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and report the facts in reference to said charges; and further
"Resolved, that said committee, or a majority thereof, be, and it hereby is, authorized to employ one or more stenographers, one or more expert accountants, one or more counsel, and such other assistants as it may deem necessary for the proper conduct of the Investigation herein directed; and shall have the power to compel the production before it of any books and records, letters, or documentary evidence of any character, which, in the judgment of the committee, pertains to any matters or things under investigation, and wherever found; and also to compel the attendance of any witnesses. Said committee may hold its meetings in any place designated by it in the state of Ohio. Any member or members of the committee, and its counsel or other assistants, shall have access at all times during the life of the committee to all books, records, papers, and other documents on file in the office of the various departments of said county and city; said committee, or a majority thereof, shall exercise and enjoy all the powers, privileges and authority of a legislative committee, with full power to enforce its directions and mandates as provided for by the laws of the state of Ohio governing such matters; and further
"Resolved, that in order to secure a full disclosure from all witnesses who may appear before said committee of all facts and things within their knowledge, it is the sense of the Senate that no witness should be prosecuted, indicted, held liable, or proceeded against in any other action or proceeding for any testimony given by him before said committee.
"Resolved, that said committee make report of its proceedings, with full transcript of testimony taken by it, together with its findings, in writing, to the Senate, with such recommendations for further legislation or amendments to existing legislation as the disclosures made to said committee may warrant, and recommend such further legislation generally on the subjects investigated by said committee as said committee, or a majority thereof, may agree upon, as the disclosures made to said committee may warrant; and further
"Resolved, that the expenses incurred by this committee be paid out of the contingent fund of the Senate; said expenses to be paid upon proper vouchers signed by the chairman of this committee.
"77th General Assembly. Regular Session.
"I, A. P. Sandles, clerk of the Ohio State Senate, of the 77th General Assembly, duly elected and qualified, do hereby certify that the above and foregoing is a true and correct copy of Senate Resolution No. 23, passed February 7, A. D. 1906.
"In witness whereof, I hereunto set my hand, this thirteenth day of February, 1906. "A. P. Sandles, Senate Clerk."
"77th General Assembly, Regular Session. S. R. No. 30. By Mr. Espy.
"Relative to the Committee Appointed to Investigate Charges of Corruption Existing in the Government of the City of Cincinnati and the County of Hamilton. "Whereas, by resolution No. 23, adopted by the Senate of Ohio, on the seventh day of February, 1906, a committee, consisting of Messrs. Drake, Schmidt, Espy, Sites and Meck, was appointed to investigate charges that certain officials of Cincinnati and Hamilton county and the commissioners of the waterworks of said city have made certain collusive and illegal contracts and have unlawfully misapplied and misused the public funds, and have otherwise misused their official positions; and that certain persons, corporations and political committees, not officeholders, have unlawfully conspired with or influenced said officials, or collected certain sums of money therefrom, illegally or for an illegal purpose, or both, and have conspired to corrupt the ballot, and that there have been other forms of misgovernment in said city and county, and to investigate all matters and things in any way pertaining to said charges, with full power to prosecute its inquiry in any and every direction in its judgment proper and necessary to enable it to obtain and report the facts in reference to said charges;
"Whereas, the time within which the said committee was to make its report to the Senate, to the end that proper remedial legislation should be enacted, was not limited by said resolution;
"Whereas, it appears to be impracticable for said committee to complete the investigation and to make the report during the present session of the General Assembly.
"Resolved, that said committee, or a majority thereof, be and it is hereby directed to continue the investigation under said resolution, with all the power and authority thereby conferred, after the adjournment of the present session of the General Assembly, and to submit to the Senate, not later than January 15, 1908, a full report of the proceedings, together with such recommendations as in its judgment may be necessary and proper on the facts and conditions by it discovered and ascertained for the enactment of proper remedial legislation.
"I, A. P. Sandles, clerk of the Ohio Senate, do hereby certify that the above and foregoing is a true and correct copy of Senate Resolution No. 30, as adopted by the Senate on the twenty-sixth day of March, A. D. 1906, as appears on the journal of the Senate of that day.
"In witness whereof, I have hereunto set my hand this thirty-first day of March, 1906. "A. P. Sandles, Senate Clerk."
