The Legislature has power to compel the attendance of witnesses and the production of books and papers in order that it may perform its constitutional functions in enacting laws to correct real or apprehended dangers. It may delegate this power to a legislative committee by resolution. (Briggs v. Mackellar, 2 Abb. Pr. 30; Burnham v. Morrissey, 14 Gray [Mass.], 226;People v. Learned, 5 Hun, 626; People ex rel. McDonald v.Keeler, 99 N.Y. 463; McGrain v. Daugherty, 273 U.S. 135,175; Sinclair v. United States, 279 U.S. 263.)
In authorizing such an investigation the Legislature is not passing a law by bill, as statutes are enacted, subject to the approval of the Governor. (N.Y. Const. art. III, § 14; art. IV, § 9.) It is exercising an incident to the sovereign power of making laws and initiating legislation and in the exercise thereof it may not be subjected to restraint within the field as thus defined *Page 271 except so far as the Constitution of the United States or the State of New York limits its powers and jurisdiction. Particularly it may investigate the conduct of public officials in view to some legislative action in regard to them. As this court said in Wilckens v. Willet (1 Keyes, 521, 525): "Its exercise" of the power to investigate "is often indispensable to the great end of enlightened, judicious and wholesome legislation." It is the duty of the Legislature to study governmental conditions and prepare legislation in regard thereto.
The purpose of such legislative investigations is not to detect crime, for the detection of crime is not a legislative function; nor to conduct fishing expeditions into private papers and affairs in the hope that something degrading may be pulled up. (Sinclair v. United States, supra.) Criminal acts may, however, be disclosed by the witnesses. The purpose is to enable the Legislature to exercise its law-making power under the Constitution. If the questions put to the witness are pertinent to the matter under investigation the witness must answer unless he in good faith asserts the constitutional privilege against a real danger of self-incrimination. "No person shall be * * * compelled in any criminal case to be a witness against himself." (N.Y. Const. art. I, § 6.)
The constitutional privilege when it otherwise exists may be met only if the witness is given it immunity, not from self-incrimination in the broadest sense, but from criminal prosecution in the courts of this State "for or on account of any transaction, matter or thing, concerning which he may testify, or produce evidence." (Brown v. Walker, 161 U.S. 591.) A provision that the evidence given by the witness shall not be received against him does not afford complete protection for it leaves the door open to his successful prosecution without the use of such evidence. (Counselman v. Hitchcock,142 U.S. 547.) This court has adopted the Federal rule. (People ex rel.Taylor v. Forbes, 143 N.Y. 219, 229; *Page 272 People ex rel. Lewisohn v. O'Brien, 176 N.Y. 253, overruling its earlier decision in People v. Hackley, 24 N.Y. 74.)
The resort to immunity statutes seems to have proved itself a valuable and satisfactory aid in the ascertainment of facts in many cases. In New York such statutes exist in numbers, varying in language but indicating a general legislative purpose to grant immunity to a helpful criminal whenever public policy so dictates. They are entitled to the fullest faith and credit that a fair construction of their language permits. Else they become pitfalls for the unwary.
Under Penal Law, section 381, a person who testifies on any "trial, hearing, proceeding or investigation" to the giving of a bribe which has been accepted shall not be liable to prosecution for that bribery. The word "investigation" as used in this section was construed as including a legislative investigation, and a legislative investigation was in effect held to be a prosecution for receiving the bribe, under Const. art. XIII, § 3. (People v. Sharp, 107 N.Y. 427.) But the immunity is limited and not general. It covers only protection for the bribery testified to. The same word is used Penal Law, section 584, which gives complete immunity to one who testifies upon "any investigation, proceeding or trial" for a violation of any of the provisions of Penal Law, article 54, entitled "Conspiracy." I fail to see any substantial reason for extending the meaning of the word "investigation" in relation to bribery as was done inPeople v. Sharp (supra) and limiting it to judicial proceedings in relation to conspiracy as in People v. BryantCo. (114 Misc. Rep. 133). Varied phraseology should not lead to subtle distinctions in meaning when the essential purpose is the same. Grammar should yield to legal intention. To effectuate the general legislative purpose, the word should be given as wide a construction as is necessary to protect the witness in his disclosures. Thus it has been held that the examination of a witness before *Page 273 a grand jury is a "proceeding" under the anti-trust law. (Hale v. Henkel, 201 U.S. 43.) The immunity here granted covers all offenses created by the article relating to conspiracies, including conspiracies to bribe. Other immunity statutes apply in greater or less degree to other crimes or small groups of crimes. (E.g., Penal Law, §§ 166, 395, 996, 1472, 1787, 2097; Public Service Law, § 20; Banking Law, § 370; Ins. Law, § 65.)
