Nelson v. Wyman

• Decision Date: 23 June 1954
• Citation: Nelson v. Wyman, 99 N.H. 33, 105 A.2d 756 (N.H. 1954)
• Parties: NELSON v. WYMAN, Atty. Gen.
• Court: New Hampshire Supreme Court

Page 756

105 A.2d 756

99 N.H. 33

NELSON v. WYMAN, Atty. Gen.

Supreme Court of New Hampshire.

Argued Jan. 22, 1954.

Decided April 30, 1954.

Rehearing Denied June 23, 1954.

McLane, Davis, Carleton & Graf, Stanley M. Brown, Manchester, for plaintiff.

Louis C. Wyman, Atty. Gen., Warren E. Waters, Deputy Atty. Gen., George F. Nelson, Arthur E. Bean, Jr., Richard C. Duncan, Asst. Attys. Gen., Elmer T. Bourque, Law Assistant, Stuart Conner, Sp. Asst. to Atty. Gen., for defendant.

GOODNOW, Justice.

Under the provisions of a joint resolution adopted by the Legislature of this state in 1953, Laws 1953, c. 307, the Attorney General was authorized and directed 'to make full and complete investigation with respect to violations of the subversive activities act of 1951 and to determine whether subversive persons as defined in said act are presently located within this state'. In connection with this investigation, the Attorney General was authorized 'to require by subpoena * * * the attendance of such witnesses and the production of such * * * documents, * * * as he deems advisable' and 'to make public such information received by him, testimony given before him, and matters handled by him as he deems fit to effectuate the purposes of this resolution'. He was directed 'to proceed with criminal prosecutions under the subversive activities act whenever evidence presented to him in the course of the investigation indicates violations thereof' and to 'report to the 1955 session * * * the results of this investigation, together with his recommendations, if any, for necessary legislation'. As a preliminary to the investigation to be conducted by him under this resolution, the Attorney General adopted certain rules of procedure, a copy of which was given to the plaintiff when she was summoned to appear as a witness. These rules provide in part that the examination of witnesses shall be in executive session except in extraordinary circumstances, unless a public hearing is requested by the witness, and that 'in lieu' of a public hearing, the transcript of the testimony of witnesses who invoke the self-incrimination privilege will be made public. During his questioning of the plaintiff, the defendant inquired concerning her membership in certain organizations and her activities in other respects on dates prior to the effective date of the 1951 act. By her exceptions, the plaintiff questions the authority of the defendant to make rules, to hold public hearings or publicize testimony and to inquire concerning matters which occurred prior to 1951 and challenges the validity of the resolution if it permits such publicity as is provided by the defendant's rules and orders or empowers him to inquire as to pre-1951 matters. A consideration of these issues requires first a determination of whether the investigation provided for by this resolution is a legislative inquiry or a criminal inquisition.

It is now clearly recognized that the Legislature has broad and extensive powers to investigate and inquire. Opinion of the Justices, 96 N.H. 530, 531, 73 A.2d 433; State ex rel. Hodde v. Superior Court, 40 Wash.2d 502, 244 P.2d 668; see Tenney v. Brandhove, 341 U.S. 367, 377, 71 S.Ct. 783, 95 L.Ed. 1019; United States v. Rumely, 345 U.S. 41, 73 S.Ct. 543, 97 L.Ed. 770. The investigation provided for by this resolution is concerned with potential threats to the existing machinery of government through subversive activities. Such a subject matter is one of which the Legislature has jurisdiction 'not alone for the selfish reason of self-protection, but for the basic reason that having been established by the people as an instrumentality for the protection of the rights of people, it has an obligation to its creators to preserve itself'. Barsky v. United States, 83 U.S.App.D.C. 127, 167 F.2d 241, 246; Dennis v. United States, 341 U.S. 494, 501, 71 S.Ct. 857, 95 L.Ed. 1137. It is of little importance that the resolution in this case fails to state in explicit terms the use to which the Legislature intends to put the information gained by it from the investigation since it plainly relates to a subject matter into which the Legislature has authority to inquire. McGrain v. Daugherty, 273 U.S. 135, 178, 47 S.Ct. 319, 71 L.Ed. 580; In re Chapman, 166 U.S. 661, 670, 17 S.Ct. 677, 41 L.Ed. 1154. It specifically directs the Attorney General to report to the Legislature the results of this investigation and his recommendations as to any necessary legislation, thus indicating with sufficient clarity a legislative purpose that a subject matter properly within its jurisdiction be investigated with a view to providing it with information upon which further action by it may be predicated.

