(dissenting). I dissent and vote for reversal. We are all agreed that there is no authorization for the creation of a “ New York State Crime Commission ” as such. In the absence of constitutional authority or appropriate legislation, neither the Governor nor the Attorney-General has the power of subpoena or testimonial compulsion. However much the ultimate purpose here sought to be attained may be indicated and desired, it must under our system of government be accomplished according to law. The cardinal precept upon which the constitutional safeguards of personal liberty ultimately rest is that a government should be one of laws. (Jones v. Securities & Exch. Comm., 298 U. S. 1.)
In the present case, where the Governor and the Attorney-General, acting under a sense of public duty" in their understandable revulsion against organized crime, which has so menacingly manifested itself in recent years (see Proceedings of the Governor’s Conference on Crime, &c. [1935], hereinafter referred to as 1935 Governor’s Conference), have selected as members of the commission a group of lawyers and laymen of unquestioned character and integrity, the temptation to submit to approval is strong. But it is by such well-intentioned approaches and deviations from legal modes of procedure that dangerous practices often secure their first foothold (Boyd v. United States, 116 U. S. 616, 635).
We are not here concerned with the right of the Governor or his duly appointed representatives to gather information, hold hearings and invite voluntary attendance of interested persons in aid of the performance of his constitutional duties (see 1935 Governor’s Conference). We are dealing with the executive subpoena power. It may not be found in section 3 of article IV of our State Constitution, which provides that the Governor shall recommend to the Legislature such matters as he shall judge expedient. The President of the United States has a like duty with respect to the Congress (U. S. Const., art. II, § 3). Yet our attention has not been called to a single instance throughout all the course of our nation’s history where the *219power here claimed was exercised by the Chief Executive of the State or Nation, and these constitutional provisions have never been judicially or administratively construed as conferring such power in the absence of an express enabling act. Such power must be u authorized by law ” (Civ. Prac. Act, § 403).
When the Legislature has chosen to grant the power to subpoena, it has done so by express legislation limited to a specific purpose, as, for example, when it gave such power to the Governor under the Moreland Act (Executive Law, § 8), and in removal proceedings (Public Officers Law, § 34); to the Attorney-General under the Martin Act (General Business Law, §§ 352-359 [fraudulent practices in the sale of securities]), and the Donnelly Act (General Business Law, §§ 340-347 [monopolies and combinations in restraint of trade]), and with respect to elections (Executive Law, § 66-a, now § 69). (See Attorney-General’s Statement on the Limits of his Jurisdiction made to 1935 Governor’s Conference, pp. 655-656.) Indeed, even when the Legislature itself sought to exercise such power, it provided specific legislation for the purpose (Legislative Law, §§ 60, 62-a; Penal Law, § 1329). These statutes follow substantially the same pattern as to subpoena powers in recognition of existing limitations (People ex rel. MacDonald v. Keeler, 99 N. Y. 463), and have had our approval as valid enactments in Dunham v. Ottinger (243 N. Y. 423 [Martin Act]), and Matter of Davies (168 N. Y. 89 [Donnelly Act]). Thus, while it appears clear that the Legislature may confer subpoena powers on the executive in appropriate cases, whenever it has done so it has taken care to limit such powers to the matters specifically covered by the statute.
A majority of this court has concluded that the executive order and the proceedings taken thereunder, which are now challenged, fall within the purview of subdivision 8 of section 62 (now § 63, subd. 8) of the Executive Law, notwithstanding their agreement that there “ is little doubt, of course, that the Legislature first recognized the need for such a statute as this because of a war emergency.” (P. 214.)
