#### The State, ex rel. The Robertson Realty Company *v.*Guilbert, Auditor of State.

*Legislative powers*— General *Assembly a unit*— Right *to appoint committees, when*— Their *procedure*— Sections 50 *to*55, *Revised Statutes*— Invalidity *of “Drake" investigating committee*— Con*stitutional law.*

1. The whole legislative power of this state having been conferred by the Constitution upon the General Assembly as a unit and not upon the Senate or House of Representatives acting separately, a single'branch of the General Assembly so acting has no power of independent legislation, except as expressly granted in the Constitution or as necessarily implied in the express grants.

2. Sections So to 55, inclusive, of the Revised Statutes, were not intended by the General Assembly to authorize either branch *2thereof to appoint committees; but were designed to prescribe procedure for committees which may have been constitutionally and regularly appointed.

3. The Constitution of this state contains no express grant of power to either branch of" the General Assembly to appoint a select investigating committee for general legislative purposes; and such power is not necessarily implied from the express grants to each house.

(No. 10092—

Decided October 16, 1906.)

In Mandamus.

This is an original proceeding for mandamus in this court. The petitions and the exhibits which are attached thereto and made part thereof are as follows:

“The relator, The Robertson Realty Company, is a corporation organized under and in accordance with the laws of the state of Ohio, and having its principal office in the city of Cincinnati in said state of Ohio.

“The defendant, Walter D. Guilbert, is the duly elected and qualified, and was at the times hereinafter mentioned, and ever since has been and now is, the legally acting Auditor of State of the State of Ohio.

“On the seventh day of February, 1906, during the regular session of the 77th General Assembly of the State of Ohio, the Senate of said State of Ohio duly adopt.ed Resolution No. 23, by Mr. Espy, entitled, ‘Senate Resolution relative to appointing a committee to investigate charges of corruption existing in the government of the city of Cincinnati and the county of Hamilton,’ a true copy of which resolution is hereto attached, marked ‘Exhibit A,’ and made a part of this petition.

*3“On the twenty-sixth day of March, 1906, during the regular session of the 77th General Assembly of the State of Ohio, the Senate of said State of Ohio duly adopted Senate Resolution No. 30, by Mr. Espy, entitled ‘Senate .resolution relative to the committee appointed to investigate charges of corruption existing in the government of the city of Cincinnati and the county of Hamilton/ a true copy of which resolution is hereto attached, marked ‘Exhibit B/ and made a part of this petition.

“On the first day of March, 1906, the General Assembly of the State of Ohio duly passed and enacted House Bill No. 139, entitled ‘An act to make partial appropriations for the last three-quarters of the fiscal year ending November 15, 1906, and the first quarter of the fiscal year ending February 15, 1907/ which was duly signed by the respective presiding officers of the Senate and of the Blouse of Representatives, and duly approved by the governor of the state of Ohio on the fifth day of March, 1906. Said act of the General Assembly has never been repealed.

“By said act passed as aforesaid on said March 1, 1906, there was duly appropriated for the ‘contingent fund of the Senate for the use of select investigating committees/ the sum of $12,500.00, which sum was duly placed to the credit of said contingent fund of .the Senate of the .State of Ohio, for the use of said select investigating committees, including the committee created by said Senate Resolution No. 23, of which the sum of about $3,500.00 has been expended, leaving at this time in the treasury of the state of Ohio to the credit of said fund and for the uses and purposes *4hereinafter stated, and for the uses and purposes of said committee created by said Senate Resolution No. 23, the sum of at least $9,000.00.

“By Section 3 of said act it was provided that no money therein appropriated should be drawn except on a requisition of the auditor of state.

“Under and iri accordance with said Senate Resolution No. 23, the committee therein selected, duly met and organized, elected John C. Drake as chairman, who is still acting as such, and entered upon the discharge of its duties.

“The said .committee, in accordance with said Resolution No. 23, selected as its place of meeting the city of Cincinnati in said state of Ohio. Under and in pursuance of said organization and operation, the said committee found it necessary to rent from the relator in said city of Cincinnati rooms in which to hold its meetings, and for that purpose to incur expense; and also for the purpose of carrying on its said work and discharging its said duties to incur with the relator a bill for electric light, a bill for repairs to lights, and a bill for a spring latch and keys.

*“In*connection with, and because of, its said organization and the performance of its said duties, in said city of Cincinnati, the said committee became indebted to the relator, The Robertson Realty Company, in the manner aforesaid in the sum of $265.30, a true copy of which account, duly verified, is hereto attached, marked ‘Exhibit C,’ and made a part of this petition.

“The amounts named in -said account are fair, just and reasonable, and said expenditures were necessary to enable the said committee to organ*5ize and carry on the work and to do the things enjoined upon it by said Resolution No. 23.

“Thereupon, in accordance with law and said Senate Resolution No. 23, the relator duly presented to the auditor of state of the state of Ohio, the defendant herein, a voucher and requisition for said sum of $265.30, duly signed by the said chairman'of said committee, a true copy of which voucher and requisition is hereto attached, marked ‘Exhibit D,’ and made a part of this petition.

“The auditor of state has refused, and still refuses, to issue, as ' is his duty, in accordance with law, his warrant or order on the treasurer of the state of Ohio for said amount and declares that he will not do so, and assigns as a reason therefor that, in the absence of the direction of this court, he is in doubt as to his powers and rights and duties in the premises, but admits the facts aforesaid and the existence of money in the treasury of the state of Ohio to the credit of the proper fund and sufficient in amount to pay the account aforesaid.

“This relator avers that it is wholly without any remedy or form of action whatsoever in the premises save and except one in mandamus.

“The said committee, under and in pursuance of said resolutions, for more than two months have proceeded in the discharge of the duties laid upon them by said resolutions and are desirous of proceeding, and are in duty bound to proceed, to the final discharge of their duties and obligations under said resolutions.

“Wherefore, this relator prays that this Honorable Court may cause to issue to the defendant herein, Walter D. Guilbert, the Auditor of State of *6the State of Ohio, a peremptory writ of mandamus commanding him to issue to this relator, in accordance with law, his proper warrant on the treasurer of the state of Ohio for the said sum of $265.30 for the uses and purposes aforesaid; or that this court may cause to issue to said defendant an alternative writ of mandamus commanding him forthwith, in accordance with law, to issue to the relator his said proper warrant for said sum of $265.30, or that by a day certain he appear before this Honorable Court and show cause why he should not comply with the relator’s prayer and why a peremptory writ of mandamus should not issue as aforesaid.

“This relator prays for such other and further relief as may be necessary and proper in the premises to protect- and safeguard its interests.”

“EXHIBIT A.

“77th' General Assembly, Regular Session. S. R.

No. 23. Mr. Espy.

“Senate Resolution.

*“Relative to appointing a committee to investigate charges of corruption existing in the government of the City of Cincinnati' and the County of Hamilton.*

“Whereas, It has been charged in the public press and elsewhere, that certain officials of Cincinnati and Hamilton county and the commissioners of water works of said city have made certain collusive and illegal contracts and have unlawfully misapplied and misused the public funds, and *7have otherwise misused their official positions; and that certain persons, corporations and. political committees, not officeholders, have unlawfully conspired with or influenced said officials, or collected certain sums of money therefrom, illegally or for an illegal purpose, or both, and have conspired to corrupt the ballot; and, further, that there have been other forms of misgovernment in said city and county.

“Whereas, It is expressly represented to this General Assembly by the citizens of Hamilton county, through their Senators and Representatives, that for good and sufficient reasons the people of said county can not, of- their own accord and with the means provided by the present laws of the state, make and conduct an investigation of the matters and things herein referred to so as fully to accomplish the results desired, for which reason they appeal to the people of the state to assist them in making and conducting said investigation through and by the General Assembly.