"State of Ohio, Hamilton County, ss.:
"M. M. Robertson, being duly sworn, on oath says that the above account for rent, light and repairs as therein stated, against the Select Committee of the Ohio Senate, is in all respects just and true as he verily believes, and that he is president of the Robertson Realty Co.
"M. M. Robertson. "Sworn to before me and subscribed in my presence this twentieth day of April, 1906. "[Seal.] E. O. Hunt, "Notary Public, Hamilton County, O."
"77th General Assembly, Regular Session. "Columbus, O., April 20, 1906.
"To the Auditor of State:
"In compliance with provisions of Senate Resolution No. 23, I hereby certify that the Robertson Realty Company is entitled to the sum of two hundred and sixty-five and 30100 dollars for rent, light and repairs as per annexed account, to be paid from appropriation for Cincinnati investigating committee. "$265.30. (Payable only on endorsement
"John C. Drake, "Chairman of Select Committee of the Senate."
The respondent waived the issuing and service of process and specifically waived the issuing of an alternative writ of mandamus herein, and demurred to the petition on the ground that it does not state facts sufficient to constitute a cause of action or to entitle the relator to any relief whatsoever against the respondent.
Jacob Shroder and Butler & Carlisle, for relator. Wade H. Ellis, Atty. Gen., Lawrence Maxwell, Jr., Ernst, Cassatt & McDougall, Miller Outcalt, and Frank F. Dinsmore, for respondent.
no money can lawfully be drawn out of the treasury except upon his warrant; and it is required that "he shall not draw any warrant on the Treasurer for any claim unless he finds the same legal, and that there is money in the treasury which has been duly appropriated to pay the same." Rev. St. 1906, §§ 153, 154. The only appropriation for such purpose which is available at present, is an appropriation for "contingent fund of the Senate for the use of select investigating committees." 98 Ohio Laws, p. 42. This is not an appropriation specifically for this committee; but it is clearly an appropriation for the contingent fund of the Senate for the use of any select investigating committee or committees. Presumably it is appropriated for the use of any select investigating committee which has been legally constituted for a legal purpose. The Auditor of State declines to issue his warrant for the payment of expenses of this committee, claiming that the Senate exceeded its constitutional powers in appointing the committee.
The broad claim is made for the relator that the right to gather information in its own way, for the purposes of legislation, inheres in the Senate as a legislative body; and that it is "a right fundamental to legislation, and not denied by the Constitution." But whatever inherent power the General Assembly in its entirety may possess by virtue of its being the repository of the whole legislative power of the state, we do not think that it follows as a conclusion that one of its constituent parts must likewise possess the same inherent powers. It may be conceded that either branch of the General Assembly has all such powers as are necessarily implied in the express grant of powers to it by the Constitution; but under the system of distribution of powers in the American Constitutions, and especially under the Constitution of Ohio, which is explicit in excluding from the legislative department the exercise of any power which is not delegated in the Constitution (article 1, § 20), the authority of a single branch of the Legislature to act separately must be found in express terms or by necessary implication in the Constitution. It is clear that "the legislative power," whatever may be the extent of that power which is conferred upon the General Assembly, is not expressly delegated to a part of the General Assembly. Nor is it impliedly so delegated. The Constitution explicitly grants and defines the separate powers of each branch of the General Assembly; and all powers which are not delegated to each house are expressly reserved to the people. The powers of each house are not general, and subject only to limitation in the Constitution, as is the legislative power of the entire General Assembly; but they are specific or enumerated powers. As to these, the provisions of the Constitution are grants of power limited by the reservations of article 1, § 20. We therefore must look to the enumer
ated powers alone to determine this question; and it were just as sane to claim that either branch of the Legislature might, by itself, enact a law, as to claim that by "inherent power" it could independently exercise any legislative power outside of those specifically delegated in the Constitution.