The fact that the resolution requires an investigation with respect to violations of law as well as a determination of 'whether subversive persons as defined in said act are presently located within the state' does not remove the inquiry from the category of a legislative investigation. The inquiry is not confined to an investigation of violations of the act but includes a determination of whether there are presently in this state those persons whose acts are not criminal but who are classified as subversive persons because they either, not 'knowingly and willfully', are committing, attempting to commit, or aiding in the commission of acts intended to overthrow or alter existing government by force or violence, Laws 1951, c. 193, § 1, or are advocating or teaching the commission of such acts, § 1, even though they do not do so 'knowingly and willfully' 'under such circumstances as to constitute a clear and present danger', § 2, or are members of subversive organizations not knowing them to be such, §§ 1, 3.

So far as it requires an 'investigation with respect to violations' of the act, the resolution in effect seeks to discover through inquiry whether violations of the 1951 act have occurred and if so the nature and extent of such violations, not merely the identity of those who have violated it. It is not alone when specific violations of the act are evidenced by that proof required for criminal indictment that a report thereof is to be made. If information is acquired which points to the existence of violations of the act, by persons known or unknown, with sufficient clarity to form a basis for decision as to future legislative action, the Legislature is to be informed. Bowers v. United States, 92 U.S.App.D.C. 79, 202 F.2d 447, 448. The resolution is not aimed at providing assistance in the criminal prosecution of a particular individual, See Ward Baking Co. v. Western Union Telegraph Co., 205 App.Div. 723, 200 N.Y.S. 865, or those involved in a particular criminal occasion. Having made certain acts unlawful and having classified certain persons as subversives by its 1951 act, the Legislature seeks through this investigation to secure general information as to the results of that legislation. In the course of the investigation, information will be sought from witnesses upon which such facts can be determined. No sound basis can exist for denying to the Legislature the power to so investigate the effectiveness of its 1951 act even though, as an incident to that general investigation, it may be necessary to inquire as to whether a particular person has violated the act. Eggers v. Kenny, N.J., 104 A.2d 10; State ex rel. Hodde v. Superior Court, 40 Wash.2d 502, 244 P.2d 668; Attorney General v. Brissenden, 271 Mass. 172, 171 N.E. 82. When the investigation provided for is a general one, the discovery of a specific, individual violation of law is collateral and subordinate to the main object of the inquiry. In re Di Brizzi, 303 N.Y. 206, 216, 101 N.E.2d 464. The existence of such a possibility does not change the investigation from a legislative to a criminal one.

Having determined that an investigation should be conducted concerning a proper subject of action by it, the Legislature's choice of the Attorney General as its investigating committee, instead of a committee of its own members or a special board or commission, was not in and of itself determinative of the nature of the investigation. His position as the chief law enforcement officer of the state did not transform the inquiry which was otherwise legislative into executive action. When the legislature chooses to delegate its power of inquiry for the purpose of ascertaining facts upon which it may decide to take action, we see no distinction in principle between the delegation of that authority to the Attorney General and its delegation to a committee or board. Attorney General v. Brissenden, 271 Mass. 172, 171 N.E. 82.

Some stress is laid upon the directive contained in the resolution that the Attorney General shall 'proceed with criminal prosecution under the subversive activities act whenever evidence presented to him in the course of the investigation indicates violations thereof' as expressive of a legislative purpose that the investigation be a criminal inquiry. Without such a directive, this duty plainly devolved upon the Attorney General, whether the evidence was secured by him personally through the investigation, relayed to him from an investigation conducted by others, or received by him from any other source. The Legislature's purpose that the Attorney General should 'report to the 1955 session * * * the results of this investigation, together with his recommendations, if any, for necessary legislation' is clearly expressed. The additional directive concerning prosecution of discovered violations neither adds to nor subtracts from the plainly worded purpose for which the Legislature caused the investigation to be made. McGrain v. Daugherty, 273 U.S. 135, 47 S.Ct. 319, 71 L.Ed. 580.

Among the matters as to which the Attorney General was directed to inquire were the commission of, or attempts to commit, acts intended to overthrow the government by force or violence after August 1, 1951,...