and report the facts in reference to said char

"Exhibit B. ges; and further

"77th General Assembly, Regular Session. S. “Resolved, that said committee, or a ma

R. No. 30. By Mr. Espy. jority thereof, be, and it hereby is, authorized to employ one or more stenographers,

"Senate Resolution. one or more expert accountants, one or more "Relative to the Committee Appointed to Incounsel, and such other assistants as it may vestigate Charges of Corruption Existing deem necessary for the proper conduct of the in the Government of the City of Cincininvestigation herein directed; and shall have nati and the County of Hamilton. the power to compel the production before it

"Whereas, by resolution No. 23, adopted by of any books and records, letters, or documen

the Senate of Ohio, on the seventh day of tary evidence of any character, which, in the

February, 1906, a committee, consisting of judgment of the committee, pertains to any

Messrs. Drake, Schmidt, Espy, Sites and matters or things under investigation, and

Meck, was appointed to investigate charges wherever found; and also to compel the at

that certain officials of Cincinnati and Hamiltendance of any witnesses. Said committee

ton county and the commissioners of the may hold its meetings in any place designat

waterworks of said city have made certain ed by it in the state of Ohio. Any member

collusive and illegal contracts and have unlawor members of the committee, and its counsel

fully misapplied and misused the public funds, or other assistants, shall have access at all

and have otherwise misused their official positimes during the life of the committee to all

tions; and that certain persons, corporabooks, records, papers, and other documents

tions and political committees, not officeholdon file in the office of the various departments

ers, have unlawfully conspired with or inof said county and city; said committee, or

fluenced said officials, or collected certain a majority thereof, shall exercise and enjoy

sums of money therefrom, illegally or for an all the powers, privileges and authority of

illegal purpose, or both, and have conspired a legislative committee, with full power to

to corrupt the ballot, and that there have enforce its directions and mandates as pro

been other forins of misgovernment in said vided for by the laws of the state of Ohio

city and county, and to investigate all matgoverning such matters; and further

ters and things in any way pertaining to said “Resolved, that in order to secure a full

charges, with full power to prosecute its indisclosure from all witnesses who may ap

quiry in any and every direction in its judg. pear before said committee of all facts and

ment proper and necessary to enable it to obthings within their knowledge, it is the sense

tain and report the facts in reference to said of the Senate that no witness should be pros

charges; ecuted, indicted, held liable, or proceeded

"Whereas, the time within which the said against in any other action or proceeding

committee was to make its report to the Senfor any testimony given by him before said

ate, to the end that proper remedial legislacommittee.

tion should be enacted, was not limited by "Resolved, that said committee make report

said resolution; of its proceedings, with full transcript of

"Whereas, it appears to be impracticable testimony taken by it, together with its find

for said committee to complete the investigaings, in writing, to the Senate, with such

tion and to make the report during the presrecommendations for further legislation or

ent session of the General Assembly. amendments to existing legislation as the

“Resolved, that said committee, or a madisclosures made to said committee may war

jority thereof, be and it is hereby directed rant, and recommend such further legislation

to continue the investigation under said resogenerally on the subjects investigated by

lution, with all the power and authority said committee as said committee, or a major- thereby conferred, after the adjournment of ity thereof, may agree upon, as the disclos

the present session of the General Assembly, ures made to said committee may warrant;

and to submit to the Senate, not later than and further

January 15, 1908, a full report of the proceed“Resolved, that the expenses incurred by

ings, together with such recommendations as this committee be paid out of the contingent

in its judgment may be necessary and proper fund of the Senate; said expenses to be paid

on the facts and conditions by it discovered upon proper vouchers signed by the chairman

and ascertained for the enactment of proper of this committee.

remedial legislation. "77th General Assembly. Regular Session. "I, A. P. Sandles, clerk of the Ohio Senate,

"I, A. P. Sandles, clerk of the Ohio State do hereby certify that the above and foregoSenate, of the 77th General Assembly, duly ing is a true and correct copy of Senate Resoelected and qualified, do hereby certify that lution No. 30, as adopted by the Senate on the above and foregoing is a true and correct the twenty-sixth day of March, A. D. 1906, copy of Senate Resolution No. 23, passed as appears on the journal of the Senate of February 7, A. D. 1906.

that day. "In witness whereof, I hereunto set my "In witness whereof, I have hereunto set hand, this thirteenth day of February, 1906. my hand this thirty-first day of March, 1906. "A. P. Sandles, Senate Clerk,"

"A. P. Sandles, Senate Clerk."

"Exhibit C.

