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mill was stopped, but were not informed of the special Roper, Ellis B. & E. (Q. B.) 84; Bowadale v. Burnton, purpose for which the broken shaft was desired to be 8 Taunt. 535; Passinger v. Thorburne, 34 N. Y. 634; forwarded. They were not told the mill would remain Flick v. Weatherbee, 20 Wis. 390; Sneed v. Foard, 1 E. idle until the new shaft would be returned, or that the & E. (Q. B.) 602; Horne v. Midland Ry. Co., 7 L. R. C. new shaft could not be manufactured at Green wich P. 583; $. C., 8 id. 131. until the broken one arrived to serve as a model. If these special circumstances be unknown - not There was delay beyond the two days in delivering the communicated-then they are not the natural resuit of broken shaft at Greenwich, and a corresponding delay the breach, for they did not result from it in the usual in restarting the mill. No explanation of the delay course of things. If however they are communicated was offered by the carriers. The suit was brought to they become an implied element of the contract, and recover damages for the lost profits of the mill, caused parties are presumed to contract in reference to such by the delay in delivering the broken shaft. The judg- special circumstances. Many illustrations of this rule ment of the court was announced by Baron Alderson. might be given. We will name but few. A carrier reHe said: “We think the proper rule in such a case as ceives a package for transportation, having the appearthis is—where two parties have made a contract, which ance of being of but little value. Nothing about it to one of them has broken, the damages which the other show it requires special care or tender handling. If party ought to receive in respect to such breach of con- he give it such attention as such packages usually retract should be such as may fairly and reasonably be quire for their preservation he will not be liable for considered either arising naturally, i. e., according to the unknown extra value it may possess. An agent the usual course of things, from such breach of con- receives money to be deposited in bank, the object betract itself, or such as may reasonably be supposed to ing to meet a paper maturing. It is necessary to avoid have been in contemplation of both parties at the protest that the money be in bank by a given hour, but time they made the contract, as the probable result of the agent is not informed of it. He fails to deliver cho the breach of it. Now if the special circumstances money in time, the paper goes to protest, and the under which the contract was actually made were credit of his principal is ruined. The agent is not recommunicated by the plaintiffs to defendants, and sponsible for the loss, for he neither expressly nor imthus known to both parties, the damages resulting pliedly contracted in reference to the duty which alone from the breach of such contract, which they would could have prevented the injury. reasonably contemplate, would be the amount of in- What is here last said is our understanding of the jury which would ordinarily follow from a breach of rule declared in Hadley v. Baxendale. The two rules contract under these special circumstances, so known are distinct, operate in different fields, and to treat and communicated. But on the other hand, if these them together necessarily leads to confusion. In a special circumstances were wholly unknown to the very carefully prepared, learned note to the 7th edition party breaking the contract, he, at the most, could of Sedgwick on Damages, vol. 1, p. 226, is this lanonly be supposed to have in his contemplation the guage:.“ The rule in Hadley v. Bazendale, as we have amount of injury which would arise generally, and in seen in the text, is that the plaintiff is entitled to rethe great multitude of cases not affected by any spec- cover (1) such damages as may fairly and substantially ial circumstances from such a breach of contract." be considered as arising naturally-i. e., according to

The first thought which suggests itself in the peru- the usual course of things—from the breach of consal of the foregoing language is, that it declares two tract itself; or (2) such as may reasonably be supposed rules for the assessment of damages for a breach of to have been in the contemplation of both parties at contract. First, where there are no special circum- the time they made the contract as the possible result stances in the case to distinguish it from the great of the breach." mass of contracts of th same kind. In all such cases The rule, or rather rules, declared in Hadley v. Baxthe damages recoverable are such as naturally and endale, as interpreted in the note to Sedgwick, is not generally would result from such breach “according difficult to be understood. It furnishes a standard of to the usual course of things." The shipment in this measurement in ordinary transactions—those marked case was of a broken casting usually valuable as old by no special circumstances. The subject of the coniron to be recast into something else. It was not the tract, or nature of the service contracted for, generally case of a commodity whose form, appearance and con- suggests the use for the one or the purpose of the dition indicated nothing. Its natural appearance- other. The damage which would suggest itself as the that which would strike the general beholder-was natural result, according to the usual course of things, that it was useful, and only useful as old iron. Thus of a breach of such contract, would be the loss of the considered, its only appreciable value was its market- one and the failure to enjoy the other as they thus apable quality; and the damage which the shipper would peared. Suppose however there be special circumsuffer from delay in its delivery would, according to stances which impart to the subject or service a value the usual course of things, be the delay in realizing its and importance their appearance does not indicate. proceeds, and a fall in the market price, and if the This is outside of the usual course of things, and falls market should give way between the time it should within Baron Alderson's second rule, which requires have been delivered according to contract and the time that the party sought to be charged shall have notice it was actually delivered. This is a rule of very gene- of such special circumstances when he entered into the ral application in commercial dealings; a rule for the contract. A huilder undertakes to erect and completo assessment of damages in very many breaches of con- a dwelling by a named day. If no special circumtract. Of course it has exceptions. If the injury or stances are communicated to him when he enters into alleged lost profits be speculative or so contingent that the contract, the measure of liability to which he will no reasonably certain rule can be declared for their

