Summary
In Haas, the Ohio Supreme Court held unconstitutional an identical Toledo City Charter provision under which the petitioners in that case were punished for contempt. Because the plaintiffs here were not actually so punished, the present trial court concluded that it was precluded from passing on the constitutionality of Section 63, as a justiciable controversy did not exist, plaintiffs lacked standing, and the case was not ripe for review.
Summary of this case from Burns v. RiceOpinion
Nos. 21371, 21373 and 21374
Decided April 24, 1929.
Contempt — Power of executive officers limited by statutory, constitutional or charter provision — Charter provision conferring power, without prescribing punishment, not self-executing — Mayors not invested with power to punish by statutes — Sections 3515-37 and 3515-59, General Code.
1. An executive officer has only such power to punish for contempt as has been expressly conferred upon him by legislative act or by constitutional or charter provision.
2. A charter provision that confers upon the mayor the "power to cause the witness to be punished as for contempt", without defining the mode or extent of the punishment, is not self-executing.
3. The provisions of Sections 3515-37 and 3515-59, General Code, are not effective to invest the mayor of a municipality with a power to punish for contempt, for the reason that they do not define the extent of the punishment.
ERROR to the Court of Appeals of Lucas county.
On the 11th day of January, 1928, the mayor of the city of Toledo issued the following order:
"Jan. 11th, 1928.
"J.R. Cowell, Director of Public Safety and/or George W. Ritter, Director of Law:
"I hereby direct that an investigation of the affairs of the Division of Police of the City of Toledo be conducted. You are hereby authorized to conduct such examination.
"Pursuant to this order you will exercise the power granted by Section 71 of the Charter of the City of Toledo, Ohio, to compel the attendance of witnesses and the production of books, papers and such other evidence as you may deem material or essential to such examination, with authority to punish witnesses for contempt.
"W.T. Jackson, Mayor."
The charter of the city of Toledo provides:
"Section 68. General Powers and Duties of the Mayor. It shall be the duty of the mayor to act as the chief conservator of the peace within the city; to supervise the administration of the city's affairs; to see that all ordinances are enforced; to recommend to the council for adoption such measures as he may deem necessary or expedient; to keep the council advised of the financial condition and future needs of the city; to prepare and submit to the council such reports as may be required by that body, and to exercise such powers and perform such duties as are conferred or required by this charter or by statute."
"Section 71. Investigations by Mayor. The mayor may without notice cause the affairs of any department or the conduct of any officer or employe to be examined. The mayor or any person or persons appointed by him to examine the affairs of any department or the conduct of any officer or employe shall have the same power to compel the attendance of witnesses, and the production of books and papers and other evidence, and to cause witnesses to be punished for contempt, as is conferred upon the council."
"Section 58. Investigations by Council. The council, or any committee thereof duly authorized by council to do so, may investigate the financial transactions of any office or department of the city government, and the official acts and conduct of any city official, and by similar investigations may secure information upon any matter within its competence as a legislative body. In conducting such investigations the council, or any committee thereof, may compel the attendance of witnesses and the production of books, papers and other evidence, and for that purpose may issue subpoenas or attachments which shall be signed by the presiding officer of the council or the chairman of such committee, as the case may be, and may be served or executed by an officer authorized by law to serve subpoenas and other process."
"Section 59. Power to Compel Witnesses to Testify. If any witness shall refuse to testify to any facts within his knowledge, or to produce any papers or books in his possession, or under his control, relating to the matter under inquiry, before the council, or any such committee, the council shall have the power to cause the witness to be punished as for contempt. No witness shall be excused from testifying touching his knowledge of the matter under investigation in any such inquiry, but such testimony shall not be used against him in any criminal prosecution except for perjury committed upon such inquiry."
A subpoena was issued for the defendant in error in each case. The defendant in error Jennings refused to be sworn and refused to testify. The defendant Murphy appeared, was sworn and testified, but refused to return, after an adjournment, for further examination. The defendant La Penas refused to be sworn. Thereupon the investigators, Cowell and Ritter, issued a commitment for each witness, one of which is as follows:
"State of Ohio,"County of Lucas, City of Toledo, — ss.:
To Louis J. Haas, Chief of Police of the City of Toledo:
"You are hereby commanded forthwith to take and place in the City Jail of the City of Toledo, Lucas county, Ohio, Harry Jennings, to answer for contempt for refusing to take an oath as a witness and to give his testimony as a witness in investigation of the Division of Police of the said City of Toledo, being conducted by the undersigned, appointed by the Mayor of the said City of Toledo pursuant to Section 71 of the Charter of said City to conduct such investigation; and you are hereby further commanded to hold the said Harry Jennings in your custody in the said City Jail until such time as he shall purge himself of such contempt by taking such oaths and giving his testimony as a witness in such investigation, but not later than the date when the appointment of the undersigned for the conduct of such investigation shall expire, or the expiration of the term of office of William T. Jackson as Mayor of the City of Toledo, whichever is the earlier in point of time; or until the said Harry Jennings is discharged therefrom by due process of law.
"In Witness Whereof, we have hereunto set our hands this 22nd day of March, 1928.
"[Signed] Jno. R. Cowell, "Geo. W. Ritter."
The other commitments were in substantially the same form.
Each of the defendants in error was taken into custody by Louis J. Haas, chief of police, writs of habeas corpus were issued, hearing had, and the above facts were stipulated. The trial court granted the writs and the judgments were affirmed in the Court of Appeals.
Mr. George W. Ritter, director of law, Mr. Martin S. Dodd, Mr. Dudley F. Smith, and Mr. Edward Lamb, for plaintiff in error.