“Whereas, It is of the first importance that the General Assembly should be fully informed as to the extent of these and other alleged abuses, that it, with the fullest possible information in its possession, may be able to make such amendments in the existing laws, and enact, if necessary, such new laws as may protect the people of Cincinnati and Hamilton county, and other cities and counties from like alleged abuses and impositions in the future.

*“Be it Resolved by the Senate of the State of Ohio,*That under and by virtue of Sections 50-51-52-53-54 and 55 of the Revised Statutes of Ohio, a select committee composed of Messrs. Drake, *8Schmidt, Espy, Sites and Meek be appointed with full power and authority to investigate all and singular the said matters and charges and all matters and things in any way pertaining thereto, and with full power to prosecute its inquiry in any and every direction in its judgment necessary and proper to enable it to obtain and report the facts in reference to said charges; and further

“Resolved, That said committee, or a majority thereof, be, and it hereby is, authorized to employ one or more stenographers, one or more expert accountants, one or more counsel, and such other assistants as it may deem necessary for the proper conduct of the ■ investigation herein directed; and shall have the power to compel the production before it of any books and records, letters or documentary evidence of any character, which, in the judgment of the committee, pertains to any matters or things under investigation, and wherever found; and also to compel the attendance of any witnesses. Said committee may hold its meetings in any place designated by it in the state of Ohio. Any member or members of the committee, and its counsel or other assistants, shall have access at all times during the life of the committee to all books, records, papers and others documents on file in the office of the various departments of said county and city; said committee, or a majority thereof, shall exercise and enjoy all the powers, privileges and authority of a legislative committee, with full power to enforce its directions and mandates as provided for by the laws of the state of Ohio governing such matters; and further

*“Resolved,*That in order to secure a full disclosure from all witnesses who may appear before *9Said committee of all facts and things within their knowledge, it is the sense of the Senate that no witness should-be prosecuted, indicted, held liable or proceeded against in any other action or proceeding for any testimony given by him before said committee.

*“Resolved,*That said committee make report of its proceedings, with full transcript of testimony taken by it, together with its findings, in writing, to the Senate, with such recommendations for further legislation or amendments to existing legislation as the disclosures made to said committee may warrant, and recommend such further legislation generally on the subjects investigated by said committee as said committee, or a majority thereof, may agree upon, as the disclosures made to said committee may warrant; and further

*“Resolved,*That the expenses incurred by this committee be paid out of the contingent fund of the Senate; said expenses to be paid upon proper vouchers signed by the chairman of this committee.

“77TH General Assembly. Regular Session.

“I, A. P. Sandies, clerk of the Ohio State Senate, of the 77th General Assembly, duly elected and qualified, do hereby certify that the above and foregoing is a true and correct copy of Senate Resolution No. 23, passed February 7, A. D. 1906.

“In witness whereof, I hereunto set my hand, this thirteenth day of February, 1906.

“A. P. Sandles, *Senate Clerk.”*

*10“EXHIBIT B.

“77th General Assembly, Regular Session. S. R.

No. 30. By Mr. Espy.

“Senate Resolution.

*“Relative to the committee appointed to investigate charges of corruption existing in the government of the City of Cincinnati and the County of Hamilton.*

“Whereas, By Resolution No. 23, adopted by the Senate of Ohio, on the seventh day of February, 1906, a committee, consisting of Messrs. Drake, Schmidt, Espy, Sites and Meek, was appointed to investigate charges that certain officials of Cincinnati and Hamilton county and the commissioners of the water works of said city have made certain collusive and illegal contracts and have unlawfully misapplied and misused the public-funds, and have otherwise misused their official positions; and that certain persons, corporations and political committees, not officeholders, have unlawfully conspired with or influenced said officials, or collected certain sums of money therefrom, illegally or for an illegal purpose, or both, and have conspired to corrupt the ballot, and that there have been other forms of misgovernment in said city and county, and to investigate all matters and things in any way pertaining to said charges, with full power to prosecute its inquiry in any and every direction in its judgment proper and necessary to enable it to obtain and report the facts in reference to said charges;

“Whereas, The time within which the said committee was to make its report to the Senate, *11to the end that proper remedial legislation should be enacted, was not limited by said resolution;

“Whereas, It appears to be impracticable for said committee to complete the investigation and to make the report during the present session of the General Assembly.

*“Resolved,*That said committee, or a majority thereof, be and it is hereby directed to continue the investigation under said resolution, with all the power and authority thereby conferred, after the adjournment of the present session of the General Assembly, and to submit to the Senate, not later than January 15, 1908, a full report of the proceedings, together with such recommendations as in its judgment may be necessary and proper on the facts and conditions by it discovered and ascertained for the enactment of proper remedial legislation.

“I, A. P. Sandies, clerk of the Ohio Senate, do hereby certify that the above and foregoing is a true and correct copy of Senate Resolution No. 30, as adopted by the Senate on the twenty-sixth day of March, A. D. 1906, as appears on the journal of the Senate of that day.

“In witness whereof, I have hereunto set my hand this thirty-first day of March, 1906.

“A. P. Sandles, *Senate Clerk.”*

*12“EXHIBIT C.

“Cincinnati, O., April 19, 1906.

*“The Select Committee of the Ohio Senate to The Robertson Realty Co.:*

“To rent of second floor, Lincoln Club building, Eighth and Race streets, from February. 19, 1906, to April 19, 1906, two months, at $125.00 per month.....$250 00

To electric light for March, etc......... 12 50

To repairs to light, per Devere Electric Co................................ o 75

To spring latch and keys, C. S. Siewers. . 2 05

$265 30

“State of Ohio, Hamilton County, ss. :

“M. M. Robertson, being duly sworn, on oath says that the above account for rent, light and repairs as therein stated, against the Select Committee of the Ohio Senate, is in all respects just and true as he verily believes, and that he is president of The Robertson Realty Co.

“M. M. Robertson.

“Sworn to before me and subscribed in my presence this twentieth day of April, 1906.

“[Seal.]

-E. O. Hunt,

*“Notary Public, Hamilton County, O.”*

*13“EXHIBIT D.

“No. 508.

“Senate Chamber,

“77th General Assembly, Regular Session.

“Columbus, O., April 20, .1906.

*“To the Auditor of State:*

“In compliance with provisions of Senate Resolution No. 23, I hereby certify that The Robertson Realty Company is entitled to the sum of two hundred and sixty-five and 30-100 dollars for rent, light and repairs as per annexed account, to be paid from Appropriation for Cincinnati Investigating Committee.

“$265.30. (Payable only on endorsement of payee.)

“John C. Drake,

*“Chairman of Select Committee of the Senate.”*

The respondent waived the issuing and service of process and specifically waived the- issuing of an alternative writ of mandamus herein, and demurred to the petition on the ground that it does not state facts sufficient to constitute a cause of action or to entitle the relator to any relief whatsoever against the respondent.

*Mr. Jacob Shroder*and *Messrs. Butler & Carlile,*for the relator.

The sole question presented to this court is whether or not this Drake Committee has sufficient legal standing and vitality to enable it to receive and to expend money which has been duly and legally appropriated to its use and benefit by the General Assembly of the State of Ohio.

*14For we assume that even the exigencies of this case will not carry-any one so far that he will attempt to deny the validity or regularity of the appropriation made for the benefit of this committee, *if the committee has any legal standing whatsoever in the eyes of the law.*

Therefore we pass to an examination of the only question in the case, not as to whether or not the committee is clothed with this or that special or specific power, *but as to whether or not the committee has any power, standing or authority whatsoever.*

The preamble to Senate Resolution No. 23 as a basis for the resolution proper is broad and comprehensive. The basic purpose of the resolution and of the proposed investigation is very clearly disclosed by the form of the resolution. The supplemental resolution, Senate Resolution No. 30, while briefer, is as clear in its fundamental statements, for it recites, in addition to many specific averments, “that there have been other forms of misgovernment in said city and county.”

