Attorney Gen. v. Brissenden

• Citation: 171 N.E. 82,271 Mass. 172
• Parties: ATTORNEY GENERAL v. BRISSENDEN.
• Decision Date: 15 April 1930
• Court: United States State Supreme Judicial Court of Massachusetts

271 Mass. 172

171 N.E. 82

ATTORNEY GENERAL

v.BRISSENDEN.

Supreme Judicial Court of Massachusetts, Suffolk.

April 15, 1930.

Report from Supreme Judicial Court, Suffolk County.

Application by the Attorney General of the Commonwealth for an order to require Alfred H. Brissenden to answer questions propounded to him in the course of a hearing before the Attorney General pursuant to certain resolves directing an investigation. Defendant's request for rulings was denied, and defendant ordered to answer questions, and case then reported on pleadings, findings, rulings, and orders for determination of court.

Affirmed.

R. Clapp, Asst. Atty. Gen., and D. C. Starr, of Boston, for the Attorney General.

W. H. Shea and H. Wise, both of Boston, for respondent.

RUGG, C. J.

This is an application for an order to require the defendant to answer questions propounded to him in the course of a hearing before the Attorney General conducted under chapters 4 and 13 of the Resolves of 1930. By said chapter 4 the General Court directed the Attorney General ‘to make a thorough investigation of the circumstances surrounding the pension awarded to Oliver B. Garrett as a member of the police department of the city of Boston, and all other matters dealing with the service of the said Oliver B. Garrett during his term of employment as a member of said police department. For the purposes of this resolve, the attorney general may hold public hearings, may require the attendance and testimony of witnesses under oath, and the production of books and papers pertinent to the matters under investigation.’ He was further directed to report to the General Court his findings. By said chapter 13 it was provided ‘that, for the purposes of the investigation directed to be made by the attorney general under’ said chapter 4, ‘the scope of which is hereby extended to include all matters dealing with the service of Oliver B. Garrett during his term of employment as a member of the police department of the city of Boston, the attorney general may require by summons the attendance and testimony of witnesses and the production of books and papers before him relating to any matter investigated by him in pursuance of said chapter four or of this resolve. * * * Such witnesses shall, before testifying, be sworn by the attorney general or by one of his assistants. * * * No person shall be excused from attending and testifying in the course of such investigation, or from producing and books, papers or documents, on the ground that his testimony or evidence, documentary or otherwise, may tend to criminate him or subject him to a penalty or forefeiture; but he shall not be prosecuted or subjected to penalty or forefeiture for or on account of any action, matter or thing concerning which he may be required to testify or produce evidence, documentary or otherwise, in the course of such investigation, except for perjury committed in such testimony.’ Power was also conferred upon a justice of this court upon application by the Attorney General to compel attendance of witnesses and the giving of testimony as required by the resolves in the same manner and to the same extent as before the court. The time for making report by the Attorney General to the General Court was fixed as May 1, 1930. Appropriation was made for conducting the hearings.

The defendant was summoned as witness to testify at hearings held pursuant to these resolves. He refused to answer certain questions but not on the ground that his replies might tend to criminate him. Then this application was presented. The defendant filed an answer setting up amongst other matters that the resolves were contrary to certain provisions of the Constitution of this commonwealth and in contravention of the due process of law guaranteed to him by the Fourteenth Amendment to the Constitution of the United States. At the hearing before the single justice it was found that the questions asked and to be asked of the defendant were calculated to bring out facts material to the investigation directed to be made by the resolves. The defendant presented requests for rulings, which were denied, and it was ordered that the defendant be required to answer the questions at the hearing before the Attorney General. The case was then reported upon the pleadings, findings, rulings and orders for the determination of this court.

The finding of fact made by the single justice is accepted as true. It is supported by the questions set forth in the application and in the statement of the Assistant Attorney General at the hearing. Thus it appears that the Attorney General expected to elicit from the defendant testimony that he was an employee of a dairy corporation managed entirely by the wife of the Garrett mentioned in the resolves, or was her employee, that the defendant under her directions and the advice of said Garrett delivered milk at places where various forms of vice were practiced and received therefor exorbitant sums of money, which were in truth tribute levied upon vice under the disguise of payment for milk.

