Newark evening star and Newark advertiser. [volume] (Newark, N.J.) 1909-1916, 1910-07-29
IN EEZSE HETH MO B1THZR
SCHOOL PROBER5
TO CAUSE ARREST
OF MUTE WITNESS

CONTINUED from First Page.)
the committee was an offensive force.
The attorney-general's office said the
committee had power to make wit
nesses appear and testify.
That the Frelinghuysen committee
has ample power to continue its probe
of the methods, practises. expenses and
disbursements of the free public
schools of the State, is the opinion of
Assistant Acknowledgement Nelson b.
Gaskili. The opinion was made public
today when the committee which had
been temporarily halted in its work
of inquiry by the refusal of John DAILY,
of North Bergen, to answer questions,
resumed operations.
The opinion in part follows:
Il find by examination an act
of the Legislature entitled an act
to define the powers of legislative com
mittees of investigation approved
March IL, 1875; as well as a similar aet
entitled an act respecting the examina-
ton of witnesses before legislative com
mittees. and providing for the punish
lftttl III NJillCSECo iCAiGl1tfb "a ~
ing to appear or give evidence before
such committees approved March 8,
1895. The first of these w acts pro-
vides that any joint committee OF the
Legislature. any standing committee of
either house, or my special committee,
which shall have sbeen or nay be by
resolution directed to enter upon any
investigation or inquiry, shall have
power to subpoena witnesses, to adj
minister oaths, prescribing the penalty
for perjury, authorizing the employ
ment of legal and clerical assistance
and the payment of fees and expenses,
and further providing a penalty for
refusal to obey a subpoena and the
method of enforcement of such sub
poena.
Must Answer Questions.
1.-The second act, which contains in its
opening sentences the same language
as that quoted from the first act, d.
reefs thai all witnesses sworn or af-
firmed before such committee shall
truly answer all questions put to them
which the committee shall decide to be
proper and pertinent with a proviso
that no witness shall be excused from
answering upon the ground that such
answer might tend to incriminate; that
no answer made shall be admitted in
evidence in any proceeding except in
ease of a criminal proceeding for per-
jury; and provides further, II any
such witness shall refuse to answer
any question so decided to be proper
and pertinent. he shall be deemed guilty
of a misdemeanor,' with a similar pen
atty provided for refusal to appear or
refusal to be sworn or affirmed.
"In the case of Lang VS.. Bayonne
Chief Justice Gummere held that an
act of the Legislature was to be con-
sidered as a valid act until determined
otherwise by a court of competent
jurisdiction. This rests, of course, upon
the theory thai the only arm of gov
eminent with authority to declare an
act of the Legislature null and void,
after it has become a law, Is the
judiciary, and that until the judiciary
had acted the expression of the Legis-
iature bound all good citizens. This
in itself should be sufficient to close
the dispute upon the applicability of
these two statutes to the existing
situation until a court of competent
jurisdiction shall have decided ad-
versely thereon.
Powers of Commission.
But | am satisfied from an exam
nation of these statutes of their suff1-
cheney.
The first act authorizes. YOU COM
mission to compel the attendance of
witnesses, to administer oaths, renders
a witness swearing falsely guilty of
perjury, and provides a process of ar
rest to compel the attendance of a wit
ness who refuses to respond to a proper
subpoena. The second act makes
mandatory the duty of a witness to
answer questions which the committee
shall decide to be proper and pertinent;
provides that no witness shall be ex-
cused from answering such questions
upon the ground that the same might
or would incriminate or tend to in
criminate him, with a proviso that no
such answer shall be admitted in evil
dence in any proceeding except in the
case of a criminal proceeding for per-
jury. Refusal to answer such proper
questions is constituted a misdemeanoF,
nC Ohly DOlliO1 VII liiiS ~ NHlNIi -
inconsistent with the former act, SO
that it might act as a repeater thereof
is the second section. which provides
that a neglect or refusal to appear on
to be sworn or affirmed shall be deemed
to be a misdemeanor, WHICH seems tc
take the place of a proceeding for ar
rest, as contained in the first statute
The refusal to answer questions de-
cided by the commission to be peril
nent is constituted a misdemcanor.
There seems to be. under these statutes
M power to punish for contempt, and
the process established in case of a re-
fusal to appear to be sworn or Il
answer a pertinent question lies
through a criminal prosecution, fol-
which the statute provides an appropri-
ate remedy. Very truly.
(Signed) "NELSON 3. GASKILL,
Assistant Acknowledgement"
County Register John ID. Mcmahon
who refused to answer questions last
week, by advice of counsel. did tins
same. Lawyer McCausey said he rep
resented the efforts of the NORTH
Bergen School Board contractors and
others as witnesses and had advised