be exposed, if he fails to complete the house by the measurement then they cannot be recovered on that

day named, is the value of the lost use the employer account. King v. Reynolds, at this term; w. U. Tel.

suffers by the delay if such damages can be shown by Co. v. Shotter (Ga ), Cent. L. J., March 21, 1884.

any rule of proximate certainty. Suppose however The second rule is where there are special circum- the house has been agreed to be let for a term on a valstances in the contract and its observance, which take uable lease, on agreement to let in the tenant on the it out of the usual course of things. Very many con- named day, and the contractor has notice of such tracts have this character. The following are of this lease. If he fail to complete the house by the day class: Ill. Cent. R. Co. v. Cobb, 64 Ill. 128; Booth v. named, and the landlord thereby loses his tenant and Spuyten Duyvil R. M. Co., 60 N. Y. 487; Randall v. the profits of his lease, the contractor will be liable for



Buch lost profits. This by reason of the special cir- We are aware that the language or phrase we have cumstances communicated.

been criticising has been repeated and re-repeated in In Hadley v. Baxendale it is said of damages that many judicial opinions. It has come to be almost a may be recovered on a breach of contract, that they stereotyped phrase; so general that it may appear to should be such as may fairly and reasonably be consid- be temerity in us to question its propriety. We think ered either arising naturally, i. e., according to the however, it is in itself inapt and maccurate, and that usual course of things, from such breach of contract its import has been greatly and frequently misunderitself, or such as may reasonably be supposed to have stood. It is often employed in opposition to or as the been in the contemplation of the parties at the time synonym of that other qualifying clause--the natural they made the contract, as the probable result of the result of, or in the usual course of things. We think breach of it."

this a great departure from the sense in which BaWhat is meant by the words in contemplation of ron Aldersca intended it should be understood. Altothe parties? It would seem that contracting parties, gether we think it obscure and misleading, and that an certainly honest ones--do not contemplate the breach attempt to install it as one of the canons has caused of their contracts when they enter into them, and many, very mauy, erroneous rulings. hence cannot contemplate the consequences of a But even if we retain the expression we have been breach.

commenting on as a qualifying property of recoverable Martin, one of the barons of exchequer who par- damages, it is a rule by no means of universal applicaticipated in the decision in Hadley v. Baxendale, in tion. Speaking of the decision in Hadley v. Bazenthe later case of Wilson v.Newport Dock Co., 1 L. R., dale, Ch. B. Pollock, in Newport Dock Co. v. Wilson, Court of Exchequer 177, used this language: “I do not 1L R. (Exch.) 177, said: “It is quite true that the adopt the qualifications mentioned by Mr. Baron Ald- case is not applicable to and does not decide every case. erson in the judgment in Hadley v. Baxendale as ap- No rule, po formula could do that.

No preplicable to every case. They may have been perfectly cise, positive rule can embrace all cases.” It may be right there, but they are not of universal application. and doubtless is well adapted tv cases like Hadley v.

