The exigencies of the situation confronting us in this case; the brief time remaining of the Special Session of the Legislature whose action is in question; the imperative need for a decision of the case before adjournment of that body, if they be benefited or guided by our conclusions, have caused us to review, possibly without that mature deliberation which ought to be exercised the various authorities cited by both sides in this controversy as well as many others which have been examined in an effort to solve the questions. All the authorities pertinent are from other states than ours.
The law under which the Committee was acting, which adjudged this appellant in contempt and committed him to jail for twenty days, was passed in 1907, and apparently this is the first time that any effort has been made to use the power and authority there attempted to be conferred upon a legislative committee. In Ex parte Wolters, 64 Tex.Crim. Rep., and Ex parte Gray,64 Tex. Crim. 311, the question was not in any sense whether a committee of the Legislature had power to imprison Wolters and Gray for contempt but was whether the Legislature itself at a Special Session could so act. We have no doubt of the power of the Legislature at a Special Session to do this, but will not discuss the question because not necessary in view of our disposition of the matter. We merely observe that the Legislature has just as much power to expel members for wrongful acts and conduct at a Special Session as it would at a Regular Session, and that being true it would have the same power to investigate those things pertaining to such conduct.
In our review of the authorities of other states and of the Federal courts we are confronted with the immediate difficulty that the facts in each case differ and the constitutions of the several states in many instances differ. The only cases that have been cited here at all similar on the facts are different in the constitutions of the states in which they were disposed of. These cases will probably be reviewed by my brother Hawkins. In our investigation of the authorities we have had constantly in mind the desire to uphold Article 5517, Complete Laws of Texas 1920, under which the Committee were acting at the time of this commitment for contempt. We have been unable to bring ourselves to believe that we can consistently uphold it. The *Page 340 Committee of the Legislature that adjudged Youngblood in contempt was beyond doubt a collection of persons of the Legislative Department of our government. Article 2 of our Constitution contains but one section, which is as folows:
"Departments of Government to be kept distinct, — The powers of the Government of the State of Texas shall be divided into three distinct departments, each of which shall be confided to a separate body of magistracy, to-wit: Those which are Legislative to one, those which are Executive to another, and those which are Judicial to another; and no person, or collection of persons, being of one of these departments, shall exercise any power properly attached to either of the others, except in the instances herein expressly permitted."
The Constitution of this State is the highest authority known to us in matters outside the domain of Federal jurisdiction; that article of the Constitution just quoted containing this statement "and no person, or collection of persons, being of one of these departments, shall exercise any power properly attached to either of the others, except in the instances herein expressly permitted," and it being unquestioned that the Committee was such collection of persons of the Legislative Department, there would seem to remain only the questions as to whether they were attempting to exercise power properly attached to the Judicial Department of the government, and if so, — whether there is that anywhere else in the Constitution which "expressly permits" such exercise of power. The annotations to the case of Farnham v. Colman, 117 American State Reports, 944, presents one of the most extended discussions of the question of contempt punishable by various courts and other bodies, to which we have had access. We quote from said annotation:
"The power to punish for contempt is undoubtedly a judicial power, and therefore, statutes undertaking to vest it in tribunals which are not judicial, must be unconstitutional: Whitcomb's Case, 120 Mass. 118, 21 Am. Rep. 502; Haughey v. Ryan, 182 Mo. 349, 81 S.W. 435."
We know of no authority anywhere holding that the power to punish for contempt is not the exercise of a judicial function.
Turning to the other question, we have searched through the Constitution in vain for anything that "expressly permits" a Committee of the Legislature, or any collection of persons belonging to the Legislature Department, to imprison for contempt. The only reference to the question of contempt as relates to the Legislature in any way is that contained in Sec. 15, Article 3 of the Constitution, which in terms "expressly permits" each house of the Legislature to imprison for contempt for not exceeding forty-eight hours at any one time. In our opinion under our Constitution, while the Legislature may function through a committee and because of the refusal of any person to answer proper inquiries before the committee, the matter *Page 341 may be reported to the house appointing the committee for its action, and said house of the Legislature may by appropriate proceedings adjudge such person in contempt, and he be thereafter imprisoned for the time specified by the Constitution for such contempt, the Committee itself has no such power because of the forbiddance of the Constitution. We may further observe that in our opinion the power of the Legislature, while in terms limited to imprisonment for forty-eight hours "at any one time," may be exercised time after time for each fresh refusal and each new contempt until it obtains the desired information. We do not think one may only be punished for his contempt of the law-making power of this State in the refusal to recognize its authority to obtain from him information to aid it in its work of representing the people in making laws or maintaining the integrity of the legislative body by the single punishment of forty-eight hours confinement in some jail, if the need continues on the part of the Legislature for such information and the contemptuous witness further refuses after such punishment to divulge what he may know. The interests of the entire State can not be thwarted by the refusal of a witness to divulge knowledge.
Being of opinion that Article 5517, supra, in so far as it attempts to confer power on a committee of the Legislature to punish for contempt, is not only without sanction of the Constitution but is directly contrary to the expressed declaration of that instrument, we must hold said law unconstitutional and reverse this case, and direct a discharge of the appellant.
May 7, 1923.