly, with the liquor traffic in this State, from contributing to campaign funds to influence elections, and to prohibit all persons within this State from receiving, using or disr bursing such funds as may be so contributed by the liquor traffic, its associations, subsidiaries or persons connected therewith, and to provide adequate and effective penalties for the violation of such law. “Third—The enactment of suitable legislation requiring all persons engaged in the sale of intoxicating liquor to close their places of business from seven (7) o’clock p. m. until six (6) o’clock a. m. and to keep the same closed, and to provide suitable penalties for the sale of intoxicating liquors by such persons doing business in this State in violation of such law. “Fourth—Legislation prohibiting the sale of liquor within this State in unbroken packages and quantities less than one quart, and prohibiting the same from being drunk on the premises where sold, with effective penalties for violation of such law. “Fifth—Legislation prohibiting the sale of intoxicating liquors within ten miles of any State educational institution, including the State University, that is supported in whole or in part by appropriations from the State’s general revenue, and for effective penalties for the violation of such law. “Sixth—Legislation increasing the license tax on individuals engaged in the retail or wholesale of intoxicating liquors.” This was at once referred to one of the House standing committees. On August 2d, the Governor, by special message, submitted two additional subjects of legislation. Neither of these were embraced in the resolutions above (Journal, p. 30). On August 3d the following preamble and resolution were offered by members of the House: “PROVIDING FOR INVESTIGATING COMMITTEE. Mr. Gilmore offered the following resolution: Whereas, it has been charged by the Executive Committee of the Statewide Prohibition Amendment Association, through a report made by a subcommittee of such Executive Committee, which said report was signed by the following named citizens of Texas as members of said subcommittee: Thos. H. Ball, B. F. Looney, Thomas B. Love, W. J. McDonald, Cullen F. Thomas, D. E. Garrett, R. Harper Kirby, Jack Diss, W. T. Bartholomew, T. G. Harris, William E. Hawkins, B. H. Powell, J. S. Crumpton and Richard Mays, that in the recent election held in this State on July 22, 1911, there were many fraudulent and illegal ballots cast and other methods of fraud and evasion of the election laws resorted to at said election, and other charges made concerning the purity of the ballot box; and “Whereas, Such committee charges that they have gone far enough into an investigation of such election to convince them to a moral certainty that the result of the election of July 22, 1911, does not represent the verdict of a majority of the qualified voters of the State lawfully entitled to participate in the election; and “Whereas, Such committee charges that evidence has been submitted to them which convincingly shows that at the very inception of the contest over the Statewide prohibition amendment and in preparation therefor, that the liquor interests entered into a widespread conspiracy to control the election by the use of very large numbers of poll tax receipts illegally issued, and that where sworn officers of the State, such as tax collectors, could be reached, poll tax receipts were procured directly from their offices and mailed to voters who had never applied for them, or made the necessary affidavits, although the receipts issued therefor showed upon their face that all the requisites of the law had been complied with; and “Whereas, It is further charged by said committee that in a number of counties it was the practice to have deputies, in some instances negroes, to go out and solicit the payment of poll taxes, their services being paid for by the liquor interests, which also paid for the poll tax receipts; and “Whereas, It is further charged by said committee that in one county, and in ¿me box in one section of. the State, about one hundred (100) poll tax receipts were shown to have been paid for by the local agent of the breweries, while in another county in another section of the State, it is charged that the tax collector turned over his book containing the poll tax receipts to saloon keepers, who in turn issued some seven hundred (700) such receipts, signing the name of the collector thereto, one of the saloonkeepers being a negro; and “Whereas, It is charged by said committee that in another county of the State some four hundred (400) poll tax receipts were issued and kept in a convenient safe to be used at the time of said election, and that in the same county one negro handed in three (3) poll tax receipts as his authority to vote, and that one negro, killed by a train just before said election, is shown to have had thirty (30) poll tax receipts on his "person, with blank for name of voter unfilled, but which receipts were signed by the tax collector; while it is charged that in another county a Mexican leader approached the prohibition manager and showed that he was in control of twenty (30) poll tax receipts and offered to deliver that number of Mexican votes for five dollars ($5.00) per head, which offer the prohibition manager declined, and had the Mexican leader arrested; and “Whereas, It is further charged by said committee that in one county deputies were sent out who issued large numbers of poll tax receipts, receiving in turn therefor a paper token which was cashed by the liquor dealers so that the money therefor could be returned to the State and city tax collector, and that in a number of counties such committee received ■ evidence that negroes in possession of poll tax receipts had admitted they were given to them or had been sent to them and which they had not paid, and for the issuance of which they had given no order; and “Whereas, Said committee charges that they could multiply instances of like kind and character, and other evidences of irregularity and fraud, and state that they give their assurance that the reports and ■ facts before them will be available at proper times and places; and “Whereas, Said committee states that they have inquired into, as fast asp they could, the Mexican vote, and that the law and other efforts will not reach a very large number of this class of voters voting, and that the worst condition of this character found expression in the returns from Zapata County, a county of this State; and “Whereas, Said committee charges that their reports show a goodly number of boxes in the rural precincts in the wet districts where the failure of a law to require exemption certificates, as in large cities, gave fraudulent opportunities for voting; and “Whereas, Said committee further charges that conservatively more than eighty (80) percent of the negro vote of the State was controlled by the liquor traffic by corrupting many, by