* And he (Baron Alderson) proceeds to say: Baxendale, where the subject of the contract, rela'Such as may reasonably be supposed to have been in tively insignificant in its primary aspect and apparent contemplation of both parties at the time they made purpose, was yet, by special circumstances, magnified the contract as the probable result of the breach of it.' into much greater dimensions. This rule was propNow this may properly enough be taken into conside-erly applied in that case, because a knowledge of the ration in the case of carriers and their customers, but extrinsic facts would naturally stimulate diligence. in the bulk of broken contracts it has no application Can such a rule with any propriety be applied to transwhatever. Parties entering into contracts contem- actions or lines of dealing, in which the same measure plate that they will be performed, and not broken; of diligence is required in each act or function, withand in the infinite majority of instances the damages out regard to the quantum of interest to be affected by to arise from the breach never enters into their con- it? Legal dogmas should rest on some principle which templation at all."

can be understood and appreciated. So, iu Collins v. Stephens, 58 Ala. 543, we said: “The The telegraph is a modern discovery. Speedy commeasure of damages in a suit for a breach of contract. munication is its boasted merit, the object of its use.

is the injury which results proximately It is much more expensive than communications by from the breach. And whether the parties at the mail, and therefore would not be resorted to is time were making of the contract contemplated or had in view not of its very essence. Its tariff of rates is graduated the damage to result from the breach of such contract by the number of words employed, not by the pecuor not does not in the least vary the question or the niary value of the telegram, nor the magnitude of the measure of recovery."

interest it concerns. With few exceptions imposed To test the question, let us suppose that in a suit for by public exigency, it is governed by the law of the a breach of contract the plaintiff makes proof of dam- mail. Messages must be sent in the order of their age reasonably certain as to amount, which is the nat- handing in, without favor or partiality, without delay ural result-that is, the result according to the usual and without reference to the value of the interests to course of things—of the breach of contract. Would be affected. Shear. & Redf. on Neg., $ 557; Barron v. any one attempt to defend on the ground that such Lake Erie Tel. Co., 1 Am. Law Reg. 635; Berney v. N. damages were not in fact in contemplation of the par- Y. & W. Tel. Co., 18 Md. 341; W. U. Tel, Co. v. Ward, ties when they entered into the contract?

23 Ind. 377; Leonard v. N. Y., A. & B. Tel. Co., 41 N. Mr. Baron Alderson's language should be interpreted Y. 544; Squire v. W. U. Tel. Co., 98 Mass. 232; Parks in the light of the facts he was dealing with. Plaintiffs v. Alta Cal. Tel. Co., 13 Cal. 422. were claiming a recovery, based on circumstances that A failure from uncontrollable causes, such as elecwere special and exceptional. Those circumstances were trical storms, etc., would cause the compauy's delay not suggested, nor likely to be suggested, by the ap- in delivery; but no such excuse is shown here. In pearance or nature of the article which was the sub- Scott and Jarnigan's note to section 6, Law of Teleject of the contract. Hence the injury complained of graphs, commenting on Shields v. W. &N. 0. Tel. Co., would not arise in the natural or usual course of is this language: “Why has the operator any right to things. If the special, ulterior purpose was disclosed, know what the message refers to? Or why the necesthey would then become an element of the duty im-sity of drawing inferences or conjectures in reference posed by the contract. The thing of apparently little thereto? How will such knowledge aid him in the disvalue—the transaction of apparently minor importance charge of his obligation to send the message correctly? -would thus be raised to great value and command- What difference does it make in this respect whether ing importance. This enhanced value, this stimulated the message 'conveyed an order to purchase or an acdiligence, Baron Alderson has, as we think, attempted count of sales?' Would such knowledge aid him in to describe as being the damages resulting from a the correct transmission of the message?" They breach“ within the contemplation of the parties.” Is thought the view taken in Shield's case "was not the it not rather a bringing within the contemplation of correct one." We fully concur with Messrs. Scott and the parties, the special facts which magnify the trans- Jarnigan, and hold that the liability of the telegraph action, and, as a consequence, the injury likely to en- company does not depend on the knowledge the opsue from the breach of the contract ?

erator may have of the coutents of the message.


The judgmeut of the Circuit Court is reversed, and witness to the Senate, and on the 27th day of Februthe cause remanded.

ary, 1884, in pursuance of its resolution and by force of [See 45 Am. Rep. 480, 486 n., where all the authori- its warrant issued to its sergeant-at- arms, McDonald ties are collated.-ED.]

was brought before the Senate to answer for his alleged coutempt in refusing to answer the questions.

He was heard by counsel, and the result was that on LEGISLATIVE CONTEMPTS.

the 28th day of February, 1884, the Senate adopted a

resolution adjudging him to be in contempt for reNEW YORK SUPREME COURT, GENERAL TERM, THIRD

fusing to answer "pertinent questions propounded by DEPARTMENT.

the committee, and sentencing him to be imprisoned, MAY 31, 1884.

by the sergeant-at-arms, in the county jail of Albany

county till he would cousent to appear and answer. PEOPLE EX REL. MCDONALD V. KEELER, AS SHERIFF.