The only provision of the Constitution which seems to have any bearing upon the precise question presented to the court is the following section of Article II:

“Sec. 1. The legislative power of this state shall be vested in a General Assembly, which shall consist of a Senate, and House of Representatives.”.

No authority can be found which will negative the theory that a Legislature, or either branch thereof, has the right to gather information, to investigate, to investigate, in its own way, and to *15use in that investigation money which has been appropriated for that purpose.

It is not for the courts to enter upon an inquiry as to whether or not the means used by a legislative body in gathering information by investigation or otherwise are either wise or proper. The legislative body must be left to use its own free and uncoerced judgment in this particular. There can be but one possible limitation upon this right, or rather but one possible modification of .this statement of that right, and that is that if, when exercising its power o.f investigation, the rights of an individual either as to his person or his property are jeopardized, ignored or destroyed, the court will then determine whether or not in the exercise of its conceded power to gather information and to investigate it had the authority to do the things about which the particular complaint has been made.

A legislative committee has the right to investigate, to gather information and to make a report to the parent body, and substantially the greater part of useful legislation comes through such channels.

And the case at bar goes no further than these principles. No property rights are invaded in this case. No question of personal liberty or personal privilege based upon constitutional guarantees, state or national, is invoked here. No visitorial power is here drawn in question.

It is true that the man who wishes to throttle investigation, who has something to fear, whose salvation depends upon technicalities, may criticize the resolution ,and find it too broad of too narrow, too long or too short, too deep or too *16shallow, unconstitutional, subversive not only of the Constitution of the state of Ohio, - but also of that of the United States. But over and beyond all this special argument for special defenses, so clearly that he who runs may read, is the written fact that the Senate of the State of Ohio, so far as the case at bar discloses, is simply engaged in its inherent, constitutional right to gather information in its own way, a right fundamental to legislation and not denied by the Constitution, venerated by the custom of the centuries, and invigorated in this opening of the twentieth century as never before, by the strong ■ necessities which demand this right and power for legislative bodies.

In *Kilbourn*v. Thompson, 103 U. S., 168, we find a striking recognition of this principle. The Supreme Court of the United States there decided that the House of Representatives was without authority to punish a witness because the subject-matter of the inquiry being for the government as a creditor was beyond legislative control. Yet the court, while denying the right to punish as for contempt, did not deny the committee the right to gather information' from voluntary witnesses.

It would seem to us too clear for discussion that it is not for any court to say that a legislative body not interfering with property rights or trespassing upon personal privileges must, before it can use money for gathering information, proceed in this or that particular way. We do not perceive the necessity for making any court' a receiver for the General Assembly of the state or of either branch thereof.

*17It is admitted that our state Constitution is not a. grant, but a restriction upon the powers of the Legislature. But this Constitution contains not a single restriction which limits the inherent legislative powers and rights.

It is important to observe how the fundamental principles are considered by an eminent author. Cushing's Law and Practice of Legislative Assemblies, ninth edition, contains many interesting, instructive and authoritative observations (see pages 221, 246, 253, 255, 257, 721 and 739).

* In the case at bar, independent of the right of any branch of the General Assembly of itself to appoint a committee for investigation, the passage of the Resolution No. 23 by the Senate was authorized and aided by the statutes as embodied in Revised Statutes, Sections 50-55, inclusive. These sections constitute acts of the *entire*Legislature, which invest as an act of Legislature either branch of the General Assembly with powers to appoint committees of investigation with the authority mentioned and specified in these sections. While no other act prescribes the appointment of either standing or select committees or their duties, these sections necessarily confer on either branch of the Legislature the authority to appoint them for purposes of legislation, and also to invest such committees with authority to do whatever may be proper and necessary for the discharge of their duties. These sections necessarily confer authority on the General Assembly, or either branch of it, to empower the committees to do all things that are usual and proper for the efficient discharge of their duties. It reposes in the authorizing body the discretion as to the subject-matters of investí*18gation and as to the means of conducting the same. Otherwise these sections would be but a vain and useless piece of legislation. The statutes presume the existence of legislative committees as a parliamentary common law institution. *Work*v. *State,*2 Ohio St., 301.

The history of parliamentary committees, in England and this country, sustains this presumption. In England, standing committees were in active use in Parliament from 1340 to 1832 — since 1832 not in active use, though nominally in the order. In the American colonies and states, in Connecticut since 1673, Massachusetts since 1718-1730, Virginia 1656, Maryland since 1678, North Carolina 1733, New York 1737, the House of Representatives of the United States since 1789, Senate 1816 (1 Pol. Science Quarterly, 246). The appointment of select committees with broad powers finds eminent historic illustration in the committee appointed in 1621 by the Commons to inquire into the state of the Court of Justice which caught Lord Chancellor Bacon in its net; the Committee on the Conduct of the War, during our Civil War; the Committee of the House on the State of the South, 1871.

In the case at bar the law-máking department of the state has stamped its approval upon the Resolution No. 23 by the appropriation act of March 1, 1906, which made appropriations for the expenses to be incurred by this committee for its use and purposes while in the discharge of its duties under said resolution. The legal effect of this legislation is that Resolution No. 23, while but a resolution of one branch of the General Assembly, stands approved not only by the previous *19authorization of Revised Statutes, Sections 50 *et seq.,*but by the subsequent ratification of the act of March 1, 1906, House Bill No. 139.

Independent of this authorization on the part of the General Assembly, the Senate as a separate branch in the discharge of its legislative duties and functions *was,*under the form of government adopted in this country, authorized and required to take such steps as would enable it to initiate'or to pass laws for the good of the state; to discharge these duties in such manner as it thought best for the enacting of wise, beneficial and efficient laws. *People, ex rel.*v. *Keeler,*99 N. Y., 481.

It is within the discretion of the Legislature, unfettered by any opinion which any court may entertain, to adopt such reasonable means of seeking and obtaining information as to facts, and counsel as to the propriety, legality and efficiency of its enactments as it deemed advisable. For the exercise of this discretion it could adopt the usual parliamentary means and instrumentalities. Albany Law Journal, 337.

In view of the resort to statutes as one of the evidences of what should be regarded the public policy of the state on any subject, also in view of the conclusiveness attributed to the knowledge which the Legislature is supposed to possess upon subjects of legislation, and of the presumption of its being fully advised and informed with respect to the same, the power and the duty of seeking and obtaining information of subjects fit for legislation necessarily rest and are imposed upon the Legislature. The usual means of obtaining information, and in fact the only practical means of doing so, is by and through the agency of com*20mittees. This is recognized by the Supreme Court of the United States in the case of *Spencer*v. *Merchant,*125 U. S., 356, where that court, through Justice Gray, distinctly held that parties were bound by the superior information which the Legislature has upon the subject-matter of legislation, and which the Legislature obtains *through its*committees. Under the forms of government recognized under the Constitution as republican, legislation is accomplished and enacted chiefly by the assistance and instrumentality of committees. The Legislatures of European governments, as a general thing, obtain their information and have placed before them the framework of the proposed statutes by cabinet ministers who have seats in the Legislature and in general participate in the deliberative and in some instances the legislative functions of the Legislature. Such a form has never prevailed in this country, although in the early days of our federal government such a mode of legislative procedure was suggested. As a consequence, from the very beginning legislation through the aid of committees has been the only mode of practically enacting laws. These committees have always been empowered to make investigation of facts pertinent to the subject-matter of legislation. Bryce’s The American Commonwealth, 2d Ed., Vol. I, pp. 151 to 159; Cooley on Constitutional Limitations, 7th Ed., 193; *Branham*v. *Lange, Auditor,*16 Ind., 497.