"Cincinnati, O., April 19, 1906. “The Select Committee of the Ohio Senate

to The Robertson Realty Co.: To rent of second floor, Lincoln Club

building, Eighth and Race streets, from February 19, 1906, to April 19, 1906, two months, at $125.00 per month

$250 00 To electric light for March, etc.

12 50 To repairs to light, per Devere Electric Co. ....

075 To spring latch and keys, C. S. Siewers 2 05

$265 30 “State of Ohio, Hamilton County, ss. :

"M. M. Robertson, being duly sworn, on oath says that the above account for rent, light and repairs as therein stated, against the Select Committee of the Ohio Senate, is in all respects just and true as he verily believes, and that he is president of the Robertson Realty Co.

"M. M. Robertson. “Sworn to before me and subscribed in my presence this twentieth day of April, 1906. “[Seal.]

E. 0. Hunt, "Notary Public, Hamilton County, 0."

"Exhibit D. "No. 508.

“Senate Chamber. “77th General Assembly, Regular Session.

"Columbus, O., April 20, 1906. “ To the Auditor of State:

“In compliance with provisions of Senate Resolution No. 23, I hereby certify that the Robertson Realty Company is entitled to the sum of two hundred and sixty-five and 30100 dollars for rent, light and repairs as per annexed account, to be paid from appropriation for Cincinnati investigating committee.

"$265.30. (Payable only on endorsement of payee.)

"John C. Drake, "Chairman of Select Committee of


no money can lawfully be drawn out of the treasury except upon his warrant; and it is required that "he shall not draw any warrant on the Treasurer for any claim unless he finds the same legal, and that there is money in the treasury which has been duly appropriated to pay the same.” Rev. St. 1906, SS 153, 154. The only appropriation for such purpose which is available at present, is an appropriation for "contingent fund of the Senate for the use of select investigating committees." 98 Ohio Laws, p. 42. This is not an appropriation specifically for this committee; but it is clearly an appropriation for the contingent fund of the Senate for the use of any select investigating committee or committees. Presumably it is appropriated for the use of any select investigating committee which has been legally constituted for a legal purpose.

The Auditor of State declines to issue his warrant for the payment of expenses of this committee, claiming that the Senate exceeded its constitutional powers in appointing the committee.

The broad claim is made for the relator that the right to gather information in its own way, for the purposes of legislation, inheres in the Senate as a legislative body; and that it is "a right fundamental to legislation, and not denied by the Constitution." But whatever inherent power the General Assembly in its entirety may possess by virtue of its being the repository of the whole legislative power of the state, we do not think that it follows as a conclusion that one of its constituent parts must likewise possess the same inherent powers. It may be conceded that either branch of the General Assembly has all such powers as are necessarily implied in the express grant of powers to it by the Constitution; but under the system of distribution of powers in the American Constitutions, and especially under the Constitution of Ohio, which is explicit in excluding from the legislative department the exercise of any power which is not delegated in the Constitution (article 1, $ 20), the authority of a single branch of the Legislature to act separately must be found in express terms or by necessary implication in the Constitution. It is clear that "the legislative power," whatever may be the extent of that power which is conferred upon the General Assembly, is not expressly delegated to a part of the General Assembly. Nor is it impliedly so delegated, The Constituțion explicitly grants and defines the separate powers of each branch of the General Assembly; and all powers which are not delegated to each house are expressly reserved to the people. The powers of each house are not general, and subject only to limitation in the Const tution, as is the legislative power of the entire General Assembly; but they are specific or enumerated powers. As to these, the provisions of the Constitution are grants of power limited by the reservations of article 1, $ 20. We therefore must look to the enumer

The respondent waived the issuing and service of process and specifically waived the issuing of an alternative writ of mandamus herein, and demurred to the petition on the ground that it does not state facts sufficient to constitute a cause of action or to entitle the relator to any relief whatsoever against the respondent.

Jacob Shroder and Butler & Carlisle, for relator. Wade H. Ellis, Atty. Gen., Lawrence Maxwell, Jr., Ernst, Cassatt & McDougall, Miller Outcalt, and Frank F. Dinsmore, for respondent.

DAVIS, J. (after stating the facts). This case fairly involves an issue as to the legal existence of the select investigating committee which was appointed by a resolution of the Senate. The Auditor of State is made the chief accounting officer of the state and

ated powers alone to determine this question; Therefore, looking into the Constitution for and it were just as sane to claim that either the authority claimed here, what do we find? branch of the Legislature might, by itself, The whole legislative power of the state, enact a law, as to claim that by "inherent whatever that may include, is vested in the power" it could independently exercise any General Assembly, consisting of the Senate legislative power outside of those specifically and House of Representatives (article 2, delegated in the Constitution.