The immunity granted is not general in language and may not be in effect, if we are to give meticulous heed to the decisions of this court and the Supreme Court of the United States. It does not cover the offer of a bribe to a public officer which is not accepted. (Penal Law, § 379.) Conceivably other crimes under the State law may be revealed by the testimony of the witness which are not covered by the numerous statutory immunities. Although the immunity need not be so broad as to cover the faintest trace of possible criminality (Brown v. Walker, supra), when we are dealing with a constitutional privilege, in the absence of a statute authorizing a grant of immunity in all criminal cases, we should not hastily brush away its protection with the speculation that it will scarcely be needed. In the investigation before us it would seem that the opportunities of prosecution for self-disclosed offenses, where statutory immunity is not granted, while rare may not be so illusory as to constitute no "real or probable danger" to the witness. (People v. Priori, 164 N.Y. 459; Mason v. United States, 244 U.S. 362.)
We must, therefore, consider the effect of the joint resolution under which the legislative committee is functioning. A legislative bill which governs all persons within the jurisdiction of the enacting power must be presented to the Governor before it becomes a law. (N.Y. Const. art. IV, § 9.) Particularly is this true of appropriation bills and without an appropriation an investigation committee would scarcely be able to function. *Page 274 (N.Y. Const. art. III, § 21.) A joint resolution need not be so presented if it relates to legislative activities auxiliary to the law-making power. It has been said that the Governor is a part of the law-making power (People v. Bowen, 21 N.Y. 517), but he acts in an executive capacity in passing on bills. "The legislative power of this State shall be vested in the Senate and Assembly." (N.Y. Const. art. III, § 1.) It is vested therein entirely, subject only to constitutional limitations. (Bank ofChenango v. Brown, 26 N.Y. 467, 469; People ex rel. McDonald v. Keeler, supra, p. 479.) Each house acts free from executive control in making its own rules and in judging of the elections, returns and qualifications of its own members. (N.Y. Const. art. III, § 10.)
The power of the joint committee to grant immunity is given in the broadest terms, but it is given by a joint resolution and not by statute, and it is contended that it is beyond the legislative power to grant immunity by joint resolution to witnesses summoned before it. The answer hangs on the reasonable extent of the unquestioned right of the Legislature to compel witnesses to attend and give evidence for legislative purposes. What may they do with the witness if he proves recalcitrant? They may do all that is auxiliary to or implied in the legislative power. They may punish for contempt. "The power to punish for disobedience and contempt in refusing to attend is a necessary incident to the power to require and compel attendance." (People ex rel.McDonald v. Keeler, supra, p. 483.) But the witness may assert his constitutional privilege. This is a right which the vilest may claim for his protection but only so long as he acts in good faith in the face of danger of a criminal prosecution in this State. (Matter of Levy, 255 N.Y. 223, 225.) May it be met by a grant of immunity from the committee acting under the terms of the joint resolution?
The grant of immunity is a legislative function. The *Page 275 Governor may pardon after conviction (N.Y. Const. art. IV, § 5), but he may not grant immunity from criminal prosecution nor may the courts. Amnesty is the determination of the legislative power that the public welfare requires the witness to speak. (Burdick v. United States, 236 U.S. 79; Biddle v. Perovich,274 U.S. 480.) Full immunity has been granted to witnesses in proceedings under the General Business Law, §§ 345, 359) and in many other cases. Such immunity has been granted by statute because the proceedings are not wholly legislative in their character. They may be administrative or judicial. When the Legislature acts in its own concerns, in a strictly legislative inquiry, no provision of the State or Federal Constitution is indicated which necessarily stands in the way of the execution of its purpose to get at the facts for its future guidance by granting full and complete immunity to those who testify before it. When the witness no longer needs the shield of constitutional privilege to protect himself from criminal prosecution by the State, he may not use it to protect others. The State must be served. The public has a claim to every man's evidence unless the witness is specially exempted and protected by law. (See 4 Wigmore on Evidence, § 2192.) The Legislature is supreme in its own field. It may inquire, although it may not enact without executive approval unless over executive veto. The immunity granted is as broad as the privilege secured.
On narrower grounds the grant of immunity may serve a purpose. If information should be given under the legislative pledge of immunity which might lead to a possible prosecution of the witness for an offense where special immunity is not granted by statute, the danger of such a prosecution as a practical proposition would be "so unsubstantial and remote" that it would not be necessary to have a statute to provide against it. (Jack v. Kansas, 199 U.S. 372; Hale v. Henkel, supra.) Good faith and comity on the part of prosecutors should *Page 276 be presumed and the joint resolution is at least a gesture of protection which should not be ineffectual but we do not place our decision on that ground. Good faith and comity, potent as they may be in fact, may not afford absolute protection in law. (The Whisky Cases, 99 U.S. 594.)
The Legislature should not be deprived of its necessary and appropriate attributes by exacting limitations upon the meaning of language. A witness may use his privilege as a shield to protect himself. When in reason it is no longer needed for that purpose, he should not be permitted to use it as a dam to block the flow of legislative inquiry. At least, the range of inquiry should be more widely extended than the prevailing opinion would permit and the refusal to answer the questions asked should be held contumacious and not privileged.
The order should be affirmed.
LEHMAN, KELLOGG, O'BRIEN and HUBBS, JJ., concur with CARDOZO, Ch. J.; CRANE, J., concurs in separate opinion; POUND, J., dissents in part and writes for affirmance.
Ordered accordingly. *Page 277