The subject-matter of inquiry of these committees must be such as is prescribed by the resolution of their appointment; and in the discharge of their duties, in the execution of the details, pursuant to the same, conflicts have arisen between *21the power of the committee and the rights of individuals. Whatever the judicial result of these conflicts may have been, they have never gone beyond a determination in the special case, of the rights there involved. Unless the committee was appointed for a fraudulent or sham purpose and not with a view of enacting a remedial legislation, the decision of the cause never affected the validity or legal existence of the committee. It went no further than to determine that the special act complained of was either lawful or unlawful, as respects the individual. The power for investigations of the committee is coterminous with the power of the Legislature.

If the Legislature is endowed with all the legislative power of the people, it must be able to discharge its duty and to exercise this power unhampered and independent of any other control than such as the people through its organic laws had expressly prescribed. For this reason it has been uniformly held that unless the legislation in question is clearly and unequivocally unconstitutional, it is the law of the state. For this reason the judiciary, as one of the co-ordinate branches of the government, will not refuse to enforce a statute unless it is clearly- and unequivocally satisfied that its enactment was repugnant to the Constitution. Courts will never reach a conclusion which in effect refuses to carry out the will of the Legislature unless there is unequivocally forced upon the mind of the court that this will is repugnant to the organic law.

In this case the Senate Resolutions Nos. 23 and 30 were passed under the authority vested in this power by the act of the *entire*Legislature, and *22were it at this day attempted, notwithstanding the time-tried usage of American Legislatures, to challenge the right of any branch to appoint for its own legislative purposes a committee of investigation, both historic precedents and the opinions of authority leave no doubt of such. right where the exercise of it is aided by the acts of legislation of the entire Legislature.

The validity of the Resolution No. 23 has been assailed and the authorities upon which this assault is supported are those of two inferior courts, the decision of one of which leaning considerable upon the decision of the other. The cases referred, to are those in *People, ex rel.,*v. *Webb,*5 N. Y. Supp., 855, and *In re Thomas*J. *Davis,*Court of Common Pleas, Hamilton County, Ohio. An examination of the Webb case discloses that the court found the resolution on which the act of the committee was based to be a mere pretense, a sham. If depending upon this decision the Court of Common Pleas of Hamilton County declared the Resolution No. 23 invalid, it must have been on the same ground. Resolution 23 by its title aims to investigate the charges of corruption existing in the city of Cincinnati and county of Hamilton. The title directs the intention of the resolution to a specific evil supposed to prevail in a specific division of the government in the city of Cincinnati, county of Hamilton. The preamble recites that charges of corruption have been made by the public press and elsewhere and recites what the charges consist of. The preamble also recites that there is represented to the Senate and is represented to the Legislature by the citizens of Hamilton county, *through their senators and*rep*23
      *resentatives,*their inability as .citizens of that county to make and conduct the investigations. It also recites that it is of the first importance that the General Assembly ought to be *fully informed*of .the extent of the alleged abuses to the end *that amendments may be made to existing laws and new laws may be enacted*so as to protect the people of the city of Cincinnati and county of Hamilton, and other cities and counties, from like abuses and impositions.

The Senate Resolutions Nos. 23 and 30 do not aim at an investigation merely for the sake of investigation, nor are they intended to subserve the interests of the city of Cincinnati or the county of Hamilton as a creditor. They look for information which might aid in the legislation that would, as far as possible, prevent abuses and corrupt practices such as might be discovered to have been practiced by public officials and their co-conspirators in the county of Hamilton and city of Cincinnati in public matters. These resolutions are specific in so far as they point out sufficiently for the guidance of the committee the subject-matters and the locality of their investigation. It specifies that there are charges against the commissioners of water works of the city of Cincinnati of having made use of illegal and collusive contracts and of having unlawfully misapplied public funds; charges, that certain persons, corporations, and political committees who are not officeholders have unlawfully *conspired with these officials*and collected certain sums of money therefrom, also for unlawful purposes have conspired with these officials to corrupt the ballot. We ask whether more specific charges could be made *24unless the definiteness of criminal pleadings were exacted in legislative resolutions. If the resolution authorizes an investigation that is broad and extensive, it is because the resolutions are made equal to the exigency of the case.

Resolution No. 30, passed March 26, 1906, directs this committee to continue the investigation under Resolution No. 23 and to submit to the Senate not later than January 15, 1908, its report and its recommendations. The two resolutions contemplate the continued service of the committee and the appropriation act of March 1, 1906, by its terms, contemplate whatever use is to be made of the appropriation should be made prior to February 15, 1907. This appropriation act of the entire Legislature evidences that the Resolutions Nos. 23 and 30 have the approval of the entire Legislature in so far as they contemplate that the services of this committee shall continue during the recess of the Legislature. It does not authorize this committee to suspend its action; it might have in view the necessity of this committee conducting its investigation while the testimony of living witnesses and evidence of documents are still at hand, subject to their command, or at least accessible. It is not a rash inference that when the Senate proposed to itself to make this investigation through the committee it did not contemplate and intend that the committee’s prosecution of its work should be dilatory or be suspended or obstructed or rendered inefficient by delays or the lapse of time.

There are several cases the discussion of which may be of assistance. *Kilbourn*v. *Thompson,*103 U. S., 168, limited and partially overruled *Ander*
      *25
      *son*v. *Dunn,*6 Wheaton, 204. The court expressly refused to determine whether or not' either House of Congress had the right to punish for contempt, except in special pases, but did decide that in no event could that power be exercised unless it was concerning a matter that properly came within the cognizance of that branch of Congress. But as we have already pointed out, the court by express language did recognize the right of the House of Representatives in the matter then under consideration to gather such information as it could from the voluntary statements of the witness.

The Ohio Supreme Court, in *Ex parte Dalton,*44. Ohio St., 142, had occasion to consider the *Kilbourn*v. *Thompson*case.

Another federal case, relatively recent, is that of *In re Chapman,*166 U. S., 661. This case is. especially instructive to those who had theretofore thought that by the decision in the *Kilbourn*v. *Thompson, supra,*the Supreme Court had made it virtually impossible for either branch of Congress to punish for contempt.

Probably the most instructive and most authoritative case in this country is that of *People, ex rel. McDonald,*v. *Keeler,*99 N. Y., 463.

The case of *Burnham*v. *Morrissey,*14 Gray, 226, decided in 1859, is an instructive case on the right of a legislative body to punish for contempt.

Another case which seems to be pointed is that of *Ex parte McCarthy,*29 Cal., 395. *State*v. *Matthews, 37*N. H., 450; *In re Falvey and Kilbourn,*7 Wis., 630.

This court in *Hale*v. *State,*55 Ohio St., 210, has clearly stated the principle underlying the *26claim that in a co-ordinate branch of the government there are certain inherent rights and privileges which can not be abridged.

The validity arid regularity of the appropriation which the Drake Committee desires to use seem to be fairly settled by two Ohio cases: *State, ex rel.,*v. *Oglevee, Auditor,*36 Ohio St., 324; *State, ex rel. Harris,*v. *Guilbert, Auditor,*63 Ohio St., 177.

In the case of *State, ex rel. Harris,*v. *Guilbert*was involved the right of the Ohio Centennial Commission to use the appropriation of $500,-000.00 made “for the Ohio Centennial and Northwest Territory Exposition,” which it was designed should be held at Toledo. In the opinion, page 181, is this re-affirmation of *State, ex rel.,*v. *Oglevee.*

The contention that this Resolution 23 and the Sections 50, Revised Statutes, *et seq.,*authorize a procedure judicial in its nature, and is therefore in conflict with Article II, Section 32 of the Constitution, has been refuted by decisions of this court, which sustained the exercise by administrative and executive officers of powers which, though judicial in their nature, did not constitute the exercise of judicial power under the Constitution of the state. , .