Precedents and usages drawn from English parliamentary practice cannot safely guide us; because, as has been often pointed out, the Parliament was originally a high court of judicature and both houses thereof still retain many of their ancient judicial functions; and Parliament is in no manner restrained by the limitations of a of a written Constitution. Nor should the remarks or rulings of courts in cases where the questions now under discussion were not distinctly in issue and carefully considered, be followed without caution, and especially so where the constitutional and statutory provisions vary from those of this state. We may say, however, that the doctrine of inherent powers, as laid down in Anderson v. Dunn, 6 Wheat. (U. S.) 204, 5 L. Ed. 242, and followed many times in this country, has been very much weakened if not entirely overturned by the principles established in Kilbourn v. Thompson, 103 U. S. 168, 26 L. Ed. 377. The latter case, in a remarkable opinion by Mr. Justice Miller, established the following propositions from which the judgment in that case was reached: (1) The powers of either house of Congress must be found in some express grant in the Constitution, or be such as are necessary to carry into effect such powers as are expressly granted. (2) That the theory of inherent powers announced in Anderson v. Dunn, supra, is unsound and should be rejected, and (3) "that the resolution of the House of Representatives authorizing the investigation was in excess of the power conferred on that body by the Constitution." That such is the effect of Kilbourn v. Thompson, was recognized by this court in Ex parte Dalton, 44 Ohio St. 142, 5 N. E. 136, 58 Am. Rep. 800, in the opinion by Owen, C. J., at page 151 of 44 Ohio St., page 138 of 5 N. E. (58 Am. Rep. 800). It is true that all of these cases involved the question of the power of a legislative body to punish for contempt, and it is also true that the Supreme Court of the United States in Kilbourn v. Thompson expressly declined to pass upon the existence or nonexistence of a power in either house of Congress in aid of legislation, because it was not necessary to a decision of the case; but it nevertheless remains true as the doctrine of that case that any power claimed by Congress, or either branch of it, must be found in the Constitution or necessarily implied from it. The same principle must apply to the General Assembly of Ohio and its constituent branches, because all powers not delegated in the Constitution of Ohio, remain with the people. Article 1, § 20.
Therefore, looking into the Constitution for the authority claimed here, what do we find? The whole legislative power of the state, whatever that may include, is vested in the General Assembly, consisting of the Senate and House of Representatives (article 2, § 1); and it is provided that the General Assembly shall not exercise any judicial power which is not expressly conferred in the Constitution (article 2, § 32). Assuming that the power which is claimed here is conferred by these sections of the Constitution upon the General Assembly as a whole, does it follow that the same power is conferred upon each of its constituent parts? Certainly not. A substantive legislative act, that is, one which is not merely a matter of procedure, must be performed by the General Assembly and not by some of its constituent parts. For that reason the Constitution proceeds to define the powers of each branch of the General Assembly. These provisions need not be quoted here. They are found in article 2, §§ 6-9, 14, 15, 17, and 23. Here, and here only, are found the powers granted to the Senate or House acting separately. The power of seeking information for general legislative purposes is not found here, and it is not implied unless it be necessary to the proper exercise of the special jurisdiction which is expressly granted to either branch of the General Assembly, as, for example, the judging of the election, returns and qualifications of its own members, the expulsion of a member, etc. But in section 8 of article 2, we have, as we construe it, a positive negation of the powers which are claimed for a single branch of the General Assembly in this case. That section is as follows: "Each house, except as otherwise provided in this Constitution, shall choose its own officers, may determine its own rules of proceeding, punish its members for disorderly conduct; and, with the concurrence of two-thirds, expel a member, but not the second time for the same cause; and shall have all other powers, necessary to provide for its own safety, and the undisturbed transaction of its business." The last clause of this section restricts the phrase "all other powers" to such powers as are necessary to secure the safety of each house and the peaceable transaction of its business, thereby excluding from the grant all powers which are not included in the class named. The familiar maxim of interpretation, "Expressio unius est exclusio alterius," applies here; for logically the express grant of certain powers and silence as to others is necessarily a withholding of those not named. It seems to us that this construction of section 8 of article 2, of the present Constitution, is very much strengthened by the variance which is disclosed by comparison with section 11 of article 1 of the Constitution of 1802. The last-named section is substantially the same as the one now in force, except in the last clause which is as follows: "and
shall have all other powers necessary for a branch of the Legislature of a free and independent state."