§ 1); and it is provided that the General Precedents and usages drawn from Eng. Assembly shall not exercise any judicial lish parliamentary practice cannot safely power which is not expressly conferred in guide us; because, as has been often pointed the Constitution (article 2, § 32). Assumout, the Parliament was originally a high ing that the power which is claimed here is court of judicature and both houses thereof conferred by these sections of the Constitustill retain many of their ancient judicial func tion upon the General Assembly as a whole, tions; and Parliament is in no manner re does it follow that the same power is constrained by the limitations of a written ferred upon each of its constituent parts? Constitution. Nor should the remarks or Certainly not. A substantive legislative act, rulings of courts in cases where the ques

that is, one which is not merely a matter of tions now under discussion were not dis- | procedure, must be performed by the General tinctly in issue and carefully considered, be Assembly and not by some of its constituent followed without caution, and especially so

parts. For that reason the Constitution where the constitutional and statutory pro- proceeds to define the powers of each branch visions vary from those of this state. We of the General Assembly. These provisions may say, however, that the doctrine of in need not be quoted here. They are found in herent powers, as laid down in Anderson

article 2, $$ 6-9, 14, 15, 17, and 23. Here, and v. Dunn, 6 Wheat. (U. S.) 204, 5 L. Ed. 242, here only, are found the powers granted to and followed many times in this country, the Senate or House acting separately. The has been very much weakened if not entire power of seeking information for general ly overturned by the principles established | legislative purposes is not found here, and in Kilbourn v. Thompson, 103 U. S. 168, 26 it is not implied unless it be necessary to L. Ed. 377. The latter case, in a remark the proper exercise of the special jurisdicable opinion by Mr. Justice Miller, estab tion which is expressly granted to either lished the following propositions from which branch of the General Assembly, as, for exthe judgment in that case was reached: (1) ample, the judging of the election, returns The powers of either house of Congress must and qualifications of its own members, the be found in some express grant in the Con expulsion of a member, etc. But in section stitution, or be such as are necessary to 8 of article 2, we have, as we construe it, carry into effect such powers as are express a positive negation of the powers which are ly granted. (2) That the theory of inher claimed for a single branch of the General ent powers announced in Anderson v. Dunn, Assembly in this case. That section is as supra, is unsound and should be rejected, follows: "Each house, except as otherwise and (3) "that the resolution of the House provided in this Constitution, shall choose of Representatives authorizing the investi its own officers, may determine its own gation was in excess of the power conferred rules of proceeding, punish its members for on that body by the Constitution.” That disorderly conduct; and, with the concursuch is the effect of Kilbourn v. Thompson, rence of two-thirds, expel a member, but was recognized by this court in Ex parte not the second time for the same cause; and Dalton, 44 Ohio St. 142, 5 N. E. 136, 58 Am. shall have all other powers, necessary to Rep. 800, in the opinion by Owen, C. J., at provide for its own safety, and the undispage 151 of 44 Ohio St., page 138 of 5 N. E. turbed transaction of its business." The (58 Am. Rep. 800). It is true that all of last clause of this section restricts the phrase these cases involved the question of the pow "all other powers" to such powers as are er of a legislative body to punish for con necessary to secure the safety of each house tempt, and it is also true that the Supreme and the peaceable transaction of its business, Court of the United States in Kilbourn v. thereby excluding from the grant all powers Thompson expressly declined to pass upon which are not included in the class named. the existence or nonexistence of a power in The familiar maxim of interpretation, "Exeither house of Congress in aid of legislation, pressio unius est exclusio alterius," applies because it was not necessary to a decision here; for logically the express grant of cerof the case; but it nevertheless remains true tain powers and silence as to others is necas the doctrine of that case that any power essarily a withholding of those not named. It claimed by Congress, or either branch of seems to us that this construction of section it, must be found in the Constitution or 8 of article 2, of the present Constitution, is necessarily implied from it. The same prin very much strengthened by the variance ciple must apply to the General Assembly which is disclosed by comparison with secof Ohio and its constituent branches, because tion 11 of article 1 of the Constitution of all powers not delegated in the Constitu 1802. The last-named section is substantialtion of Ohio, remain with the people. Arti ly the same as the one now in force, except cle 1, § 20.

in the last clause which is as follows: "and

shall have all other powers necessary for a branch of the Legislature of a free and independent state."

