Cabot v. Corcoran

• Decision Date: 16 December 1954
• Citation: 332 Mass. 44,123 N.E.2d 221
• Parties: Charles C. CABOT and others v. Michael B. CORCORAN.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

Page 221

123 N.E.2d 221

332 Mass. 44

Charles C. CABOT and others v. Michael B. CORCORAN.

Supreme Judicial Court of Massachusetts, Suffolk.

Argued Oct. 7, 1954.

Decided Dec. 16, 1954.

Thomas J. McArdle, Boston, for petitioners.

James W. Kelleher, Boston, Robert K. Lamere, Boston, for respondent.

Before QUA, C. J., and LUMMUS, WILKINS, WILLIAMS and COUNIHAN, JJ.

QUA, Chief Justice.

This petition was filed in the Superior Court by the members of a special commission established under c. 100 of the Resolves of 1953 and 'revived' by c. 80 of the Resolves of 1954 for the purpose of investigating the existence and extent of organized crime and organized gambling and related matters.

The prayers are that the respondent be ordered to answer forty questions which he refused to answer on the ground of self-incrimination when he was summoned before the commission, all in reference to lottery tickets, lotteries, and related matters, and that he be ordered to answer such other questions as may be put to him relating to lottery operations, including questions as to the identity of others connected with him in such operations and questions concerning violation of the gambling laws by him and by others associated directly or indirectly with him and such other questions as may be put to him concerning the existence and extent of organized crime and gambling in the Commonwealth.

The facts are agreed. The judge reported the case without decision.

The resolve creating the commission was duly enacted, and was approved by the Governor on July 4, 1953. The commission was to consist of two members of the Senate, three members of the House of Representatives, and two persons to be appointed by the Governor. Its purpose was stated to be to investigate as a basis for legislative action the existence and extent of organized crime and organized gambling within the Commonwealth and other specified matters relative thereto. The resolve provided that the commission might require the attendance and sworn testimony of witnesses and the production of documents, and that any justice of this court or of the Superior Court might upon application of the commission compel the attendance of witnesses and the giving of testimony before the commission 'in the same manner and to the same extent as before said courts.' It further provided, 'No person shall be excused from attending and testifying in the course of such investigation, or from producing any 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 forfeiture; but he shall not be prosecuted or subjected to penalty or forfeiture 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.' The commission was authorized to employ legal, expert, clerical and other assistants, and the sum of $10,000 was appropriated for the purposes of the investigation. The resolve contained the following paragraph: 'Said commission is hereby further directed to report to the general court the results of its investigations and its recommendations, if any, together with drafts of legislation necessary to carry such recommendations into effect, by filing the same with the clerk of the senate from time to time but not later than the first Wednesday in March, nineteen hundred and fifty-four.'

1. The first question is whether the commission was in existence and in possession of its powers on March 31, 1954, when the respondent appeared before it and refused to answer the questions, claiming his privilege under art. 12 of the Declaration of Rights not to 'be compelled to accuse, or furnish evidence against himself.' We feel constrained to answer this question in the negative. The first Wednesday in March, 1954, the date by which the commission was directed by the resolve to report, fell on March 3, 1954. It is true that on February 24, 1954, the General Court in concurrence adopted an order extending to May 26 the time within which the General Court would receive the final report of the commission, but this order was never submitted to or approved by the Governor. The original resolve, c. 100, was in effect a statute, and an important one. It was enacted by both houses and approved by the Governor. It not only set up the commission but it bestowed upon the commission broad power to affect the constitutional liberty of the citizen by requiring him to incriminate himself in return for immunity from prosecution. It may be that the General Court could by concurrent order such as that of February 24 decide to 'receive' such reports as it saw fit, but nothing short of another statute passed by both houses and approved by the Governor would suffice to continue in effect the power of the commission to compel under statutory immunity the giving of testimony which without the immunity could not be compelled under the Constitution. Matter of Doyle, 257 N.Y. 244, 257-258, 177 N.E. 489, 87 A.L.R. 418. It is also true that by c. 80 of the Resolves of 1954, approved by the Governor on May 26, 1954, after the report to this court in the present proceeding had been filed in the Superior Court, the commission was 'revived' with its original powers and directed to report not later than the last Wednesday of January, 1955. But it seems self-evident that a subsequent revival of the commission cannot render the respondent amenable to court action to compel him to testify on account of, or punishable for, refusing to testify at a time when the commission had no power to summon him or to grant him immunity if he did testify.

But it is argued that the time for filing the commission's report limited in the original resolve, c. 100 of 1953, was directory only and did not terminate the existence of the commission. Undoubtedly many specifications in various statutes of the times for the performance by public officers of certain acts are directory and not mandatory, so that such acts can legally be performed after the expiration of the times specified. But we do not believe that legislative understanding and practice in this Commonwealth will permit the limitation in c. 100 of the Resolves of 1953 to be so treated, notwithstanding the use of the word 'directed.' It is clear that the commission was not intended to become a permanent part of the governmental structure of the Commonwealth. It is not assigned to any of the twenty executive and administrative departments. Its members have no specified terms of office. No provision is made for succession if any memberships become vacant. When then does it end? Can it continue to exercise its extensive rights and powers to employ assistants, spend money, and summon witnesses indefinitely, or for some supposedly reasonable time, or until it decides of its own volition to file a report which it shall designate as final, or until some new statute is passed expressly terminating its existence' What if some or all of the members of the commission appointed from the Senate or the House of Representatives sentatives should cease to be members of those bodies' An examination of the bound volumes of the Acts and Resolves for the years 1952 and 1953 discloses that in those two years alone no fewer than twenty-eight special commissions were created to investigate and report to the Legislature and no fewer than fourteen resolves were enacted reviving such commissions previously created, all containing provisions fixing the time for filing reports similar to the provision in c. 100 of the Resolves of 1953. We cannot believe that the Legislature intended that each of these special commissions could ignore the time fixed for report and thereby continue itself in existence for an undetermined period. The very purpose of each of those commissions is to investigate and report. When it has reported it has nothing more to do. Why then should not the time fixed for report be taken as the time when it is intended the commission shall cease to exist? The number of resolves reviving such commissions seems to show that the Legislature itself takes the view that the commission is dead when the time fixed for its report has expired.

2. But this does not end the case. The commission has now been revived by c. 80 of the Resolves of 1954, and will probably again attempt to secure evidence from the respondent. The respondent in his answer alleges the existence of a controversy between him and the commission and prays for a declaratory decree. The petitioners also request such a decree. We therefore proceed to consider further questions.

The respondent insists that the immunity provisions of the resolves are insufficient because they do not and cannot give him immunity against prosecution for Federal crimes. We are of opinion, however, that art. 12 of our Declaration of Rights...