It is certain that if the doctrine of inherent powers of legislative bodies ever had any existence under a constitutional government it was recognized and granted in this broad language of our former Constitution, and that it was not included in the grants of the present Constitution, but without attempting to define the extent of powers conferred by this clause of the Constitution of 1802, it is obvious to the most casual reader that it is much broader than the grant of power in the present Constitution. is, inconceivable that a convention called "to revise, amend or change the Constitution of this state" should not have noticed the difference in the language of the two Constitutions and should not have appreciated the significance of the change. The conclusion would, therefore, seem to be irresistible that the framers of the Constitution designedly narrowed the grant of powers to each house of the General Assembly to those which are expressly mentioned. But it is said that even if it be so that a single branch of the General Assembly could not by itself constitutionally appoint an investigating committee for purposes such as proposed here, it is nevertheless authorized to do so by an act of the whole General Assembly and that this committee was expressly appointed by the Senate under and by virtue of sections 50 to 55, inclusive, of the Revised Statutes of Ohio of 1906. If a single branch of the General Assembly has no constitutional power to appoint this committee, it must be obvious that the whole Legislature cannot authorize it to do so. The Constitution is above the Legislature, and the legislative power which may be delegated to the General Assembly cannot be redelegated to some other body.
We do not, however, accept the construction of the statute which is contended for by the relator. The sections 50 to 55, inclusive, of the Revised Statutes of 1906, may be found as originally enacted April 3, 1872, in 69 Ohio Laws, p. 61, where the act is entitled "An act to authorize committees of the General Assembly to compel the attendance of witnesses, and for other purposes." the title of the act and from its purview, it is apparent that the thought of authorizing the appointment of standing or select committees by the General Assembly itself or by a single branch thereof was not in the mind of the Legislature; but that, assuming them to have been already appointed (and nobody ever questioned the right of either branch of the General Assembly to appoint such committees in regard to matters over which such house has express authority in the Constitution) the General Assembly proceeds to provide for their greater efficiency in the discharge of their functions, by providing a mode and authority for compelling
the attendance of witnesses, the punishment for contempt, etc. We are entirely unable to see how the construction of these sections of the Revised Statutes as contended for by the relator can be fairly put upon them; and if they could be so construed, then, entertaining the views which we have already expressed as to the constitutional powers of a single branch of the General Assembly, we would feel compelled to declare this legislation to be unconstitutional. We prefer a construction which would allow the statute to stand with the Constitution, by applying it only to matters or procedure by committees which have been otherwise duly and constitutionally appointed.
It was suggested in argument that the appropriation (98 Ohio Laws, p. 42) by the concurrent action of both houses of the General Assembly is a ratification of the Senate resolution. It is, perhaps, a sufficient answer to this to recall once more the indefinite character of the appropriation. It is not a definite appropriation for the use of the committee appointed by the Senate resolution, but for the use of "committees." Nor can it be said that the making of an appropriation to the Senate contingent fund for a stated purpose is in the nature of a bill authorizing the committee; because it does not profess to authorize the committee or ratify the resolution of the Senate, and because the resolution, being void under the Constitution, it could not be ratified.
In behalf of the respondent it has been argued with much force and keen analysis that upon the face of the Senate resolution the scope and purpose of the inquiry is an exercise of judicial power, which is expressly forbidden by article 2, § 32, of the Constitution, and therefore that it is beyond the power of the General Assembly. It is not necessary to decide this question in this case and therefore we do not pass upon it. People ex rel. v. Keeler, 99 N. Y. 463, 2 N. E. 615, 52 Am. Rep. 49, has been vigorously pressed upon our attention, by counsel for the relator, as decisive of this case; but we do not regard it as controlling or even persuasive, for several reasons, the chief of which are: First, that the Constitution of the state of New York contains no such distinct distribution of powers as is found in the Constitution of this state; and, second, that the court in that case expressly held that certain powers in their nature judicial belong to the Legislature of the state of New York, and that therefore a statute is not necessarily void which involves action on the part of either house which is in its nature judicial. Such a decision could not have been made under the provisions of the Constitution of Ohio to which we have referred, especially article 2, § 32.
The demurrer to the petition is sustained and the petition dismissed.