In this state, hardly a state officer or board can be named which does not in certain cases bear and determine matters and exercise powers judicial in their nature. *State*v. *Bryce,*7 Ohio, pt. 2, p. 82.

The governor does in the appointment and removal of officials and in the granting of requisitions and pardons. *State, ex rel. Atty. General,*v. *Hawkins,*44 Ohio St., 98.

*27The secretary of state does in filing certificate of incorporations, and in passing upon questions arising upon nominations. *State, ex rel.,*v. *Taylor, Secretary of State,*55 Ohio St., 61; *Chapman*v. *Miller, et al.,*52 Ohio St., 166.

The attorney general does in bringing suits in quo warranto. *Thompson*v. *Watson, Attorney General,*48 Ohio St., 552; *State, ex rel. Wasson,*v. *Taylor,*50 Ohio St., 120.

The auditor of state and county auditors do in many tax matters.

Superintendent of insurance does in licensing insurance companies and passing upon their solvency. *State, ex rel. Insurance Company,*v. *Moore,*42 Ohio St., 103; *France*v. *State,*57 Ohio St., 17.

For what is judicial power under the Constitution of Ohio. *DeCamp*v. *Archibald,*50 Ohio St., 625.

*Mr. Lawrence Maxwell, Jr.; Messrs. Ernst, Cassatt & McDougall; Mr. Miller Outcalt*and *Mr. Frank F. Dinsmore,*for respondent.

In order to determine whether this is a valid committee, the appointment of which is within the power of the Senate, it is necessary to consider the general scope of the resolution.

The preamble contains a statement of the scope of the investigation. Generally speaking, the resolution covers: (a) illegal and collusive contracts by “certain” (uncertain) officials of Hamilton county and Cincinnati, including the commissioners of water works; *(b)*misapplication of public funds and abuse of official position by said offi*28cials; (c) unlawful conspiracy with or influencing of said officials by certain persons, corporations and political committees; (d) collection therefrom for illegal purposes of certain sums of money; *(e)*corruption of the ballot; (/) “other forms of misgovernment.”

It will be seen that the committee was authorized and directed to investigate any offense which anybody charged had ever been committed in the city of Cincinnati or the county of Hamilton, affecting in any way the government of the county or city. For that purpose it was expressly constituted to come under the provisions of Sections 50 to 55 of the Revised Statutes, and to have the power to compel the attendance of witnesses and the production of any books and papers which the committee thinks pertinent in any way to any of the matters under investigation. The effect (and the only effect) of the reference to Sections 50 to 55 is to stamp the committee as one whose mandates would be enforced by the contempt power of the Senate. The general scope, therefore, of the work of this committee, as set forth in the resolution, was an investigation of crimes as aforesaid, by the compulsory attendance of witnesses and the production of books and papers and by the use of the contempt power of the Senate therefor.

Except in its self-serving declaration as to the purpose of the investigation, the resolution in its scope and in its requirements is in all respects like a charge to a grand jury. Whether this was for the purpose of obtaining information or not, it finds no authority in either the statutes or Constitution, and is in plain violation of the terms of *29the latter instrument, because an exercise of judicial power. No authority for . the prosecution of such inquiry is to be found in any statute.

Counsel for plaintiff endeavor to find such authority in Sections 50 to 55, Revised Statutes. A careful reading of those sections fails to disclose a grant of any power to either branch of the General' Assembly to appoint a. committee or authorize it to investigate any matters of inquiry. They simply provide a method of procedure to be followed by an existing committee charged with matters of inquiry, and authorized to send for books and papers. There are, as we shall hereafter see, certain subjects into which the General Assembly has the right to make, investigation by compelling the attendance of witnesses and the production of books and papers. To such an investigation the sections referred to would undoubtedly apply, but the authority for the investigation itself is in each case to be found elsewhere.

The Constitution gives no express power to the Senate to make this kind of an investigation. Certain matters are committed to one or other of the houses for investigation or trial.

Under Article II, Section 6, 'either house would have the right to hear testimony and enforce the attendance of witnesses in trying the question of the election of one of’ its members. It was under this section that the House of Representatives was held by this court *(Ex parte Dalton,*44 Ohio St., 152) to have power to compel the attendance of witnesses by the procedure set forth in Sections 50 to 55 of the Revised Statutes.

*30Under Article II, Section 8, either house may-try a member for disorderly conduct or for such an offense as would justify expulsion, and, in the exercise of such power would be authorized to compel the attendance of witnesses and the production of books and papers.

Under Article II, Section 21, the Senate may, when authorized by statute, try contested election cases *(State, ex rel.,*v. *Harmon,*31 Ohio St., 250). In such a contest the power would exist to summon witnesses ’and compel the production of papers.

Under Article II, Section 23, the House of Representatives may impeach, and for the purpose of impeachment may investigate by compelling the attendance of witnesses, etc.; the Senate shall try such impeachment, and on such trial, of course, witnesses may be summoned and the production of papers may be required.

We claim, however, that except in the matters specifically set forth in the Constitution, neither house has any right to summon witnesses and compel the production of books and papers, and pry into the private affairs of a citizen.

The broad grant of legislative power is to the General Assembly in the making of laws or otherwise. It is not to either branch acting alone. Each body must find its separate powers expressed or implied. If we assume that the General Assembly might, under the broad grant of legislative powers, authorize by law either house to take testimony on subjects of proposed legislation, for instance; nevertheless, it has not done so, and the question is, has *anything*authorized the Senate, acting alone, to conduct the investigation?

*31The power of the Senate to conduct this investigation must rest, therefore, if ^ it exists at all, in implication; on the theory that it is incidental to the law-making function, and therefore to be implied in all legislative bodies. It is claimed that a legislative body may inform itself upon matters on which it desires to legislate, and for that purpose compel the production of evidence. This theory has never received judicial sanction in this state. Decisions in some other states have permitted a legislative body to conduct an investigation of a limited character upon a definite subject for the *bona fide*purpose of aiding in the enactment of remedial legislation. These decisions, however, have been in states having different Constitutions than ours. The decisions of the Supreme Court of the United States do not favor the existence of such an implied power. It may be objected that as the United States Government is one of delegated powers, the state Legislatures might have greater powers in this regard than the United States Congress, but if the power herein questioned is to be implied in all legislative bodies as an aid to the law-making function, it would belong to any body which has the power to make any laws, and would, therefore, belong to the United States Congress, just as certainly as to any state Legislature.

Upon the question of the incidental and implied powers of either branch of a Legislature, the case of *Kilbourn*v. *Thompson,*103 U. S., 168, is most instructive.

The attitude of the same court (United States) upon legislative or other inquiries into the private affairs of a citizen, is further illustrated in *32the case of *Interstate Commerce Commission*v. *Brimson,*154 U. S., 447.

We do not know of any case in which the United States Supreme Court has given its approval to the doctrine that a legislative body has the inherent right to compel the production of evidence upon any subject-matter upon which it desires to legislate.

Whether the Ohio Senate has such an implied power as it attempted to exercise in the resolution now under discussion, is, we think, expressly determined by Article II, Section 32, of the Ohio Constitution, which provides that the General Assembly shall not “exercise any judicial power not herein expressly conferred.”

This excludes such a power as is claimed’ in the case at bar, for it is not expressly conferred and is certainly judicial in its character. We have seen that the subjects of this resolution are all cognizable by the courts. The alleged “charges,” if true, are punishable by the courts. The grand jury, an arm of the court, has full authority to investigate such charges for the purpose of determining whether criminal prosecutions shall be instituted. It seems clear that the inquiry is of a character cognizable by the courts and that it is judicial in its character, within the meaning of Article II, Section 32, of the Constitution. *In re Pacific Railway Commission,*32 F., 241.

