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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,"
"Exhibit B. "77th General Assembly, Regular Session. S.
R. No. 30. By Mr. Espy.
“Senate Resolution. “Relative to the Committee Appointed to In
vestigate 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 forins 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."
"Cincinnati, O., April 19, 1906. "The Select Committee of the Ohio Senate
to The Robertson Realty Co.: To rent of second floor, Lincoln Club
building, Eighth and Race streets, from February 19, 1906, to April 19, 1906, two months, at $125.00 per month
$250 00 To electric light for March, etc..
12 50 To repairs to light, per Devere Electric Co. ....
075 To spring latch and keys, C. S. Siewers 2 05
$265 30 “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. 0. Hunt, "Notary Public, Hamilton County, 0."
"Exhibit D. "No. 508.
"Senate Chamber. “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 of payee.)
"John C. Drake, "Chairman of Select Committee of th
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, SS 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 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 Constituţion 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
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.
DAVIS, J. (after stating the facts).
This case fairly involves an issue as to the legal existence of the select investigating committee which was appointed by a resolution of the Senate. The Auditor of State is made the chief accounting officer of the state and
ated powers alone to determine this question ; Therefore, looking into the Constitution for and it were just as sane to claim that either the authority claimed here, what do we find? branch of the Legislature might, by itself, The whole legislative power of the state, enact a law, as to claim that by "inherent whatever that may include, is vested in the power" it could independently exercise any General Assembly, consisting of the Senate legislative power outside of those specifically and House of Representatives (article 2, delegated in the Constitution.
§ 1); and it is provided that the General Precedents and usages drawn from Eng.
Assembly shall not exercise any judicial lish parliamentary practice cannot safely power which is not expressly conferred in guide us; because, as has been often pointed the Constitution (article 2, § 32). Assumout, the Parliament was originally a high ing that the power which is claimed here is court of judicature and both houses thereof conferred by these sections of the Constitustill retain many of their ancient judicial func- tion upon the General Assembly as a whole, tions; and Parliament is in no manner re
does it follow that the same power is constrained by the limitations of a written ferred upon each of its constituent parts? Constitution. Nor should the remarks or Certainly not. A substantive legislative act, rulings of courts in cases where the ques
that is, one which is not merely a matter of tions now under discussion were not dis- | procedure, must be performed by the General tinctly in issue and carefully considered, be Assembly and not by some of its constituent followed without caution, and especially so parts. For that reason the Constitution where the constitutional and statutory pro- proceeds to define the powers of each branch visions vary from those of this state. We of the General Assembly. These provisions may say, however, that the doctrine of in- need not be quoted here. They are found in herent powers, as laid down in Anderson article 2, $$ 6-9, 14, 15, 17, and 23. Here, and v. Dunn, 6 Wheat. (U. S.) 204, 5 L. Ed. 242, here only, are found the powers granted to and followed many times in this country,
the Senate or House acting separately. The has been very much weakened if not entire- power of seeking information for general ly overturned by the principles established | legislative purposes is not found here, and in Kilbourn v. Thompson, 103 U. S. 168, 26 it is not implied unless it be necessary to L. Ed. 377. The latter case, in a remark- the proper exercise of the special jurisdicable opinion by Mr. Justice Miller, estab- tion which is expressly granted to either lished the following propositions from which branch of the General Assembly, as, for exthe judgment in that case was reached: (1) ample, the judging of the election, returns The powers of either house of Congress must and qualifications of its own members, the be found in some express grant in the Con- expulsion of a member, etc. But in section stitution, or be such as are necessary to 8 of article 2, we have, as we construe it, carry into effect such powers as are express- a positive negation of the powers which are ly granted. (2) That the theory of inher- claimed for a single branch of the General ent powers announced in Anderson v. Dunn, Assembly in this case. That section is as supra, is unsound and should be rejected, follows: "Each house, except as otherwise and (3) "that the resolution of the House provided in this Constitution, shall choose of Representatives authorizing the investi- its own officers, may determine its own gation was in excess of the power conferred rules of proceeding, punish its members for on that body by the Constitution.” That disorderly conduct; and, with the concursuch is the effect of Kilbourn v. Thompson, rence of two-thirds, expel a member, but was recognized by this court in Ex parte not the second time for the same cause; and Dalton, 44 Ohio St. 142, 5 N. E. 136, 58 Am. shall have all other powers, necessary to Rep. 800, in the opinion by Owen, C. J., at provide for its own safety, and the undispage 151 of 44 Ohio St., page 138 of 5 N. E. turbed transaction of its business." The (58 Am. Rep. 800). It is true that all of last clause of this section restricts the phrase these cases involved the question of the pow- "all other powers" to such powers as are er of a legislative body to punish for con- necessary to secure the safety of each house tempt, and it is also true that the Supreme and the peaceable transaction of its business, Court of the United States in Kilbourn v. thereby excluding from the grant all powers Thompson expressly declined to pass upon which are not included in the class named. the existence or nonexistence of a power in The familiar maxim of interpretation, "Exeither house of Congress in aid of legislation, pressio unius est exclusio alterius," applies because it was not necessary to a decision here; for logically the express grant of cerof the case; but it nevertheless remains true tain powers and silence as to others is necas the doctrine of that case that any power essarily a withholding of those not named. It claimed by Congress, or either branch of seems to us that this construction of section it, must be found in the Constitution or 8 of article 2, of the present Constitution, is necessarily implied from it. The same prin- very much strengthened by the variance ciple must apply to the General Assembly which is disclosed by comparison with secof Ohio and its constituent branches, because tion 11 of article 1 of the Constitution of all powers not delegated in the Constitu- 1802. The last-named section is substantialtion of Ohio, remain with the people. Arti- ly the same as the one now in force, except cle 1, § 20.