This statute was originally enacted a few weeks after our entry into World War I as a “ Peace and Safety Act ” by chapter 595 of the Laws of 1917, effective May 21, 1917, for the purpose of dealing with wartime sabotage, espionage and sub*220versive activities by enemy agents and sympathizers (1917 Atty. Gen. 8-9, under the caption “ Espionage Act ”; 1918, p. 16, under the caption “ Public Peace and Safety Act”; 1919, p. 5, under the caption “ Radicalism ”). The phrases “ public peace ”, “ public safety” and “ public justice ” were thus employed in keeping with an historical and established meaning, and as so used were properly referable to the situation then obtaining (Atty. Gen., id.; see Penal Law, art. 188; N. Y. Const., art I, § 4; Penal Law, arts. 14, 168; Ward Baking Co. v. Western Union Tel. Co., 205 App. Div. 723; Neuendorf v. Duryea, 6 Daly 276). The Attorney-General made full use of the authority thus conferred, not only to deal with wartime problems affecting the administration of State matters concerning public peace, safety and justice, but also to give useful assistance to the Department of Justice in its prosecution under the Espionage and Selective Service Acts and other wartime measures (1917 Atty. Gen. 8-9). Following the termination of World War I, the Attorney-General in his 1918 Report (p. 16) recommended the repeal of this statute after stating that it was “ well suited to war conditions ”. Nothing turns on the circumstance that the Legislature permitted the statute to remain in its original form, as is the case with other war measures. It is significant that Attorneys-General and Governors through all the intervening thirty-four years have never treated this enactment as being anything other than a war measure, with the exception hereinafter noted.
Long ago Chancellor Kent declared that the intent with which statutes were enacted “ is to be collected from the context, from the occasion and necessity of the law, from the mischief felt, and the objects and the remedy in view ” (1 Kent’s Commentaries 462; see, also, McKinney’s Cons. Laws of N. Y., Book 1, Statutes [1942 ed.], § 95). Very recently we have pointed out that courts “ do not merely read the bare end product of the legislative labors ’ ’ but rather ‘1 read the statute in the light of the state of facts which were found by the Legislature, and which prompted the enactment ” (St. Nicholas Cathedral v. Kedroff, 302 N. Y. 1, 31), and that “ statutes, directed against known and stated evils, are not to be stretched to cover situations having no real or reasonable relation to those evils ” (Metropolitan Life Ins. Co. v. Durkin, 301 N. Y. *221376, 381). Long-continued administrative interpretation of a statute by those whose business it is to operate thereunder is persuasive in its construction and is entitled to great, if not controlling, weight (McKinney’s Cons. Laws of N. Y. Book 1, Statutes [1942 ed.], § 129; Matter of Mounting & Finishing Co. v. McGoldrick, 294 N. Y. 104, 108).
The only time subdivision 8 of section 62 was invoked with respect to common-law and statutory crimes on the local level, the attempt was promptly rejected (Ward Baking Co. v. Western Union Tel. Co., supra). To give now to the words ‘1 public peace, public safety and public justice ’ ’ as used in subdivision 8 of section 62 a meaning broad enough to include authority to ‘ ‘ investigate generally the relationship between organised crime and any unit of G-overnment anywhere in the state ” (Executive Order, emphasis supplied) is to accomplish by judicial fiat something the Legislature could not reasonably have had in mind at the time the statute was enacted more than three decades ago. It is tantamount to giving the executive the power of the legislative and judicial branches of our government with respect to testimonial compulsion, for what matters do not touch “ public peace, public safety and public justice ” if those words' are to be given their broadest possible meaning, without reference to the mischief felt and the remedy in view at the time of enactment 1 Under such interpretation, long-recognized constitutional safeguards insuring due process are bound to be encroached upon. Organized crime is not an abstract concept ; it necessarily embraces specific unlawful acts by particular individuals, and the line between organized and unorganized crime is often difficult to detect. Assuming subdivision 8 of section 62 to be a valid enactment as a defense and safety wartime measure, it does uot follow that its language may be extended to embrace general investigatory power coupled with testimonial compulsion, and particularly so in the light of existing constitutional and statutory provisions.
Section 6 of article I. of our State Constitution provides, among other things: “ The power of grand juries to inquire into the wilful misconduct in office of public officers, and to find indictments or to direct the filing of informations in connection with such inquiries, shall never be suspended or impaired hy ]aw, ’ ’ Ip the Report of the Subcommittee on *222Judicial Powers and Administration of the New York State Constitutional Convention Committee, of which then Chief Judge Frederick E. Crake was Chairman (Vol. IX, p. 861 [1938]), we read: “ It is undisputed that the grand jury is the only body authorized by law to conduct a general investigation into the commission of crime without a specific charge of crime and without the necessity for naming a specific defendant.” (See, also, Code Crim. Pro., §§ 252, 223; Ward Baking Co. v. Western Union Tel. Co., supra; Matter of Both, 200 App. Div. 423; People ex rel. Travis v. Knott, 204 App. Div. 379; People ex rel. Sandman v. Tuthill, 79 App. Div. 24; People ex rel. Sampson v. Dunning, 113 App. Div. 35; Harriman v. Interstate Commerce Comm., 211 U. S. 407.)