SHAUCK, C. J., and PRICE and SUMMERS, JJ., concur. CREW and SPEAR, JJ, dissent
2. EVIDENCE-PRESUMPTIONS-OFFICIAL ACTS. In such case, it cannot be presumed, as the law requires the list to be filed as a part of the records of the county court, that the clerk did his duty and filed it in the office of the clerk of the county court.
[Ed. Note. For cases in point, see vol. 20, Cent. Dig. Evidence, § 105.]
3. MUNICIPAL CORPORATIONS ASSESSMENT
Where the records in a special assessment proceeding show that the published delinquent list was filed in the office of the county clerk and ex officio clerk of the county court of the county, in attempted compliance with the statute requiring it to be filed as part of the records of the county court, that its due publication was sworn to before the clerk, who signed his name to the jurat as clerk of the county court, cannot aid the defect.
4. SAM-NOTICE OF COLLECTOR SUFFICIEN
A statement in the notice of the collector preceding the delinquent list that application for judgment will be made for the taxes for certain specified years and previous years, is not in compliance with the statute requiring the advertise nts to contain a list of the delinquent lots on which the taxes remain due and unpaid, and the year or years for which they are due.
Error to Lake County Court; D. L. Jones, Judge.
Special assessment proceedings by the people, on relation of Lewis C. Price, county treasurer, against Michael R. Drennen. From a judgment and order of sale entered by default against certain property for a special tax, the defendant brings error. Reversed.
George W. Wilbur, for plaintiff in error. Leslie P. Hanna, State's Atty., and Smoot & Eyer, for defendant in error.
FARMER, J. This is a writ of error to the county court of Lake county to reverse a judgment and order of sale entered by default in that court against certain property in Highland Park for a special tax for the construction of a sidewalk.
It is first objected that the printed list of delinquent lands and lots, with the certificate, under oath, of the publisher as to due publication as required by law, and which the law requires to be presented by the collector to the county court when judgment is prayed, and a copy thereof filed as a part of the records of said court, was not filed with the clerk of the county court, nor as a part of the records of said court. The record shows it was "filed in the office of the
county clerk and ex officio clerk of the county court of said county." This is not a compliance with the statute requiring it to be filed "as a part of the records of said court."
It is contended by defendant in error that, as the law required the list to be filed as a part of the records of the county court, it must be presumed that the clerk did his duty and filed it in the office of the clerk of the county court. We think no such presumption can be indulged in the state of this record. If the recital was that the certificate was filed in the office of the county clerk, with the addition of no other words, it would clearly not be a compliance with the statute. The words "and ex officio clerk of the county court," immediately following "county clerk," leave it very uncertain as to where the list was filed. Whether it was filed in the office of the county clerk, who is also ex officio clerk of the county court, or whether it was filed in the office of the county clerk and in the office of the ex officio clerk of the county court, is by no means clear. In McChesney v. People, 174 Ill. 46, 50 N. E. 1110, it was held that the act requiring the list to be filed as a part of the records of the county court is mandatory and essential in order to give the court jurisdiction. In that case it was said: "The offices [of county clerk and clerk of the county court] are separate and distinct, although by the statute they are filled by the same person. In the different offices he has charge of two different and separate sets of records pertaining to different jurisdictions. The records in the office of the county clerk are not records of the county court, and filing a paper in that office does not make it a part of the records of that court." The original paper containing the delinquent list has been certified up to us, and the file-mark thereon is: "Filed May 31, /04.-A. C. Hendee, clerk." The fact that its due publication was sworn to before the clerk, who signed his name to the jurat "A. L. Hendee, clerk of the county court," cannot, as contended by the defendant in error, aid the defect. McChesney v. People, supra, was approved and followed in Glos v. Woodard, 202 Ill. 480, 67 N. E. 3; Nowlin v. People, 216 Ill. 543, 75 N. E. 209, and Glos v. Hanford, 212 Ill. 261, 72 N. E. 439.
It is next objected that the published delinquent list was defective in not complying with the statute requiring the publication of the year or years for which the delinquent taxes are due. On the first page of the paper containing the delinquent list, and preceding the first column of said list, is the notice of the collector that he would apply to the county court of Lake county, to the June term, 1904, "for judgment against the lands and lots mentioned and described in the following list of delinquent lands and lots, for the taxes, special taxes, back taxes. personal taxes, special assessments, interest,