The police department of the city of Boston is under the general control and management of a police commissioner for the city of Boston appointed by the Governor, St. 1906, c. 291, as amended. See St. 1885, c. 323. The authority of the police commissioner is plenary to secure efficient police service, subject only to certain standing laws. The police commissioner has large powers relative to retiring from active service and placing upon the pension roll members of the police department of that city, St. 1920, c. 6; St. 1929, c. 3. To enact these statutes was within the power of the General Court under the Constitution. Commonwealth v. Plaisted, 148 Mass. 375, 383-387, 19 N. E. 224,2 L. R. A. 142, 12 Am. St. Rep. 566. The police commissioner thus is an officer of the state. Sims v. Police Commissioner, 193 Mass. 547, 549, 79 N. E. 824;Sullivan v. Lamson (Mass.) 166 N. E. 850. By reason of these statutes the police department of Boston is peculiarly subject to the legislative department of government so far as concerns its establishment and regulation. It follows that the General Court has ample power of amendment and modification of the statutes touching the police department of Boston.

[3][4] It is a familiar principle of constitutional law that every presumption is made in favor of the validity of an act of the Legislature, and that the courts will not refuse to enforce it unless compelled so to do by provisions of the Constitution so plain in their bearing as to prevent any other rational construction. Perkins v. Westwood, 226 Mass. 268, 271, 115 N. E. 411. That principle must be borne in mind in the examination of these resolves. The grant of legislative power is conferred upon the General Court by the Constitution of this commonwealth in ample terms. It includes the enactment and establishment of all manner of wholesome and reasonable laws for the good and welfare of the people and the authority ‘to set forth the several duties, powers, and limits, of the several civil and military officers' of the commonwealth. Part 2, c. 1, § 1, art. 4. In the performance of its legislative functions manifestly the General Court may find it needful to acquire information not possessed by its individual members. Investigations of various subjects by legislative committees are often made to the end that facts relating to the enactment of proposed, or the amendment of existing, statutes may be ascertained and presented in available form for the enlightenment of members of the General Court as a basis for legislation. This method of procedure has been so common as not to require the citation of illustrations. It may be a necessary incident of such method of ascertaining facts to receive evidence and to examine witnesses. The only means of assuring the attendance and testimony of witnesses is to summon them and to compel them to attend and to testify. There is no express grant of this power to the General Court by any words of the Constitution. It is an attribute of the power to legislate and follows as an essential implication of that power. It was so held in Burnham v. Morrissey, 14 Gray, 226, 239, 74 Am. Dec. 676, and has never since been doubted in this commonwealth. It was so decided after earnest and prolonged consideration accompanied by exhaustive discussion and illuminating review of authorities in McGrain v. Daugherty, 273 U. S. 135, 154, 160-176, 47 S. Ct. 319, 71 L. Ed. 580, 50 A. L. R. 1;Sinclair v. United States, 279 U. S. 263, 49 S. Ct. 268, 73 L. Ed. 692.

The record does not disclose the causes leading to the passage of said resolves further than to show that a petition had been filed during the current session of the General Court, accompanied by an order providing for an investigation by a joint legislative committee of substantially the same subject-matter, that after hearing the petitioner was given leave to withdraw, and that subsequently the resolves were introduced and passed. The purpose of the present investigation is not set forth by any recitals by way of preamble or in the body of the resolves. This absence of declaration of the aim of the investigation or of the ultimate use designed to be made of the information gathered, is the basis of a strong argument in behalf of the defendant to the effect that it does not appear that the inquiry is instituted for any legitimate purpose. It is urged that the investigation is directed to the private business of the defendant; that if permitted to go forward it will ‘sweep all our traditions into the fire’ and will further a scheme ‘to direct fishing expeditions into private papers on the possibility that they may disclose evidence of crime.’ Federal Trade Commission v. American Tobacco Co., 264 U. S. 298, 306, 44 S. Ct. 336, 337, 68 L. Ed. 696, 32 A. L. R. 786.

[5][6][7] The proposition is put forward that the power to compel the giving of testimony is...