The safeguards attending a grand jury investigation (Code Crim. Pro., part IV, tit. IV, ch. II, particularly §§ 223, 249, 255, 256, 265, 267) are not here preserved. The commission is empowered by executive order not only to investigate, but to “ take action ”. Any person may be freely interrogated, not only at private but at public hearings authorized by executive order, and said hearings may be conducted in such manner as the commission may elect. What is more compelling, so far as this record shows, the commission has not yet formulated and filed with the Department of State its rules for procedure, having contented itself with the issuance from time to time of oral announcements that are both vague and indefinite (N. Y. Const., art. IV, § 8).
To read subdivision 8 of section 62 as conferring power thus to investigate into the affairs of private individuals is to authorize an interference with constitutional due process contrary to all basic conceptions of law enforcement. Heretofore whenever subpoenas have been issued in violation of constitutional rights they have been vacated as they should be here (People ex rel. Ferguson v. Reardon, 197 N. Y. 236).
The broad and sweeping meaning now being attributed to subdivision 8 of section 62 overlooks the existing powers of the Governor to appoint extraordinary terms of the Supreme Court and to assign designated judges thereto, with special grand juries, as has frequently been done; and that a District Attorney of any county may be superseded or removed by the Governor whenever public interest requires it (N. Y. Const., *223art. IX, § 5; Executive Law, § 62, sub. 2 [now § 63, subd. 2]; Judiciary Law, § 149). There is nothing in the language of subdivision 8 of section 62 remotely suggesting that it was intended to supersede such constitutional and statutory procedures in the present situation.
We may note in passing that subdivision 8 of section 62 provides that “the expenses of the inquiry shall be made out of funds provided by the legislature for such purposes ”, to be deposited in the names of the Governor and the Attorney-General, payable only on their draft and subject to no other audit, thus contemplating prior legislative authorization; there has been no such authorization here. Moreover, while the statute directs the Attorney-General to make the appointments, the Governor, by his Executive Order, directly appoints the members of the commission, outlines their 1 ‘ duties, powers and authorities ”, and then directs the Attorney-General to conduct the inquiry, coupled however with a request that he “do so by appointing the members of the commission ”, While the statute places upon the Attorney-General the responsibility of conducting the inquiry, the Executive Order provides: “ The commission hereby established and the Attorney General in cooperation with the commission are hereby authorized and directed to exercise for the accomplishment of the purpose of this order all powers and authorities set forth in Section 62, Subdivision 8, of the Executive Law ” (emphasis supplied). By the same Executive Order the commission is directed “ to report on all of the foregoing to the Governor and the Legislature ” — not to the Attorney-General. It is true that the Attorney-General appoints each of the Governor’s designees “ an officer of the Department of Law ” but then describes his office thus: “to wit: a member of a commission to be known as the New York State Crime Commission”, for which commission we all agree there is no statutory authority. The oaths are taken in precisely the same manner. Nor is there any authority to make the subpoenas here returnable “ before ” such commission “ as directed by the Executive Order of the Governor ”, or for the crime commission as such to issue them as they attempted to do here. The foregoing merely serves to illustrate the great strain to which the respondents have been *224put in their endeavor to bring themselves within a statute that could never have been intended as here applicable.
While we are mindful of the court’s duty to construe statutes liberally, we do not lose sight of the rule that “ freedom to construe is not freedom to amend ” (Sexauer & Lemke v. Burke & Sons Co., 228 N. Y. 341, 345; Matter of O’Brien v. Tremaine, 285 N. Y. 233; Matter of McNerney v. City of Geneva, 290 N. Y. 505; Wagner v. Panama R. R. Co., 299 N. Y. 432; Saltser & Weinsier, Inc., v. McGoldrick, 295 N. Y. 499).
We cannot agree with the interpretation now given to subdivision 8 of section 62 of the Executive Law, for reasons regarded as fundamental in the administration of justice under the law. We believe such interpretation to be a dangerous step in the absorption by the Executive Department of a judicial function without express legislative sanction.
The order appealed from should be reversed and the application to vacate the subpoenas should be granted.
Loughran, Ch. J., Lewis and Desmond, JJ., concur with Conway, J.; Fuld, J., concurs in separate opinion; Dye, J., dissents in opinion in which Froessel, J., concurs.
Order affirmed.