The case of *People, ex rel. McDonald,*v. *Keeler,*99 N. Y., 463, is the leading case cited by counsel for the relator in support of the alleged power of this committee.

*33In that case it appeared that either branch of the Legislature was authorized by law to make legislative investigations, and in pursuance of that statutory power, the Senate had appointed a committee to investigate certain definite charges against a particular department of the city government of New York with a view to the legislative re-organization of that department. The points of difference between that proceeding and this are obvious. The Court of Appeals of New York in upholding • the power of the Senate in that case, admitted, however (.pp. 473-4), that the power asserted is judicial in its nature, but held that it was not forbidden by the Constitution of New York. That Constitution contains no such prohibitory clause as ours.

In the case of *People*v. *Sharp,*107 N. Y., 445, the same court in considering another legislative investigation of a similar character again characterizes such a proceeding as judicial.

We have contended that even if the purpose of the investigation was to aid in legislation it was beyond the power of the General Assembly, because in view of its scope and instrumentalities it was an exercise of judicial power not authorized but forbidden by the Constitution. But, even if this position could not be maintained, the resolution would be invalid because its real purpose is not to aid in legislation, but to expose crime. It is true that the resolution contains the recital that the General Assembly desires the fullest possible information, so that “it may be able to make such amendments in the existing laws and enact, if necessary, such new laws as may protect the *34people of Cincinnati and Hamilton county from like alleged abuses and impositions in the future.”

Such a self-serving declaration will not, however, shut the eyes of the court to the real purpose of the resolution. *People, ex rel. Sabold,*v. *Webb,*5 N. Y. Supp., 855; *State, ex rel.,*v. *Kelley,*81 Pac. Rep., 450; *Taylor et al.,*v. *Commissioners of Ross County,*23 Ohio St., 22.

It is claimed that the committee has the right to gather such information as may assist in legislation, and that so far as the resolution goes beyond this and covers other subjects or provides for the infringement of personal rights, it may be disregarded. But, if there be any part of this resolution that is valid, it is not separable from the remainder. The resolution must, therefore, stand or fall as a whole. *United States*v. *Reese et al.,*92 U. S., 214; *Wynehamer*v. *People,*13 N. Y., 378; Trade Mark Case, 100 U. S., 82; *James*v. *Bowman,*190 U. S., 127; *Treasurer*v. *Bank,*47 Ohio St., 503; *Alter v. Cincinnati, et al.,*56 Ohio St., 47.

If this resolution is invalid, as we have contended, then the provision in that resolution, which is the only authority for the expenditure, falls with the remainder of it. No liabilities or rights arise by virtue of an unconstitutional statute or resolution. *Findlay*v. *Pendleton et al.,*62 Ohio St., 80.

It is contended, however, that this committee may proceed to gather information in a lawful manner and for that purpose expend the money in question. Even if this were true as a matter of law, there is nothing .in the petition in this case to show that the money, whose payment this *35court is asked to command, is for a lawful purpose. It is quite reasonable to assume that the premises rented by the committee were used for an inquisition, having, all the illegal features contained in the resolution. As a matter of fact, the court will take judicial notice that the activities carried on in these premises by this committee included the enforced attendance of witnesses; the compulsory production of books and papers; an inquiry into private affairs, and even the attempted abduction of a citizen of Hamilton county for a failure to respond to a subpoena issued by the committee.

But even if it were shown that the money sought were to be used for the most inoffensive purposes, it would not avail the relator. The only authority for the making of the requisition and the expenditure of the money is to be found in the resolution, which, as we claim, is invalid as a whole, and that authority falls with the rest of the resolution.

*Mr. Wade H. Ellis,*Attorney General, made an oral argument in behalf of the Auditor of State, in which he said:

I have not personally prepared any brief in this case, feeling that the main question involved will be amply and ably presented in the briefs and oral arguments of other counsel on both sides. What I shall say will be limited to the immediate and direct relation of the state auditor to the demand made upon him for the issuance of his warrant as set forth in the petition. He is not concerned with the political conditions in Hamil*36ton co.unty, nor with any matter of private interest that might arise in the prosecution of the work entrusted to this committee or attempted to be entrusted to it by Senate Resolution No. 23. He is solely concerned, under his statutory duties, and his oath of office, with the legality of the expenditure, which is the basis of this action.

I agree with counsel for relator that the question here, presented is not whether the committee has this or that specific power, but I must contend for the auditor that whether or not he must pay 'out public funds depends, not upon whether the committee has *any power, standing or authority,*but whether or not the proposed expenditure by the committee is lawful. So far as the auditor is concerned, he is not here to deny that this committee has some Adtality and legal standing, but the question he submits to the judgment of this court, and upon which judgment he desires to base his official action, is whether or not, conceding that the committee has *some*legal standing, the purpose for which the money is to be spent is appropriate under the Constitution and laws of this state? The duties of the state auditor, in passing upon vouchers presented to him, are not limited to a determination as to whether or not the voucher is signed by an officer of the state, regularly elected or lawfully appointed, but necessarily involves a consideration by him of the question whether the expenditure proposed to be made, or the obligation sought to be paid by the issue of a warrant and the disbursement of the funds of the state, is a public one authorized by law. If the question were simply that suggested by counsel for the relator, the duties of the auditor *37would be greatly simplified, but the protection of the public funds would be completely destroyed. If he had only the duty of ascertaining the official character of the person issuing the voucher, and need not concern himself with the character of the expenditure, his duties would be merely clerical, and would involve only an examination of the public records to determine the question whether the person signing the voucher was a state officer or a private individual. If the secretary of state presents a voucher covering expenditures for private purposes, the duty of the auditor is not discharged by satisfying himself that the signature upon the voucher is that of the secretary of state and .that the person holding that office was duly elected and qualified. So, if a committee of the Senate presents a voucher, the whole duty of the auditor is not performed when he has ascertained that the committee was regularly appointed, and that the appropriation was for its use, and that there are some official acts which it may lawfully do. He must still determine whether the particular expenditure is a lawful one. In fact the latter is a more important duty than the former, for public funds may sometimes be expended for a lawful purpose by a *de facto*officer, but they can never be lawfully expended even by a *de jure*officer for an unlawful purpose.

For these reasons the state auditor feels that he should first consider, and respectfully submits that this court should finally determine, whether the purpose for which the money is proposed to be expended or the obligation represented by the voucher in this case has been incurred, is a law*38ful purpose authorized by the Constitution and laws of this state.

Is this investigation a legislative act? The purpose of this investigation, as shown in the resolution, is to inquire into the truth or falsity of the charges of law-breaking among public officers and others in the city of Cincinnati and county of Hamilton. The committee is directed to make full inquiry into these charges and to report to the Legislature in order that the law-making body of the state may be able to make such amendments in the existing laws and enact, if necessary, such new laws as may protect the people of Cincinnati and Hamilton county and other cities and counties from like alleged abuses and impositions in the future. It will be seen that the work designated to be done is to ferret out and expose crimes in order that laws may be enacted to prevent the commission of similar offenses hereafter. The question, therefore, is, whether or not the discovery of the violation of *existing*laws, even though the purpose of this discovery is asserted by the General Assembly to be that *new*laws may be enacted, is a proper service to be performed by the Legislature or is a duty devolved upon the courts.

But the necessity of this investigation in Hamilton cotinty is put upon a broader ground by the resolution of the Senate. It is proposed as a proper subject of legislative action because the citizens of Hamilton county, through their Senators and Representatives, assert that for good and sufficient reasons the people of said county can not of their own accord, and with the means provided by the present laws of the state, make *39and conduct an investigation of the matters and things referred to in said resolution so as to fully accomplish the results desired.

