(dissenting): I find myself unable to agree with the opinion of the majority as to the statement of law contained in paragraph 2 of the syllabus and the corresponding part of the opinion.
My view is, only the first part of G. S. 1949, 62-301, confers authority and jurisdiction on any official or court to hold an inquisition. That applies to the laws of the state relating to gambling, intoxicating liquor or any violation of any law where the accused is a fugitive from justice. There is no pretense, the case here falls into' any one of those three categories. The remainder of the section refers only to procedural matters.
My basis for this conclusion is partly historical. The first of the *717inquisition statutes was enacted and passed in 1885. It was part of a chapter that amended the prohibitory law in force at that time, then in an experimental stage. Since that time we have had many attorneys general, assistant attorneys general and thousands of county attorneys. Not one of them up to now ever used that statute in conducting an inquisition such as this, except under the three categories named.
What took place in this case is as potent an argument as could be made why the legislature never intended to give such sweeping powers to any court.
Here in the case of Courtney, the petitioner was punished, not for refusal to answer any particular question, but for refusal to answer a question the way the special assistant attorney desired it to be answered. This official was exploring the question of to whom Courtney gave some fluid when he brought it to strike headquarters in his car. It is clear from the transcript that Courtney meant to say he did not give it to anybody, but whoever took it knew it was in his car and came and got it from his car. The officials present, and there were none but officials present, were determined that he should say to whom he gave this and when he was unable to do so decided to punish him for contempt. Had they believed he was testifying falsely the remedy of the state was to try him for perjury, not to punish him for contempt. Such conduct is what the legislature endeavored to guard against by refusing to give such drastic power to courts and law enforcement officials.
The argument, the grand jury performed the function of investigation of crimes before statutes providing for inquisitions were enacted, leaving the implication there is more necessity for an inquisition statute relating to crimes generally than there was before, is not sound. I would be persuaded by it were it not for the fact the grand jury statute has continued on our books ever since first enacted in the early days of statehood. It is still extensively used where deemed necessary in ascertaining whether or not crimes have been committed. There is a great deal of difference in the consideration given the individual citizen when he is called to testify before a grand jury than when he is called before a judge of the district court holding a purported inquisition such as the majority opinion holds this statute provided for.
The grand jury is comprised of citizens of the community to which the witness belongs. There are twelve or more of his peers there on the grand jury when he is called upon to testify. The statute pro*718vides they shall be picked by lot. That is a far different affair from an inquisition such as described here, where the witness is called in before a battery of county attorneys, special county attorneys and police officers before a court selected by those officials when the inquisition was begun. This, in my opinion, is the reason the legislature never did intend that G. S. 1949, 62-301, should be given the construction the majority opinion gives it.
A persuasive incident to me is that when these men were sentenced, in one case to three months, and in the other cases to a year in the county jail, the sentences were not in the alternative that they should purge themselves of contempt, but were direct sentences to that much of a term in the county jail.
The entire affair was punitive and not in the interest of obtaining evidence. Had the investigation been carried on in good faith the sentences would have been, petitioners should be confined in the county jail for the terms indicated or until they should purge themselves of contempt.
Counsel in the oral argument stated such would be the construction given, that is, they would be offered an opportunity to purge themselves, but nowhere in this record do we find any such a provision in the so-called sentences.
It should never be overlooked, the qualification and the only qualification for an inquisitorial statute is to obtain information. It is not punitive. The state in these proceedings argues in one breath the purpose is as above, hence the constitutional safeguards do not apply, and in the next breath conducts the inquisition so that the net result is punitive.
Should these petitioners see fit to stay in jail for the terms for which they were sentenced, and there is no indication they may be afforded an opportunity to do otherwise, then the end the state advances in the inquisition will be defeated.
Actually the state is by this proceeding avoiding the necessity for calling a grand jury. That is a time-honored institution for which our statutes still provide. It is calculated to safeguard the rights of witnesses as well as to aid in intelligent law enforcement.
Granting for the sake of argument that the inquisition had a legal basis, still I am convinced the record in this case requires the granting of these writs. G. S. 1949, 62-301, provides, among other things, a witness may be imprisoned for contempt for any refusal to answer questions. This must be construed to mean any proper question or any question asked for the purpose of securing in*719formation bearing on the commission of any crime. That must be the proper construction since such is the only reason to justify an inquisition such as this. Obviously before a witness could be punished for contempt for refusing to answer a question, it must appear he was in possession of some such information. The matter of the testimony of Courtney, who was sentenced to three months in jail, has been dealt with already in this dissenting opinion. In the cases of Ferris and Park, each of whom was sentenced to a term in jail of a year, the transcript of the proceeding attached to the sheriff’s return shows the only question asked either one of them bearing on his possession of information was whether he was a striking taxicab driver. There was no testimony whatever that either one of them knew any facts useful to the state. No questions were asked bearing upon the commission of any acts of violence.
These petitioners have been deprived of their liberty for a year. In my opinion where such a judgment is entered, be it the result of a conviction before a jury, or after a contempt proceedings, the basis therefor should be clear and free from doubt.
It is my opinion, the orders sentencing these petitioners were arbitrary and unreasonable and in making them the court abused its discretion. The fact that these sentences did not offer the petitioners the privilege of purging themselves of contempt by testifying adds weight to the above conclusion.