State ex rel. Hodde v. Superior Court of Thurston County

• Decision Date: 10 May 1952
• Docket Number: No. 32108,32108
• Citation: 244 P.2d 668,40 Wn.2d 502
• Court: Washington Supreme Court
• Parties: . Supreme Court of Washington, en Banc

Page 502

40 Wn.2d 502

244 P.2d 668

STATE ex rel. HODDE et al. v. SUPERIOR COURT OF THURSTON COUNTY et al.

No. 32108.

Supreme Court of Washington, en Banc.

May 10, 1952.

Smith Troy Atty. Gen., George Kahin, S. Harold Shefelman, Sp. Assts. Atty. Gen., Max R. Nicolai, Seattle, of counsel, for relators.

Lycette, Diamond & Sylvester and Josef Diamond, all of Seattle, for respondent.

FINLEY, Justice.

Chapter 36, Laws of 1947, Rem.Supp.1947, § 8207-1 et seq., authorized the creation of the Washington State Legislative Council. The council was first set up and began functioning in 1947. It has been reconstituted and its functions continued by the regular legislative sessions in 1949 and again in 1951. Over a period of years, the council has appointed a subcommittee on state and local government, and certain duties have been delegated to it.

John B. Gillespie, a captain of the police department of the city of Aberdeen, Washington, was served with a subcommittee subpoena on February 28, 1952, requiring him to appear subsequently at a hearing scheduled to be held by the subcommittee on state and local government, and 'then and there to testify as a witness.' He obtained a temporary restraining order from the Thurston county superior court. It enjoined further investigating activities and the holding of public hearings by the subcommittee relative to local crime conditions in Aberdeen. After hearing argument on the matter, the Honorable Charles T. Wright, judge of the superior court for Thurston county, Washington, indicated an intention to issue a temporary injunction, or an injunction pendente lite, to prevent further legislative investigation and the holding of public hearings relative to local crime conditions in Aberdeen and elsewhere. Thereupon, counsel for the subcommittee applied to the supreme court for a writ prohibiting issuance of the injunction as contemplated by the superior court for Thurston county. The chief justice of the supreme court issued an alternative writ of prohibition on March 21, 1952. It required that cause be shown why the permanent writ of prohibition should not issue as prayed for by counsel for the sub-committee.

The question in this case is whether a writ of prohibition should issue, permanently preventing the Thurston county court from enjoining the investigation and the public hearings relative to local crime conditions at the county and city level, and particularly as such hearings might affect Mr. Gillespie.

Counsel for Mr. Gillespie contends that the legislative counsel and its subcommittee on state and local government are not validly constituted because the statute authorizing the creation of the council provides for its creation and continuance merely between sessions of the legislature, and that two special sessions of the legislature were held in 1951 after the regular 1951 session. Specifically, the contention of Mr. Gillespie is that a special session of the legislature intervened after the adjournment of the regular 1951 session; that the council, created at or during the regular 1951 session, therefore ended or ceased to exist validly at the beginning of the first special session in 1951; that thereafter, the council, as such, was not reconstituted at either the first or second extraordinary sessions of the legislature in 1951, that members were not appointed to the council, and that the council, at present, is legally non-existent.

Counsel for Mr. Gillespie further contends that the language of chapter 36, supra, is not broad enough in scope to authorize the program of investigation and the public hearings contemplated by the subcommittee relative to local crime conditions. It is further contended that Gillespie has been served with a subpoena requiring him to testify on matters concerning local government and as to private, personal and business affairs. It is also contended by him that being required to testify as a witness at the contemplated public hearing, as it will be conducted, will constitute an invasion of his rights of privacy. Finally, it is contended that, under the circumstances in this case, a writ of prohibition does not lie for two reasons: (1) That an adequate remedy at law is available; and (2) that the Thurston county superior court would not be acting without or in excess of jurisdiction in enjoining the activities of the subcommittee.

We think that the contentions made by counsel in behalf of Mr. Gillespie--and technically, in behalf of Judge Wright--are without merit, and that the permanent writ of prohibition should issue.