Such imprisonment not to extend beyond the final

adjournment of the Legislature. And the keeper Except when engaged in the judicial functions authorized by

of said jail was commanded to receive and keep the Constitution, neither branch of the Legislature has

him. any power to punish as for contempt for a refusal by a

A warrant was then issued by the Senate, sigued by witness to answer questions put to him. The relator was subpænaed to appear and testify as a wit

its president and clerk, directed to said sergeant-atness before a committee of the Senate; acting under the

arms and to the sheriff of Albany county, reciting the advice of counsel, he refused and declined to answer proceedings and commanding them in accordance with sundry questions, retired from the presence of the com- said resolution. mittee and refused to be further examined. Thereafter, Thereupon McDonald was committed to said jail. he was adjudged to be in contempt by the Senate, a war

On the 7th day of March, 1884, McDonald, being then rant was issued for his arrest and he was committed

in custody as aforesaid, applied to Hon. William L. to jail. Held, that the relator was not bound to answer the questions

Learned, a justice of the Supreme Court of the State, put to him, and that he was justified in withdrawing

and obtained a writ of habeas corpus. This was made when the right to have counsel was refused.

returnable before the Court of Oyer and Terminer then Held further, that in the present case, the Senate had neither in session in Albany county. 2 Rev. Stat. (Edmond's

inherent nor conferred power to punish the relator as for ed.) 784, $ 2.2; People ex rel. Phelps v. Fancher, 2 Hun, contempt; his imprisonment was therefore illegal, and he 226. is entitled to his discharge.

On the return of the writ the matter was argued at On the 14th day of January, 1884, the Senate of the length. Mr. Justice Westbrook, holding the Oyer and State of New York passed the following preamble and Terminer, wrote a very able and elaborate opinion. resolution.

In this, after stating his own views to be favorable to “WHEREAS, Grave charges of fraud and irregulari- the position of McDonald, he felt bound by decisions ties have been made from time to time by the public in this State to deny the motion and remand the press, and recently by the Union League Club of prisoner. An appeal was taken to the General Term the city of New York, against Hubert 0. Thompson, and the matter was argued at the General Term of the commissioner of public works in the city of New third department, held at Biughamton in May, 1884. York; and “WHEREAS, These charges have, in the opinion of

T. C. E. Ecclesine and Hamilton Harris, for Mc

Donald. many persons, never been satisfactorily explained and fairly refuted; and

Henry Smith and N. C. Moak, for Sheriff. “ WHEREAS, It is of vital importance to all the tax

F. W. Whitridge and B. F. Tracy, for Senate. payers of the State that the heads of all public LEARNED, P. J. An idea has undoubtedly prevailed, departments should be beyond reproach; therefore be and has had some judicial sanction, that Congress and it

the legislatures of the States succeeded to all, or nearly Resolved, That the standing committee on the all, those powers which were known under the general affairs of cities of this Senate be, and it hereby is, di- name of privileges of Parliament, and which are rected and empowered to investigate the Depart- stated in general language by Blackstone. 1 Bl. Com. ment of Public Works in the city of New York, with 163, et seq. It was in accordance with this idea, that power to send for persons and papers, and said com- in 1870, the Assembly of this State summoned before mittee is hereby authorized to employ a stenographer itself a justice of the Supreme Court to answer for a and such counsel and accountants as it may deem judicial act done by him while sitting as one of the necessary for the thorough discharge of the duties judges of the Court of Oyer and Terminer. Fortuhereby imposed. Such committee to report the result nately the Assembly, in the end, contented itself with of such investigation and its recommendations con- a harmless vote, to the effect that the justice had, cerning the same to the Senate on or before the 15th without bad intention, committed a breach of privilday of April next."