in the last clause which is as follows: "and
shall have all other powers necessary for a | the attendance of witnesses, the punishment branch of the Legislature of a free and in- for contempt, etc. We are entirely unabló dependent state."
to see how the construction of these sections It is certain that if the doctrine of inher- of the Revised Statutes as contended for by ent powers of legislative bodies ever had the relator can be fairly put upon them; and any existence under a constitutional govern- if they could be so construed, then, entertainment it was recognized and granted in this ing the views which we have already expressbroad language of our former Constitution, ed as to the constitutional powers of a single and that it was not included in the grants branch of the General Assembly, we would of the present Constitution, but without feel compelled to declare this legislation to attempting to define the extent of powers be unconstitutional. We prefer a coustrucconferred by this clause of the Constitution tion which would allow the statute to stand of 1802, it is obvious to the most casual with the Constitution, by applying it only to reader that it is much broader than the grant matters or procedure by committees which of power in the present Constitution. It have been otherwise duly and constitutionally is, inconceivable that a convention called appointed. "to revise, amend or change the Constitution It was suggested in argument that the apof this state" should not have noticed the propriation (98 Ohio Laws, p. 42) by the condifference in the language of the two Con- current action of both houses of the General stitutions and should not have appreciated Assembly is a ratification of the Senate resothe significance of the change. The con
lution. It is, perhaps, a sufficient answer to
. clusion would, therefore, seem to be irre- this to recall once more the indefinite charac. sistible that the framers of the Constitu- ter of the appropriation. It is not a definite tion designedly narrowed the grant of pow- appropriation for the use of the committee ers to each house of the General Assem- appointed by the Senate resolution, but for bly to those which are expressly mentioned.
the use of "committees." Nor can it be said But it is said that even if it be so that a that the making of an appropriation to the single branch of the General Assembly could
Senate contingent fund for a stated purpose not by itself constitutionally appoint an in
is in the nature of a bill authorizing the comvestigating committee for purposes such as
mittee; because it does not profess to authorproposed here, it is nevertheless author- ize the committee or ratify the resolution of ized to do so by an act of the whole General
the Senate, and because the resolution, being Assembly and that this committee was ex
void under the Constitution, it could not be pressly appointed by the Senate under and
ratified. by virtue of sections 50 to 55, inclusive, of
In behalf of the respondent it has been the Revised Statutes of Ohio of 1906. If
argued with much force and keen analysis a single branch of the General Assembly
that upon the face of the Senate resolution has no constitutional power to appoint this
the scope and purpose of the inquiry is an committee, it must be obvious that the whole
exercise of judicial power, which is expressly Legislature cannot authorize it to do so.
forbidden by article 2, $ 32, of the Constitu
tion, and therefore that it is beyond the powThe Constitution is above the Legislature, and the legislative power which may be
er of the General Assembly. It is not necesdelegated to the General Assembly cannot
sary to decide this question in this case and be redelegated to some other body.
therefore we do not pass upon it. People ex
rel. v. Keeler, 99 N. Y. 463, 2 N. E. 615, 52 We do not, however, accept the construction of the statute which is contended for by
Am. Rep. 49, has been vigorously pressed the relator. The sections 50 to 55, inclusive,
upon our attention, by counsel for the relator, of the Revised Statutes of 1906, may be
as decisive of this case; but we do not regard
it as controlling or even persuasive, for sevfound as originally enacted April 3, 1872, in 69 Ohio Laws, p. 61, where the act is entitled
eral reasons, the chief of which are: First,
that the Constitution of the state of New "An act to authorize committees of the Gen
York contains no such distinct distribution eral Assembly to compel the attendance of witnesses, and for other purposes."
of powers as is found in the Constitution of From
this state; and, second, that the court in that the title of the act and from its purview, it is apparent that the thought of authorizing
case expressly held that certain powers in
their nature judicial belong to the Legislature the appointment of standing or select com
of the state of New York, and that therefore mittees by the General Assembly itself or
a statute is not necessarily void which inby a single branch thereof was not in the
volves action on the part of either house mind of the Legislature; but that, assuming them to have been already appointed (and
which is in its nature judicial. Such a deci
sion could not have been made under the pronobody ever questioned the right of either
visions of the Constitution of Obio to which branch of the General Assembly to appoint
we have referred, especially article 2, § 32. such committees in regard to matters over which such house has express authority in
The demurrer to the petition is sustained
and the petition dismissed. the Constitution) the General Assembly proceeds to provide for their greater efficiency SHAUCK, C. J., and PRICE and SUM. in the discharge of their functions, by pro- MERS, JJ., concur. CREW and SPEAR, JJ, viding a mode and authority for compelling dissent
(222 111. 592) DRENNEN v. PEOPLE ex rel. PRICE, Coun
ty Treasurer. (Supreme Court of Illinois. Oct. 23, 1906.) 1. MUNICIPAL CORPORATIONS SPECIAL ASSESSMENTS-FILING PUBLISHED LIST.
The filing of the published list of delinquent lands with the certificate of the publisher in the "office of the county clerk and ex officio clerk of the county court of said county," is not in compliance with the statute requiring it to be filed as part of the records of the county court. 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 PROCEEDINGS-CURING DEFECTS.
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 defert. 4. SAMO-NOTICE OF COLLECTOR SUFFICIENCY.
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 ants 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
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.
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 be fore 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. 200, 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 he following list of delinquent lands and lots, for the taxes, special taxes, back taxes. personal taxes, special assessments, interest,
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