The return to the writ of certiora/ri shows that one Denison was brought before a justice of this court on habeas corpus issued to the sheriff of Albany county. In his return to the writ of habeas corpus, said sheriff sets forth that said Denison was in his custody by virtue of a warrant of commitment for contempt, issued by the Canal Investigating Commission; that said warrant recited the creation of such commission, the appointment of its members, the matters pending before it, that said Denison had been subpoenaed to attend before it to testify, and to bring with him certain books and papers relating to certain specified’ contracts with the State; that on the 14th day of July, 1875, said commission being duly organized as a board, and holding a regular meeting for purposes of investigation, etc., said Denison appeared before it in answer to said subpoena, and did then and there admit that he had present with him the books and papers relating to the contracts with the State then under investigation, and did then and there in the presence of said commission, willfully refuse to produce said books and papers, and to obey the subpoena, issued to and served upon him; whereupon said Denison was adjudged guilty of contempt, and ordered to be punished.
After a hearing on the return to the habeas corpus, the said Denison was discharged from the custody of said sheriff, the learned justice holding, that although the commission had power to enforce the attendance of witnesses, it had no power to compel a witness to answer, or to produce books and papers, or to punish him for refusal.
This investigating commission was created in March, 1875, by a concurrent resolution of the senate and assembly of this State; the members thereof were duly appointed by the governor with the advice and consent of the senate. Its duty, as defined by the resolution, was to investigate the affairs of the canals of this State, etc., and power was given it to compel the attendance of witnesses, and require the production before it of any books or papers in the custody or possession of any witness touching the subject of such investigation, etc.
*636This resolution and the appointments under it were subsequently recognized and ratified by the legislature (ehap. 91, Laws of 1875, page 80), which also gave to the commission authority to issue subpoenas, compel the attendance of witnesses and the production of books and papers before it, and, on failure of any witness to obey its mandate, power to issue attachments with the like proceedings as courts of record.
In this case Denison had been properly subpoenaed to appear before said commission, and to produce before it certain books and papers. He did so appear; he brought with him said books and papers, but he refused to produce them, without giving any reason or making any excuse.
Upon the argument it was claimed that the refusal was justified, because the commission had no legal existence; no legal power to act. That it could not be legally created by concurrent resolution, and that all its doings were void. That s.uch a tribunal could only be created by bill, enacted by both branches of the legislature, and signed by the governor. Certain clauses of the Constitution were cited in support of said objections. It is not necessary to discuss those clauses in detail. It is sufficient to say that there is no clause in the Constitution expressly prohibiting the creation of a commission by .concurrent resolution (People v. New York Central Railroad Company, 24 N. Y., 485); and where not expressly prohibited by the Constitution, the legislative power is unrestricted and unlimited. (People v. Dayton, 55 N. Y., 367; Leggett v. Hunter, 19 id., 445.)
Appointing commissions for various purposes by concurrent resolution, has been practiced by both State and national legislatures more or less from the organization of this government. It has been repeatedly.done in this State since the adoption of the constitution of 1846, as the Session Laws of the State will show. This’ fact alone would seem entitled to a controlling weight on the question of constitutionality. (People v. Dayton, supra; Story on the Const., § 408 ; Cooley on Const., 67.)
But conceding the concurrent resolution unauthorized, the legislature has, by bill and enactment, recognized the commission as a legal entity, validated its creation, and vested it with all the powers exercised in this proceeding. (Laws of 1875, chap. 91, p. 80.)
*637But it is claimed this act is also unconstitutional. First. As in conflict with that clause of the Constitution which declares that “ no person shall be deprived of life, liberty or property without due process of law.” This provision has no more application to this act than it has to any other act requiring witnesses to answer, and authorizing their punishment if they refuse. In such cases the proceedings to adjudicate, and to impose sentence, if adjudged guilty, is due process of law. Second. As in violation of article 3, section 17, a new clause which came into the Constitution in January, 1875, which declares that: “No act shall be passed which shall provide that any existing law, or part thereof, shall be made or deemed a part of said act, or which shall enact that any existing law shall be applicable to it, except by inserting it.” The act in question is not obnoxious to said clause of the constitution in the sense in which it is used in that instrument; the said act neither comes within the letter or spirit of the inhibition. ■ And besides, this, clause should receive a strict construction, and if said act is not strictly within the mischief sought to be provided against by the Constitution, it should be held as not within the inhibition.
I am, therefore, of the opinion that the commission was lawfully created; that it was vested with authority to issue subpoenas, to enforce the attendance of witnesses, and to compel the production of boohs and papers ; and in case of disobedience or refusal, it was authorized to proceed as if it were a court of record. It is true the language of the act does not say, in express words, the commission may punish,. but that power is fairly to be implied from its whole scope and purpose.
In this ease the witness was guilty of a willful disobedience; his refusal was without explanation or excuse, and the commission very properly adjudged him guilty of contempt, and awarded a warrant of commitment against him. He should have been remanded.
' The order of the justice should be reversed, and an order entered directing that the relator be remanded to the custody of the sheriff of Albany county, with costs against the relator.
Present- — JaMes and BoabdMAN, JJ.Ordered accordingly.