I concur in the judgment; also in the splendid outline given of the privileges and powers of a legislative body in search of material for legislative purposes; also in that portion of the opinion which deals with the technical insufficiency of the order of commitment. But I prefer to rest my concurrence mainly upon the ground that in this case the state senate was not pursuing a legislative purpose. Avowedly it was conducting an inquiry into the existence of an unlawful conspiracy in restraint of trade among the cement producers and dealers *Page 258 in the state for the purpose of basing thereon civil and criminal proceedings in the courts to be inaugurated by the attorney-general in the name of the people of the state. This is the plain and unmistakable import of the resolution itself. In fact, in the preamble of the resolution setting on foot the inquiry is found these words:
". . . it is necessary that monopolies, trusts and conspiracies in restraint of trade, affecting the prices of commodities, if any exist, be regulated, and the attorney-general of the state requested to take steps to dissolve the same, and prosecute all guilty parties thereto, to the end that the people may have the benefit of lower prices of material by free competitive bidding; . . ."
However, should any doubt occur in the mind of anyone on the matter, it is entirely dispelled by the resolution of commitment, which repeatedly declares the purpose of the investigation to have been "to investigate as to the existence or nonexistence of a reputed illegal combination or conspiracy," or, as again stated therein, the committee was "to discharge its said duty of investigating as to the existence or nonexistence of such reputed illegal combination or conspiracy"; or, again, the purpose may be found in these words: "Whereas, the truth as to the existence or nonexistence of such reputed illegal combination or conspiracy is supposed to rest and be within the knowledge of these said witnesses, or in the proper books, papers, documents, and records required of them, such being in their possession or under their control; . . ."
No argument is required to show that whether a combination exists or does not exist is a judicial question. To say that the existence or nonexistence of criminal conspiracy in the commerce in one article will aid legislation upon the general subject of monopolies in business is to tax credulity to the breaking point. Can it be said that legislation on this subject is necessary if this combination in the cement business exists and is unnecessary if it does not exist or vice versa? If in the investigation of a legislative subject such as the regulation of intrastate business witnesses were produced who would give testimony on this subject, such testimony, of course, could not be refused upon the ground that it would also disclose a violation of the law. *Page 259
But we have no such situation here. The inquiry before us is not clothed with even the pretense that its purpose is a legislative one. The senate is, therefore, in the present proceeding transgressing upon the exclusive province of the judiciary and hence is without jurisdiction under the resolution as framed to pursue the inquiry attempted.
We reach the same conclusion for the same reason if we consider alone the resolution of commitment. Treating the resolution as the pleadings, findings and judgment in a constructive contempt proceeding or treating it as the order of commitment in a proceeding for contempt committed within the presence of the court, the commitment is illegal for all the reasons pointed out in the main opinion and on the ground that none of the questions propounded nor any of the documents sought are material because the inquiry is therein defined as a judicial and not as a legislative one. Hence, in any aspect of the matter, no contempt is shown.