the basest appeals to their fears and prejudices, by threats of their reinslavement and disfranchisement, by money and whisky and the payment of their poll taxes; and “Whereas, Said committee further charges that judicial investigations just before the election were hampered in every way by those indirectly interested in the preservation of the liquor traffic or their hirelings, but disclosed in a number of sections of the State, notably Austin, its capital city, that gross irregularities and violations of the law had been committed in the matter of issuance and payment of poll taxes, and that these investigations were everywhere hindered and delayed by methods that could not be condemned in terms too severe, and that in nearly every instance saloons were directly connected with such methods; and “Whereas, The aforesaid committee in its published report charges that the conditions reported to such committee and the facts submitted to them imperatively demand that the Legislature should at once institute a most rigid investigation and that .they appeal to that body to use all the agencies at its command for the purpose of securing testimony and facts in every section of Texas where they can be had looking into the matter of fraudulent voting, poll tax paying, the use of money and the connection of the liquor traffic therewith; and “Whereas, Said committee charges that the facts that will be available to a legislative committee will amply warrant the expenditure of any sum that is appropriated for the purpose alone of providing as fast as possible against the recurrence of such conditions that have made possible the official returns upon the constitutional amendment, by enabling the lawmaking body to throw further safeguards around the conduct of all future elections; and “Whereas, Said committee charges that the will of the people in the matter of amending their State Constitution has been subverted and overthrown by the shameless use of an unlimited corruption fund contributed by the liqiior interests; all of which foregoing charges and others connected therewith are shown in a copy of the report of said committee given to the press, which copy is herewith attached and marked 'exhibit A;’ and “Whereas, the preservation of free government and of the right of the people to control their governmental affairs depends upon maintaining and safeguarding the purity and freedom and honesty of the ballot and the uncorrupted independence of the voters—in short, upon a patriotic and uncorrupted ballot properly safeguarded so as to secure it against any improper influence and to insure that it will be counted as cast by the voter; and “"Whereas, The laws of this State regulating elections have been recently enacted and changed many times during recent years, and are in need of revision and amendment, as has been generally admitted by many eminent citizens familiar with such laws and their operation; and fiWhereas, The conduct of the election held on the 33d of July, 1911, will, if investigated, place this and future Legislatures of Texas in possession of information which will be very valuable for the purpose of promoting the formulation and passage of such laws as will properly safeguard the purity, freedom, and honesty of the ballot and insure that it will be counted as cast and returns of election made in accordance with the ballots as cast; and “"Whereas, It is charged and believed by a great number of citizens, and has been published in many newspapers throughout the State, that large sums of money were used to influence the result of the election held on July 33, 1911, and the manner in which such money was used and the large amount alleged to have been used, has been challenged and criticised as having been improper, unlawful, and against sound public policy; which charges, if true, demand further legislation that will prohibit the corruption of the ballot; and “Whereas, Section 4 of article 6 of the Constitution of this State provides: Tn all elections by the people the vote shall be by ballot, and the Legislature shall provide for the numbering of the tickets, and make such other regulations as may be necessary to detect and punish fraud, and preserve the purity of the ballot box-;’ and “Whereas, It appears that the laws passed in pursuance with this constitutional provision have, if the charges heretofore referred to are true, proven inadequate to protect the purity of the ballot box; and “"Whereas, It becomes • of vital importance to this or any subsequent Legislature, which may legislate for the purpose of carrying out this constitutional provision, that the methods used to evade and violate the laws and destroy the purity of the ballot box be known in order that adequate laws preserving the purity of the ballot box be enacted by this or a subsequent Legislature, and the evidence of the violations and evasions of the laws preserved for the assistance of this or any subsequent Legislature which desires to legislate to protect the purity of the ballot box; and “Whereas, Unless an investigation be now made, much of the testimony and evidence of fraud, corruption and evasion will be destroyed qnd become inaccessible. Therefore, be it “Kesolved by the House of Eepresentatives of the Thirty-Second Legislature that the Speaker of the House be authorized, and that he do immediately upon the passage of this resolution appoint a committee of nine (9) members of the House of Eepresentatives, at least six (6) of whom shall be favorable to the adoption of the State-wide prohibition amendment recently voted upon on July 22, 1911, which committee shall investigate and determine and report to the House: “(1) As to whether or not there were any poll taxes illegally paid or receipts or exemption certificates illegally issued within this State, and if paid, or issued, the method and manner by which the same were paid or issued, and by whom issued or paid, and for and to whom paid or issued, and by whom the money was furnished for such purpose. “(2) All violations and evasions of the election laws of this State, and the method and manner of such violations and evasions, and by whom the same were made and instigated. “(3)Whether or not money was corruptly and unlawfully used in any manner by anyone to influence the result of the election held on July 22, 1911, by whom same was used, how the same was used, and by whom, to whom and how same was furnished. “(1) Also to determine, if any, the amount of money used to influence the result of' said election, and the amount expended in such election by any person, corporation, association of persons, or by any organization maintaining a State, county, or precinct headquarters or organization, and by whom the same was used and how the same was used, and by whom, to whom and how the same was furnished and used. “(5) To investigate and determine whether or not a conspiracy or agreement was entered into by and between any persons or