It is certain that if the doctrine of inherent powers of legislative bodies ever had any existence under a constitutional government it was recognized and granted in this broad language of our former Constitution, and that it was not included in the grants of the present Constitution, but without attempting to define the extent of powers conferred by this clause of the Constitution of 1802, it is obvious to the most casual reader that it is much broader than the grant of power in the present Constitution. It is, inconceivable that a convention called "to revise, amend or change the Constitution of this state" should not have noticed the difference in the language of the two Constitutions and should not have appreciated the significance of the change. The conclusion would, therefore, seem to be irresistible that the framers of the Constitution designedly narrowed the grant of powers to each house of the General Assembly to those which are expressly mentioned. But it is said that even if it be so that a single branch of the General Assembly could not by itself constitutionally appoint an investigating committee for purposes such as proposed here, it is nevertheless authorized to do so by an act of the whole General Assembly and that this committee was expressly appointed by the Senate under and by virtue of sections 50 to 55, inclusive, of the Revised Statutes of Ohio of 1906. IC a single branch of the General Assembly has no constitutional power to appoint this committee, it must be obvious that the whole Legislature cannot authorize it to do so. The Constitution is above the Legislature, and the legislative power which may be delegated to the General Assembly cannot be redelegated to some other body.

We do not, however, accept the construction of the statute which is contended for by the relator. The sections 50 to 55, inclusive, of the Revised Statutes of 1906, may be found as originally enacted April 3, 1872, in 69 Ohio Laws, p. 61, where the act is entitled “An act to authorize committees of the General Assembly to compel the attendance of witnesses, and for other purposes." From the title of the act and from its purview, it is apparent that the thought of authorizing the appointment of standing or select committees by the General Assembly itself or by a single branch thereof was not in the mind of the Legislature; but that, assuming them to have been already appointed (and nobody ever questioned the right of either branch of the General Assembly to appoint such committees in regard to matters over which such house has express authority in the Constitution) the General Assembly proceeds to provide for their greater efficiency in the discharge of their functions, by providing a mode and authority for compelling

the attendance of witnesses, the punishment for contempt, etc. We are entirely unabló to see how the construction of these sections of the Revised Statutes as contended for by the relator can be fairly put upon them; and if they could be so construed, then, entertaining the views which we have already expressed as to the constitutional powers of a single branch of the General Assembly, we would feel compelled to declare this legislation to be unconstitutional. We prefer a coustruction which would allow the statute to stand with the Constitution, by applying it only to matters or procedure by committees which have been otherwise duly and constitutionally appointed.

It was suggested in argument that the appropriation (98 Ohio Laws, p. 42) by the con. current action of both houses of the General Assembly is a ratification of the Senate resolution. It is, perhaps, a sufficient answer to this to recall once more the indefinite charac. ter of the appropriation. It is not a definite appropriation for the use of the committee appointed by the Senate resolution, but for the use of "committees." Nor can it be said that the making of an appropriation to the Senate contingent fund for a stated purpose is in the nature of a bill authorizing the committee; because it does not profess to authorize the committee or ratify the resolution of the Senate, and because the resolution, being void under the Constitution, it could not be ratified.

In behalf of the respondent it has been argued with much force and keen analysis that upon the face of the Senate resolution the scope and purpose of the inquiry is an exercise of judicial power, which is expressly forbidden by article 2, § 32, of the Constitution, and therefore that it is beyond the power of the General Assembly. It is not necessary to decide this question in this case and therefore we do not pass upon it. People ex rel. v. Keeler, 99 N. Y. 463, 2 N. E. 615, 52 Am. Rep. 49, has been vigorously pressed upon our attention, by counsel for the relator, as decisive of this case; but we do not regard it as controlling or even persuasive, for several reasons, the chief of which are: First, that the Constitution of the state of New York contains no such distinct distribution of powers as is found in the Constitution of this state; and, second, that the court in that case expressly held that certain powers in their nature judicial belong to the Legislature of the state of New York, and that therefore a statute is not necessarily void which involves action on the part of either house which is in its nature judicial. Such a decision could not have been made under the provisions of the Constitution of Ohio to which we have referred, especially article 2, 8 32.

The demurrer to the petition is sustained and the petition dismissed.

SHAUCK, C. J., and PRICE and SUM. MERS, JJ., concur. CREW and SPEAR, JJ, dissent

(222 111. 592) DRENNEN v. PEOPLE ex rel. PRICE, Coun

ty Treasurer. (Supreme Court of Illinois. Oct. 23, 1906.) 1. MUNICIPAL CORPORATIONS SPECIAL ASSESSMENTS-FILING PUBLISHED LIST.