Messrs. Fraser, Hiett, Wall Effler, Messrs. Christensen Christensen, Mr. Cornell Schreiber, and Mr. Jesse S. Heslip, for defendants in error.
The single question presented here is whether the charter of the city of Toledo, or Sections 3515-37 and 3515-59, General Code (103 O. L., 775, 781), confer the power upon the investigating committee appointed by the mayor to commit the defendants in error in the several cases to imprisonment for contempt.
The record does not disclose any action by the council of the city authorizing or requiring the mayor or the committee to make an investigation of the division of police. The investigation, therefore, must be considered as an investigation by the executive department, as distinguished from the legislative department. This distinction is significant, since there abides in legislative bodies and courts an inherent power to punish for contempt, which does not abide in an executive officer or a committee appointed by him to investigate in his behalf or stead.
It will be noted that by the provisions of Sections 58 and 59 of the charter the power to punish for contempt is attempted to be conferred upon the council, and that by Section 71 of the charter the same power is attempted to be conferred upon the mayor, and any committee appointed by him. However, the power conferred upon the mayor by the charter does not purport to confer upon him all the power to punish for contempt which the council may possess, but only that power that is conferred upon council by the charter — a power that is defined as a "power to cause the witness to be punished as for contempt," without in any manner defining the mode or extent of such punishment.
We have not been able to find any reported case that discusses or decides the question of the effect of an attempt to confer such power without defining the mode or extent of punishment. There are many cases that discuss and decide that legislatures and courts have inherent power to punish for contempt, and, in the exercise of such power, have the same inherent power to determine the mode and extent of such punishment, notably the case of McGrain v. Daugherty, 273 U.S. 135, 47 S.Ct., 319, 71 L.Ed., 580, 50 A. L. R., 1, and the cases therein cited, and, in this state, the cases of Hale v. State, 55 Ohio St. 210, 45 N.E. 199, 36 L.R.A., 254, 60 Am. St. Rep., 691, and State, ex rel. Turner, Atty. Gen., v. Albin, 118 Ohio St. 527, 161 N.E. 792. But, where the power is dependent upon legislative or constitutional enactment or provision, necessarily the measure of the power must be found in the language of the act or provision conferring the power; and, since the exercise of the power involves the personal liberty of the one against whom the power is sought to be exercised, it must be strictly construed, and the power limited to that expressed in the language of the act or provision conferring such power. And in that respect the reported decisions, to the effect that a legislative act is unenforceable which defines, denounces, and prohibits certain conduct, without providing the mode and extent of punishment for its violation, are applicable; the description or definition of the mode and extent of punishment being as much a legislative function as the definition and prohibition of the conduct. People v. McNulty, 93 Cal. 427, 26 P. 597, 29 P. 61; McNulty v. California, 149 U.S. 645, 13 S.Ct., 959, 37 L.Ed., 882; In re Ellsworth, 165 Cal. 677, 133 P. 272; Rosenbaum v. State, 4 Ind. 599; Cribb v. State, 9 Fla. 409; People v. Lunn, 81 Misc. Rep., 476,143 N.Y. S., 401; Holmes v. United States (C.C.A.), 267 F., 529.
While none of the cases above cited was a case of contempt, and all were cases where an attempt was made to punish for a crime or misdemeanor, since the effect of the commitment of a person to prison for contempt is to deprive him of his liberty, and, whatever its purpose, results in a punishment of the person committed, it would seem, as related to an officer having no inherent power to punish for contempt, that those decisions are analogous to the question here involved.
We therefore reach the conclusion that Section 71 of the charter is not self-executing, because it does not provide the mode or extent of punishment that may be imposed by the mayor or by any committee appointed by him.
Section 3515-37, General Code, provides: "Any person or persons appointed by the mayor to examine the affairs of any department, officer, or employe, shall have the same power to compel the attendance of witnesses and to compel the production of books, papers and other evidence and to punish for contempt, as is conferred upon the council or committee thereof, by this act."
Section 3515-59, General Code, provides: "And if any witness shall refuse to testify * * * before the council or any such committee, the council shall have power to commit the witness to prison for contempt."
It is claimed by the plaintiff in error in the several cases that, since the imprisonment imposed upon the defendant in error in each case was not for the purpose of punishment, but was only for the purpose of coercion and enforcing obedience to the lawful command of the committee, the power conferred by those sections, "to commit the witness to prison for contempt," sufficiently defined the penalty and empowered the committee to commit the several defendants in error to the city prison until they complied with the command of the committee to appear, be sworn, and testify, or signified their willingness to comply with such command.
There is a distinction between a civil contempt and a criminal contempt, in that the commitment for a civil contempt is coercive in character only, whereas a commitment for a criminal contempt is punitive.
If the courts were privileged to construe liberally the power attempted to be conferred by these sections, we might well hold that, since the purpose of the commitment of these defendants to prison was only to coerce them to obey the lawful command of the committee, the sections contemplated the extent of the imprisonment to be until such time as the witnesses so obeyed, or signified their willingness to obey; but courts are not so privileged to construe statutes that may result in depriving persons of their liberty, regardless of the end sought to be accomplished by such statute, but, on the contrary, are required to construe statutes penal in effect strictly, so as to limit the penalty to that exactly expressed in the language defining the penalty; the effect upon the individual against whom the power is exercised being the same, whether he be imprisoned for the purpose of coercion or whether he be imprisoned for the purpose of punishment.
Sections 3515-37 and 3515-59, General Code (103 O. L., 775, 781), are subject to the same infirmity as are Sections 71, 58, and 59 of the charter.
Judgment affirmed.
KINKADE, JONES, MATTHIAS, DAY and ALLEN, JJ., concur.