ege. In Matter of Platt Potter, Potter's Dwarris on During the month of February succeeding the date Stat. 573. It is known that the power of the Assemof the passage of the resolution just given, William bly would have been contested, if any attempt had McDonald, in obedience to its subpæna, appeared bo- been made to punish the justice. fore the Senate committee as a witness, and was ex- This idea of inherited privileges, and especially of amined at considerable length in regard to material- | inherited power to punish as for contempt. is set forth gravel, limestone chips, etc.-which he had furnished very fully in Wickelhausen v. Willett, 10 Abb. Pr. 164. to the city. The witness, through his counsel, who It is made also a part of the argument for the respondappeared, as the committee held, only by its courtesy ent in this case (by counsel representing the Senate), and not by right, refused and declined to answer sun- where he insists that the Legislature has succeeded to dry questions designed to ascertain where he had ob- the whole of the parliamentary law of England, so far tained the materials furnished to the city by him, and as it is not withheld by, or repuguant to the Constitualso other questions concerning his business as a dealer tion, including the power to punish for contempt. It is in coal. The witness finally, by advice of counsel, re- urged by the counsel for the respondent that this tired from the presence of the committee and refused power existed in the colonial legislatures and has thus to be further examined.

come down from them to the legislatures of the States, The Senate committee reported the conduct of the And the counsel cites instances of the exercise of this power by the Colonial Council and Assembly of New But without going over the history of colonial auYork. It may therefore be worth while to examine thority, it is enough to say that the counsel for the rethis claim of power.

spondent has cited us to no grant from the English In the case of Doyle v. Falconer, L. R., 1 Priv. Coun. Parliament or from the crown, which conferred upon App. Cas. 328, the matter was examined. It was shown the Colonial Legislature the privileges of Parliament. that a legislative assembly of an English colony does And unless these privileges were expressly given, the not possess the power of punishing a contempt, though power to legislate, as has been shown, carried with it committed in its presence and by one of its members; no power to punish for contempt. We are brought to that such authority does not belong to a colonial house the belief that the exercise of that power, though subof assembly by analogy to the Lexet consuetudo parli- mitted to by the sufferers, and even though supported amenti which is inherent in the two houses of Parlia- by colonial courts, was in violation of the law of Eng. ment or to a court of justice which is a court of re- land as above set forth. Some of the instances cited by cord; a colonial assembly having no judicial functions. counsel would, at this day, be admitted to be illegal by This same doctrine had been previously held in Kiel- every one. ley v. Carson, 4 Moore P. C. Cas. 62, and in Fenton v. It is however urged by the counsel for the respondHampton, 11 id. 347. These cases overruled that of ent that section 35, of the first Constitution of the Beaumont v. Barrett, 1 Moore P. C. Cas. 59, in which State (that of 1778) declared that such parts of the it had been held (as it seems to be here claimed by the common law as formed the law of the colony should respondent's counsel) that the power of punishing for continue; and the counsel urges that this privilege of contempts was inh ut in every assembly that pos- | Parliament was a part of the common law, and heuce sesses a supreme legislative power. It is shown in that it was continued in force. Now it is at least these cases, and the doctrine is again confirmed in doubtful whether the phrase, common law, there used, Kilbourn v. Thompson, 103 U. S. 168, that so far as included the privileges of Parliament. The fundathis power of punishing for contempt belonged to the mental idea of common law, was that it was common House of Commons, it existed, not because that was a to all the subjects of the realm, while privileges of representative body with legislative functions, but be- Parliament, though well established, were exceptional cause it was a part of the high court of Parliament, rights. But however this may be, we have seen, from a judicial body, the highest court of the realm, the cases cited, that the doctrine of the common law which had always possessed this power by ancient (if it be properly so called) was not that every legislausage.

tive body possessed the power of punishing for conThis view is again stated in Speaker v. Glass, L. R., 3 tempt, in case of refusal to answer questions, but that Privy Coun. Cas. 560. In that case Parliament had ex- such power belonged to courts; and that it had come pressly given to a Colonial Legislature the right to de- to the Houses of Parliament as parts of the high court fiue its privileges, etc., provided they did not exceed of the realm. If therefore the Constitution of 1778 those of the House of Commons. The Colonial Legis- continued the law on this point as part of the comlature, under that authority, bad defined its privil- mon law, it gave thereby no authority to punish for eges, etc., to be the same with those of the House of such contempts to the Assembly or Senate to which Commons. It was held therefore that by this act of bodies was giveni simply legislative power (section 2, Parliament, there had been given to that Colonial Constitution 1778). For the Legislature of the State Legislature the same power of punishing for contempt was not Parliament, and was not a court. as is possessed by the House of Commons. Thus the There is another section of that Constitution, seccase recognizes the law, that unless by the express en- tion 9, which declares that the Assembly (not the Senactment of Parliament, a Colonial Legislature had no ate) shall enjoy the same privileges as the Assemblies power of punishing for contempt. That question should of the colony of New York of right formerly did. We be deemed settled.