The filing of the published list of delinquent lands with the certificate of the publisher in the “office of the county clerk and ex officio clerk of the county court of suid county," is not in compliance with the statute requiring it to be filed as part of the records of the county court. 2. EVIDENCE-PRESUMPTIONS-OFFICIAL ACTS.

In such case, it cannot be presumed, as the law requires the list to be filed as a part of the records of the county court, that the clerk did his duty and filed it in the office of the clerk of the county court.

[Ed. Note.-For cases in point, see vol. 20, Cent. Dig. Evidence, $ 105.] 3. MUNICIPAL CORPORATIONS - ASSESSMENT PROCEEDINGS-CURING DEFECTS.

Where the records in a special assessment proceeding show that the published delinquent list was filed in the office of the county clerk and ex officio clerk of the county court of the county, in attempted compliance with the statute requiring it to be filed as part of the records of the county court, that its due publication was sworn to before the clerk, who signed his name to the jurat as clerk of the county court, cannot aid the defert. 4. SAMO-NOTICE OF COLLECTOR SUFFICIENCY.

A statement in the notice of the collector preceding the delinquent list that application for judgment will be made for the taxes for certain specified years and previous years, is not in compliance with the statute requiring the advertise ants to contain a list of the delinquent lots on which the taxes remain due and unpaid, and the year or years for which they are due.

Error to Lake County Court; D. L. Jones, Judge.

Special assessment proceedings by the people, on relation of Lewis C. Price, county treasurer, against Michael

against Michael R. Drennen. From a judgment and order of sale entered by default against certain property for a special tax, the defendant brings error. Reversed.

George W. Wilbur, for plaintiff in error. Leslie P. Hanna, State's Atty., and Smoot & Eyer, for defendant in error.

county clerk and ex officio clerk of the county court of said county." This is not a compliance with the statute requiring it to be filed “as a part of the records of said court."

It is contended by defendant in error that, as the law required the list to be filed as a part of the records of the county court, it must be presumed that the clerk did his duty and filed it in the office of the clerk of the county court. We think no such presumption can be indulged in the state of this record. If the recital was that the certificate was filed in the office of the county clerk, with the addition of no other words, it would clearly not be a compliance with the statute. The words “and ex officio clerk of the county court," immediately following "county clerk," leave it very uncertain as to where the list was filed. Whether it was filed in the office of the county clerk, who is also ex officio clerk of the county court, or whether it was filed in the office of the county clerk and in the office of the ex officio clerk of the county court, is by no means clear. In McChesney v. People, 174 Ill. 46, 50 N. E. 1110, it was held that the act requiring the list to be filed as a part of the records of the county court is mandatory and essential in order to give the court jurisdiction. In that case it was said: “The offices [of county clerk and clerk of the county court] are separate and distinct, although by the statute they are filled by the same person. In the different offices he has charge of two different and separate sets of records pertaining to different jurisdictions. The records in the office of the county clerk are not records of the county court, and filing a paper in that office does not make it a part of the records of that court.” The original paper containing the delinquent list has been certified up to us, and the file-mark thereon is: “Filed May 31, /04.-A. C. Hendee, clerk." The fact that its due publication was sworn to be fore the clerk, who signed his name to the jurat "A. L. Hendee, clerk of the county court,” cannot, as contended by the defendant in error, aid the defect. McChesney v. People, supra, was approved and followed in Glos V. Woodard, 202 Ill. 480, 67 N. E. 3; Nowlin v. People, 216 Ill. 543, 75 N. E. 200, and Glos v. Hanford, 212 Ill. 261, 72 N. E. 439.

It is next objected that the published delinquent list was defective in not complying with the statute requiring the publication of the year or years for which the delinquent taxes are due. On the first page of the paper containing the delinquent list, and preceding the first column of said list, is the notice of the collector that he would apply to the county .court of Lake county, to the June term, 1904, "for judgment against the lands and lots mentioned and described in Che following list of delinquent lands and lots, for the taxes, special taxes, back taxes. personal taxes, special assessments, interest,

FARMER, J. This is a writ of error to the county court of Lake county to reverse a judgment and order of sale entered by default in that court against certain property in Highland Park for a special tax for the construction of a sidewalk.

It is first objected that the printed list of delinquent lands and lots, with the certificate, under oath, of the publisher as to due publication as required by law, and which the law requires to be presented by the collector to the county court when judgment is prayed, and a copy thereof filed as a part of the records of said court, was not filed with the clerk of the county court, nor as a part of the records of said court. The record shows it was "filed in the office of the

« ForrigeFortsett »