A discussion of the historical background of legislative investigations and hearings may be of some interest and asssistance before we consider separately the contentions of Mr. Gillespie, referred to above. Much of such historical background relates to activities of committees of the United States Congress. Precedents for legislative investigations may be found in very early records of the British Parliament and in the records of Legislative bodies of the American colonies. Potts, Power of Legislative Bodies to Punish for Contempt, 74 U. of Pa.L.Rev. 691, 708 et seq. (1926). The first legislative investigation by the United States Congress (conducted by the House of Representatives) occurred in 1792 when the conduct of military affairs, and the expenditure of appropriations in connection therewith, by General St. Clair was investigated. 2 Ann.Cong. 490 (1792). General Andrew Jackson and his Florida campaigns was the target of the first Senate investigation. 33 Ann.Cong. 76 (1818). For many years, various committees of Congress have investigated a great variety of matters pertinent to affairs of government or contemplated legislation. No complete tabulation of the investigations exists. It is estimated that there have been upwards of six hundred investigations made by Congress. McGeary, Congressional Investigations: Historical Development 18 University of Chicago Law Rev. 425. It is a fact that for almost a hundred years following the St. Clair inquiry Congressional investigations flourished, 'virtually free from judicial supervision or control.' Morgan, Congressional Investigations and Judicial Review: Kilbourn v. Thompson Revisited, 37 Calif.L.Rev. 556 (1949). The first significant judicial obstacle or restraint regarding Congressional investigations is found in the decision of the United States Supreme Court in Kilbourn v. Thompson, 103 U.S. 168, 26 L.Ed. 377, wherein plaintiff Kilbourn's contentions were upheld, and the court criticized the resolution by which the Congressional committee was created for its failure to contain a 'hint of any intention of final action by Congress on the subject.' The court further inquired as to whether the particular investigation was to be 'simply a fruitless investigation into the personal affairs of the individuals * * *,' and said, '* * * If so, the House of Representatives had no power or authority in the matter more than any other equal number of gentlemen interested for the government of their country.' 103 U.S. at pages 194, 195, 26 L.Ed. 377. Under this case, the scope of legislative investigatory power appears to have been narrowed for a period of years until the advent of the decision in McGrain v. Daugherty, 273 U.S. 135, 174, 47 S.Ct. 319, 328, 71 L.Ed. 580, wherein Justice Van Devanter, in an unanimous opinion, said:

'We are of opinion that the power of inquiry--with process to enforce it--is an essential and appropriate auxiliary to the legislative function * * *.

'* * * A legislative body cannot legislate wisely or effectively in the absence of information respecting the conditions which the legislation is intended to affect or change; and where the legislative doby does not itself possess the requisite information--which not infrequently is true--recourse must be had to others who do possess it. Experience has taught that mere requests for such information often are unavailing, and also that information which is volunteered is not always accurate or complete; so some means of compulsion are essential to obtain what is needed. All this was true before and when the Constitution was framed and adopted. In that period the power of inquiry, with enforcing process was regarded and employed as a necessary and appropriate attribute of the power to legislate--indeed, was treated as inhering in it. Thus there is ample warrant for thinking, as we do, that the constitutional provisions which commit the legislative function to the two houses are intended to include this attribute to the end that the function may be effectively exercised.

'The contention is earnestly made on behalf of the witness that this power of inquiry, if sustained, may be abusively and oppressively exerted. If this be so, it affords no ground for denying the power. The same contention might be directed against the power to legislate, and of course would be unavailing. We must assume, for present purposes, that neither house will be disposed to exert the power beyond its proper bounds, or without due regard to the rights of witnesses. * * *' (Emphasis supplied.)

In the Daugherty case the view was expressed that weight should be accorded by the courts to a presumption that a legislative investigating committee would not act invalidly or beyond the scope of its power and authority.

From the foregoing, we must conclude that investigations by legislative committees, as such, are not a recent innovation; that many functions and activities are proper; and that, when acting within the scope of their authority concerning matters reasonably germane to potential legislation, judicial supervision or review is inappropriate. This assumes the usual garden variety of legislative investigation. Exploration into the field of crime may be off the 'norm,' particularly when legislative policy, or the operations of a committee, conflicts with the policy inherent in all branches of government, and in all of our...