have already seen, by the decisions of the English Then the inquiry is presented, did Parliament, or courts, that the Colonial Assemblies could not have the English government ever grant to the Colonial enjoyed of right the privileges of committing for conLegislature of New York the privileges of Parliament, tempt in refusing to answer, unless that privilege had or this one of those privileges now under considera- been granted expressly by the English government, tion. We find no such grant. The struggle was and that no such grant is shown. rather to withhold, than to give power. We cannot do The Constitution of 1821 omits any such clause, and better than to quote from the very able and learned merely provides that each house shall be the judge of opinion of Mr. Justice Westbrook in this case, upon the qualifications of its own members. The same is this point:

true of the Constitution of 1846. Thus the somewhat “No such bestowal of authority can be found in the indefinite grant of power, by reference to the powers charter issued by Charles I. to his brother James, of the Assemblies of the colony, contained in the Conduke of York, in 1669, nor in any act of Parliament. stitution of 1778, is taken away. The comment of the It is unnecessary to detail the mode and manner of the revisers of the statutes in their notes (Edmond's ed., government of New York, while under English rule. | Rev. Stat., vol. 5, p. 517) is of no weight, inasmuch as It is enough to state, that instead of the absolute they were not the authors of the Constitution of 1821, power of Parliament being conferred upon the Colonial and as they base their opinion upon Anderson v. Legislature, or upon the people themselves, its laws Dunn, 6 Wheat, 598, which has been overruled by Kit were made subject to royal approval; and even the bourn v. Thompson, ut supra. Hence we may conCharter of Liberties, passed on the 17th day of Octo- clude that the right of the Senate “to punish a citizen ber, 1683, by the Assembly, was vetoed by James (the for contempt of its authority, or a breach of its priv. same duke of York) when he became king, in 1686, and ileges, can derive no support from the precedents and the act of 1691 shared the same fate. Bancroft's practices of the two Houses of the English Parliament, Hist. U. S., vol. 2, p. 412; vol. 3, p. 56; id. p. 101; nor from the adjudged cases in which the English 2 R. L. 1813, note on page 6 of appendix." See also courts have upheld these privileges." Kilbourn v. introduction to New York Civil List, 1883, page 69, Thompson, ut supra. Although that decision was

made in a case arising upon a commitment by the I:1 that Charter of Liberties, the only power claimed House of Representatives, still the argument and the in this respect, is that the representatives shall be the language are appropriate to the present case. The fact judges of the qualifications of their own members, and that the Federal government is one of limited extent may purge their house as they see occasion.

does not, in any way, affect the argument as to the



powers of its legislative bodies, in respect to the mat- must here notice that nothing is gained by calling the ters which belong to Federal control. All legislative act for which a person may be imprisoned according power on matters within the authority of the Federal to that statute, a breach of privilege. It has already government is given to Congress, just as in this State been shown that privileges, as known in the English the legislative power is given to the Senate and As- Parliament, do not necessarily belong to these legislasembly. Whether that gift of power carries with it tive bodies of Senate and Assembly. Whatever authe privileges of the English Parliament is practically thority they have comes from the Constitution. If the the same question in each case, when it is shown that Constitution, fairly construed, gives them authority those privileges belonged to Parliament as a court, and to enact a law of this kind, then the law is valid ; not therefore to every legislative body.

otherwise not. Taylor v. Porter, 4 Hill, 140; Powers v. Another point is to be noticed. The question before Bergen, 6 N. Y. 366. us does not touch, in any way, the power of the Sen- What then is the nature of the punishing for conate, or Assembly, to keep order in its own rooms, to tempt in refusing to answer? It is clearly judicial. It judge of the qualifications of its members and to expel includes the deciding upon a question of fact, viz. : them for improper conduct. To say that they may do whether the alleged act has been committed; and this is but to say that they have the common power of upon a question of law, viz. : whether the inquiry was a peaceable assemblage to keep order and expel dis- material; and the further determination thereon of the orderly persons. That power is not a question here. proper punishment to be inflicted. So the resolution Hiss v. Bartlett, 3 Gray, 468; Cooley Const. Lim. 133; of the Senate shows, under which McDonald was comBradlaugh v. Gossett, L. R., 12 Q. B. D. 271. mitted. It recites that he has been “declared guilty