If it be true that the people of Hamilton county are unable to enforce the law and unable to secure the conviction and punishment of those who violate it, that inability must result from one of two causes:

First. There must be insufficient jurisdiction in the local courts, or limitations upon their methods of procedure which render them impotent to enforce the laws of the state. If this is the explanation of the appeal of the citizens of that county to the state to ascertain the truth or falsity of charges of corruption in government, it may be suggested that this appeal should be met, not by a legislative committee to apprehend the guilty, but by the passage of laws broadening the jurisdiction or improving the methods of procedure of the courts properly vested with the determination of these questions.

Second. There must be inefficiency or dishonesty 'in the judiciary of the county and city in question. If this be true, it may be suggested that under the Constitution this is an evil to be corrected, not by an investigation of the charges of crime, but *by*an impeachment of the courts under the constitutional and statutory provisions. In other words, if the judicial tribunals are *unable*or *unwilling*to enforce the law, their powers should be increased in the one case or their offices should be forfeited in the other.

In determining whether or not the facts disclosed by the committee authorized to make this investigation can be properly used by the General *40Assembly as a basis for remedial legislation, and therefore whether such investigation has been instituted for that purpose, the court must examine all the circumstances surrounding this case as disclosed by the record. Manifestly all the laws on the subject of the organization of cities or counties, or defining or punishing crime, are in their nature subjects of general, and not 'of special or local, interest. If a condition of affairs were discovered in Hamilton county which called for new legislation, that legislation could not, under our Constitution, be enacted for the sole purpose of meeting such conditions. It could be passed only because of the existence of like conditions elsewhere in the state, and it could be upheld only on-the ground that it was of general benefit and not of special advantage to one community. Nor could one community be lawfully taxed to pay the expenses of securing the information upon which such legislation was based. Whether or not in the case at bar the Legislature has given a construction to Senate Resolution No. 23, and has indicated that the purpose of the remedial legislation proposed is for the benefit of one county alone depends upon the interpretation which the court may give to an act of the General Assembly passed at the same session in which said resolution was adopted, which act provides, that the county of Hamilton shall repay to the state of Ohio so much of the appropriation for the contingent fund of the Senate as may be expended by the “Drake Committee.”

In the determination of this question as to whether or not the investigation here proposed may properly be made the subject of legislation, *41the court may further consider whether such remedial legislation should rest upon facts discovered in the opinion of a legislative committee or upon an adjudication by the courts of law. In other words, if the Legislature is to base legislative action on the question of whether certain public officers or others have violated the law, may this basis be the result of a legislative inquiry conducted without the formalities, safeguards and adversary methods of a public trial, where the accused is confronted with the witnesses against him and is given an opportunity to be represented .by counsel and to make his defense; or can the Legislature be said to intend an investigation for legislative purposes when it declares in the resolution authorizing the investigation, that whether or not remedial legislation will be enacted will depend upon the truth or falsity, the guilt or innocence of certain persons publicly charged with having violated the law, and submits that question, not to the courts, not to a plaintiff and defendant proceeding, but to an *ex parte*inquiry *by a committee appointed for that p%ir.pose.*

Without stopping to argue whether the Legislature and each branch thereof are, under the general provisions of the Ohio Constitution, strictly limited to. legislative duties, with the exceptions specifically set forth in the Constitution, to-wit, the decision of contested election cases, the trial of impeachments, the maintenance of order and the determination of the qualifications of its members, it may well be pointed out that it is as incumbent upon the Legislature to look to the judiciary for the final guilt or innocence of given individuals, and to accept that *42judgment, as it is incumbent upon the judiciary to look to and accept the conclusions of the Legislature as to the wisdom of the enactment of laws regulating the procedure of the courts.

It is finally submitted that the voucher in question in this case will require the court to consider the validity of *all*of the Senate Resolution No. 23, and the *whole*authority sought to be conferred upon the special committee. The principal item in that voucher is for rent of a room, which, as alleged in the petition, was used for two months by the committee in the performance of its duties. It is not alleged that that room was used only for the exercise by the committee of such powers as might be lawfully entrusted to it, but that it was used in the exercise of *all*the powers and the doing of *all*the things required to be done by said committee. It seems, therefore, that in this case the question is fairly presented, first, to the state auditor, and now to this court, whether the committee was legally authorized to do all the things set forth in that resolution; to make all the investigation; to determine as to the truth or falsity of any or all charges set forth in said resolution; to make findings of guilt or innocence upon such charges, and to report said findings to the General Assembly.

Davis, J.

This case fairly involves an issue as to the legal existence of the select investigating committee which was appointed by a resolution of the Senate. The auditor of state is made the chief accounting officer of the state and no money can lawfully be drawn out of the treasury except upon *43his warrant; and it is required that “he shall not draw any warrant on the treasurer for any claim unless he finds the same legal, and that there is money in the treasury which has been duly appropriated to pay the same” (Revised Statutes, Sections 153, 154). The only appropriation for such purpose which is available at present, is an appropriation for “contingent fund of the Senate for the use of select investigating committees” (98 O. L., 42). This is not an appropriation specifically for this committee; but it is clearly an appropriation for the contingent fund of the Senate for the use of any select investigating committee or committees. Presumably it is appropriated’ for the use of any select investigating committee which has been legally constituted for a legal purpose. The auditor of state declines to issue his warrant for the payment of expenses of this committee, claiming that the Senate exceeded its constitutional powers in appointing the committee. ^

The broad claim is made for the relator that the right to gather information in its own way, for the .purposes of legislation, inheres in the Senate as a legislative body; and that it is “a right fundamental to legislation and not denied by the Constitution.” But whatever inherent power the General Assembly in its entirety may possess by virtue of its being the repository of the whole legislative power of the state, we do not think that it follows as a conclusion that one of its constituent parts must likewise possess the same inherent powers. It may be conceded that either branch of the General Assembly has all such powers as are necessarily implied in the express grant of powers to it by the Constitution; *44but under the system of distribution of powers in the American Constitutions, and especially under the Constitution of Ohio, which is explicit in excluding from the legislative department the exercise of any power which is not delegated in the Constitution (Article I, Section 20), the authority of a single branch of the Legislature to act separately must be found in express terms or by necessary implication in the Constitution.

" It is clear that “the legislative power,” whatever may be the extent of that power which is conferred upon the General Assembly, is not expressly delegated to a part of the General Assembly. Nor is it inrpliedly so delegated. The Constitution explicitly grants and defines the separate powers of each branch of the General Assemblyand all powers which are not delegated to each house are expressly reserved to the people. The powers of each house are not general and subject only to limitation in the'' Constitution, as is the legislative power of the entire General Assembly; but they are specific or enumerated powers. As to these, the provisions of the Constitution are grants of power limited by the reservations of Article I, Section 20. We therefore must look to the enumerated powers alone to determine this question; and it were just as sane to claim that either branch of the Legislature might, by itself, enact a law, as to claim that by “inherent power” it could independently exercise any legislative power outside of those specifically delegated in the Constitution.

Precedents and usages drawn from English parliamentary practice can not safely guide us; because, as has been often pointed out, the Par*45liament was originally a high court of judicature and both houses thereof still retain many of their ancient judicial functions; and Parliament is in no manner restrained by the limitations of a written Constitution. Nor should the remarks or rulings of courts in cases where the questions now under discussion were not distinctly in issue and carefully considered, be followed without caution, and especially so where the constitutional and statutory provisions vary from those of this state. We may say, however, that the doctrine of inherent powers, as laid down in *Anderson*v. *Dunn, 6 Wheat.,*204, and followed many times in this country, has been very much weakened if not entirely overturned by the principles established in *Kilbourn*v. *Thompson,*103 U. S. Reports, 168.

The latter case, in a remarkable opinion by Mr. Justice Miller, established the following propositions from which the judgment in that case was reached: 1. The powers of either house of Congress must be found in some express grant in the Constitution, or be such as are necessary to carry into effect such powers as are expressly granted. 2. That the theory of inherent powers announced in *Anderson*v. *Dunn, supra,*is unsound and should be rejected, and 3. “that the resolution of the House of Representatives authorizing the investigation was in excess of the power conferred on that body *by the Constitution.”*That such is the effect of *Kilbourn*v. *Thompson,*was recognized by this court in *Ex parte Dalton,*44 Ohio St., 142, in the opinion by Owen, C. J., at page 151. It is true that all of these cases involved the question of the power of a legislative body to punish for contempt, and it *46is also true that the Supreme Court of the United States in *Kilbourn*v. *Thompson*expressly declined to pass upon the existence or non-existence of a power in either house of Congress in aid of legislation, because it was not necessary to a decision of the case; but it nevertheless remains true as the doctrine of that case that any power claimed by Congress, or either branch of it, must be found in the Constitution or necessarily implied from it. The same principle must apply to the General Assembly of Ohio and its constituent branches, because all *powers*not delegated in the Constitution of Ohio, remain with the people. Article I, Section 20.

Therefore, looking into the Constitution for the authority claimed here, what do we find? The whole legislative power of the state, whatever that may include, is vested in the General Assembly,, consisting of the Senate and House of Representatives (Article II, Section 1); and it is provided that the General Assembly shall not exercise any judicial power which is not expressly conferred in the Constitution (Article II, Section 32). Assuming that the power which is claimed here is conferred by these sections of the Constitution upon the General Assembly as a whole, does it follow that the same power is conferred upon each of its constituent parts? Certainly not. A substantive legislative act, that is, one which is not merely a matter of procedure, must be performed by the General Assembly and not by some of its constituent parts. For that reason the Constitution proceeds to define the powers of each branch of the General Assembly. These provisions need not be quoted here. They are found in Article *47II, Sections 6, 7, 8, 9, 14, 15, 17 and 23. Here, and here only, are found the powers granted to the Senate or House acting separately. The power of seeking information for general legislative purposes is not found here, and it is not implied unless it be necessary to the proper exercise of the special jurisdiction which is expressly granted to either branch of the General Assembly, as, for example, the judging of the election, returns and qualifications of its own members, the expulsion of a member, etc.

But in Section 8 of Article II, we have, as we construe it, a positive negation of the powers which are claimed for a single branch of the General Assembly in this case. That section is as follows: “Each house, except as otherwise provided in this Constitution, shall choose its own officers, may determine its own rules of proceeding, punish its members for disorderly conduct; and, with the concurrence of two-thirds, expel a member, but not the second time for the same cause; and shall have all other powers, necessary to provide for its own safety, and the undisturbed transaction of its business.” The last clause of this section restricts the phrase “all other powers” to such powers as are necessary to secure the safety of each house and the peaceable transaction of its business, thereby excluding from the grant all powers which are not included in the class named. The familiar maxim of interpretation, *Expressio unius est exclusio alterius,*applies here; for logically the express grant of certain powers and silence as to others is necessarily a withholding of those not named. It seems to us that this construction of Section 8 of Article II, of the *48present Constitution, is very much strengthened by the variance which is disclosed by. comparison with Section 11 of Article I, of the Constitution of 1802. The last-named section is substantially the same as the one now in force, except in the last clause which is as follows: “and shall have all other powers necessary for a branch of the Legislature of a free and independent state.”

It is certain that if the doctrine of inherent powers of legislative bodies ever had any existence under a constitutional government it was recognized and granted in this broad language of our former Constitution, and that it was not included in the grants of the present Constitution; but without attempting to define the extent of powers conferred by this clause of the Constitution of 1802, it is obvious to the most casual reader that it is much broader than the grant of power in the present Constitution. It is inconceivable that a convention called “to revise, amend or change the Constitution of this state” should not have noticed the difference in the language of the two Constitutions and should not have appreciated the significance of the change. The conclusion would, therefore, seem to be irresistible that the framers of the Constitution designedly narrowed the grant of powers to each house of the General Assembly to those which are expressly mentioned.

But it is said that even, if it be so that a single branch of the General Assembly could not by itself constitutionally appoint an investigating committee for purposes such as proposed here, it is nevertheless authorized to do so by an act of the whole General Assembly and that this com*49mittee was expressly appointed by the Senate under and by virtue of Sections 50 to 55, inclusive, of the Revised Statutes of Ohio. If a single branch of the General Assembly has nó constitutional power to appoint this committee, it must be obvious that the whole Legislature can not authorize it to do so. The Constitution is above the Legislature, and the legislative power which may be delegated to the General Assembly can not be redelegated to some other body.

We do not, however, accept the construction of the statute which is contended for by the relator. The Sections 50 to 55, inclusive, of the Revised Statutes, may be found as originally enacted March 30, 1872, in 69 O. L., 61,’where the act is entitled “An act to authorize committees of the General Assembly to compel the attendance of witnesses, and for other purposes.” From the title of the act and from its purview, it is apparent that the thought of authorizing the appointment of standing-'or select committees by the General Assembly itself or by a single branch thereof was not in the mind of the Legislature; but that, assuming them to have been already appointed (and nobody ever questioned the right of either branch of the General Assembly to appoint such committees in regard to matters over which such house has express authority in the Constitution) the General Assembly proceeds to provide for their greater efficiency in the discharge of their functions, by providing a mode and authority for' compelling the' attendance of witnesses, the punishment for contempt, etc. We are entirely unable to see how the construction of these sections of the Revised Statutes as contended for by the re*50lator can be fairly put upon them; and if they could be so construed, then, entertaining the views which we have already expressed as to the constitutional powers of a single branch of the General Assembly, we would feel compelled to declare this legislation to be unconstitutional. We prefer a construction which would allow the statute to stand with the Constitution, by applying it only to matters or procedure by committees which have been otherwise duly and constitutionally appointed.

It was suggested in argument that the appropriation (98 O. L., 42) by the concurrent action of both houses of the General Assembly is a ratification of the Senate resolution. It is perhaps a sufficient answer to this to recall once more the indefinite character of the appropriation. It is not a definite appropriation for the use of the committee appointed by the Senate resolution, but for the use of “committees.” Nor can it be. said that the making of an appropriation to the Senate contingent fund for a stated purpose is in the nature of a bill authorizing the committee; because it does not profess to authorize the committee or ratify the resolution of the Senate and because the resolution being void under the Constitution it could not be ratified.

In behalf of the respondent it has been argued with much force and keen analysis that upon the face of the Senate resolution the scope and purpose of the inquiry is an exercise of judicial power, which is expressly forbidden by Article II, Section 32, of the Constitution, and therefore that it is beyond the power of the General Assembly. *51It is not necessary to decide this question in this case and therefore we do not pass upon it.

*People, ex rel.,*v. *Keeler,*99 N. Y., 463, has been vigorously pressed upon our attention, by counsel for the relator, as decisive of this case; but we do not regard it as controlling or even persuasive, for several reasons, the chief of which are: First, that the Constitution of the state of New York contains no such distinct distribution of powers as is found in the Constitution of this state; and, second, that the court in that case expressly held that certain powers in their nature judicial belong to the Legislature of the state of New York, and that therefore a statute is not necessarily void which involves action on the part of either house which is in its nature judicial. Such a decision could not have been made under the provisions of the Constitution of Ohio to which we have referred, especially Article II, Section 32.

The demurrer to the petition is sustained and the

*Petition dismissed.*

Shauck, C. J., Price and Summers, JJ.,~ concur. Crew and Spear, JJ., dissent.