It has been seen, in the cases above cited, that while and “convicted," and it announces a punishment. denying that a mere legislative assembly, as such, bas The conclusion then is inevitable that the proceeding power to punish for contempt iu refusing to answer was judicial, involving a trial and punishment for questions, the cases have admitted that this power re- wrong-doing. sides in courts. The reason for this, is that while leg- When courts punish a witness for refusing to answer, islation is the establishing of rules for the future, ju- their act is one in aid of a judicial proceeding, viz. : dicial action is the deciding upon the past, and award- the litigation which is then pending. It is also itself a ing punishment or recompense to litigants. There judicial act; a trial before the court then sitting, fore it is necessary that the litigants should be enabled instead of, or it may be, in addition to, a trial before to show to the court, by witnesses, the truth as to some other court. It is done in aid of the interest of the past. Hence the power to punish a refusal to litigants, who have a right to know the facts which the

witness refuses to disclose. It is for their sake that Here then we must notice, that by the Constitution, this right has always been exercised. And this should the Legislature has certain judicial powers. Each always be noticed; that it is the right of the litibranch is the judge of the qualifications of its own gant which is enforced under the name of contempt of members. Article 3, section 10. This power is judic- court. ial in character, though often partisan in fact. There If then this statute be valid, the Legislature cau conis a power to remove certain judicial officers. Article fer upon itself judicial authority to try, convict, and 6, section 11. There is a power of impeachment. punish. We see no warrant for this in the ConstituArticle 6, section 1. These are judicial powers. They tion. It might be that the Legislature could authorimply a decision on past occurrences and a giving ize the governor, in matters committed to him, such judgment accordingly. It may be therefore that for instance, as the granting of pardons, to receive the in all actions of this kind, the Senate and the Assem- testimony of witnesses. Would it be thought a lawbly may rightfully enforce the same power of punish- ful exercise of power to authorize the governor to ing for refusing to answer questions which is exercised punish for contempt, a witness who should refuse to by courts. These cases therefore we exclude from answer? Certain corporations are required to make consideration. The relator was not examined any on oath returns to certain State officers. Could these such case.

officers be vested with a power to punish, as for conAside from these cases, the Constitution gives the tempt, a refusal to make such returns ? Senate and Assembly only legislative power. Judicial We are not here called upon to say that the Legislapower, on the other hand, is vested in the courts ture cannot pass a valid law, requiring witnesses to named in the Constitution and in such inferior courts testify before committees who are engaged in proper as may be created. And it is evident that the grant investigations and declaring a refusal to be a misdeof judicial power to the courts is an implied probibi

The question here raised is as to the power tion of its assumption by the Legislature, except as of a branch of the Legislature itself to punish for the authorized by tbe Constitution. Leggett v. Hunter, 10 violation of such a law. The statutes of every year N. Y. 463.

are full of provisions requiring citizens to do some "All the powers intrusted to government, whether act. The refusal to do the act is usually a misdeState or National, are divided into three grand de- meanor. Can the legislature, or a branch of it, try partments, the executive, the legislative, and judicial. the offender? Certainly not. By what right then can It is also essential to the successful working of this the Legislature assume judicial authority in this case system that the persons intrusted with power in any rather than in any other? one of these branches shall not be permitted to en- But it may be urged that the right to summon a croach upon the powers confided to the others; but witness and to hear testimony necessarily includes a that each shall, by the law of its creation be limited to right to compel the giving of testimony by imprison: the exercise of the power appropriated to its own de- ment. By no meaus. Passing, for the present, the partment and no other.” Kilbourn v. Thompson, ut question to the right of the Legislature supra. It would hardly be claimed that the Legisla- to take testimony for mere legislative purposes, we ture could make itself, or one of its branches, an ap- shall see, that even in courts, the right to punish a pellate tribunal from the Court of Appeals, or that it witness by imprisonment does not always exist; as for could authorize either of its branches to try a person instance, in justices' courts. Code Civ. Pro., $ 2974. ipdioted for murder, or to try a civil action.

The contempts which a justice may punish as criminal It is further claimed on the part of the respondent, are few; and the refusal to testify is not one of them. that under 1 Rev. Stat., m. p. 154, $ 13, sub. 4, the Sen. Section 2870. The aggrieved party is left to his action ate was authorized to imprison the relator. Now we for damages Seotion 2979. And the witness remains



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