For affirmance -- Chief Justice Vanderbilt, and Justices Oliphant, Burling, Jacobs and Brennan. For reversal -- Justices Heher and Wachenfeld. The opinion of the court was delivered by Jacobs, J. Heher, J. (dissenting). Mr. Justice Wachenfeld joins in this dissent.
The plaintiff appealed to the Appellate Division from an order entered in the Law Division of the Superior Court denying his application to stay a subpoena issued by a committee of the Board of Commissioners of Jersey City. We certified his appeal on our own motion. See R.R. 1:10-1.
On August 18, 1953 the board of commissioners adopted a resolution which created an investigating committee to examine all municipal officers and employees "in relation to the discharge of their official duties or conduct" and to investigate "such additional subjects, persons or matters falling within" its jurisdiction as may require examination. Three city commissioners, named as defendants herein, were designated as the committee and on September 20, 1953 they served a subpoena upon the plaintiff, a fellow city commissioner. The plaintiff appeared before the committee on September 21, 1953 and again on September 29, 1953 but testified only briefly. On October 15, 1953 Judge Proctor found that the plaintiff had engaged in contemptuous conduct before the committee and entered an order that he refrain from such conduct. On October 26, 1953 the committee issued a further subpoena directing the plaintiff to
appear and testify but before its return date the plaintiff instituted his action in the Law Division seeking the quashing of the subpoena and other incidental relief. His complaint charged generally that the committee was illegally created and its members "politically motivated"; that the defendants had combined to use the committee "for the unlawful purpose of defaming plaintiff"; that the statutes under which the committee acted are unconstitutional; and that the subpoena in effect restrained plaintiff "from attending to his official and political duties and affairs and is an unlawful and unwarranted invasion of his rights." The plaintiff moved for an order staying the subpoena pendente lite and relied entirely upon his complaint which bore a general verification in short form and on information and belief. The motion was denied by Judge Proctor on November 23, 1953 and on the following day notice of appeal was filed. Cf. R.R. 2:2-3(a)(1), (4); Salomon v. Jersey City, 12 N.J. 379, 383 (1953); Stiles v. Hammond, 21 N.J. Super. 237, 239 (App. Div. 1952); Warren v. Hague, 11 N.J. Super. 311, 315 (App. Div. 1951). Each of the points urged in support of the appeal will be considered although not in the order presented by the appellant.
The plaintiff contends that the committee is investigating alleged violations of the criminal law and that under In re Hague, 123 N.J. Eq. 475 (E. & A. 1930) such conduct, by the Legislature or its governmental subdivisions, trespasses upon the powers of the courts and grand juries in violation of the Constitution. Legislative investigations at both federal and state levels have a long history and have been the subject of extensive research and comment. See Eberling, Congressional Investigations (1928); McGeary, The Congressional Power of Investigation, 28 Neb. L. Review 516 (1949); Herwitz and Mulligan, The Legislative Investigating Committee, 33 Col. L. Rev. 4 (1933); Potts, Power of Legislative Bodies to Punish for Contempt, 74 U. of Pa. L. Rev. 691, 780
(1926); Goldmann v. Schettino, The Legislature -- Investigations, 2 Constitutional Convention of 1947, 1549 (1951); Note, Power of the Legislature to Punish for Contempt, 4 U. of Newark L. Rev. 189 (1939). Early records of the British Parliament and the American Colonies contain instances of legislative investigations and later records of the House of Representatives and the Senate as well as state legislative bodies are replete with similar precedents. As early as 1792 the House adopted a resolution authorizing the appointment of a committee to investigate General St. Clair's conduct of military affairs and the expenditure of related appropriations. See Landis, Constitutional Limitations on the Congressional Power of Investigation, 40 Harv. L. Rev. 153, 170 (1926). And in 1818 the Senate appointed a committee with broad powers to investigate General Jackson's conduct in waging the Seminole War. In 1781 the Virginia House of Delegates authorized its standing committees "to send for persons, papers, and records for their information," and in 1824 the New York Assembly appointed a committee to discover whether the charter of the Chemical Bank had been obtained corruptly. Many other illustrations may be found in the cited texts and articles; for present purposes it is sufficient to point out that prior to 1880 legislative investigations flourished virtually without any judicial interference.
In 1881 the Supreme Court decided Kilbourn v. Thompson, 103 U.S. 168, 26 L. Ed. 377 (1881). The banking house of Jay Cooke & Co. was in bankruptcy and it appeared that the Secretary of the Navy had made improvident deposits of public moneys in its London branch. The House of Representatives appointed a special committee to investigate a real estate pool in which the bankrupt had been interested and a settlement which had been made, resulting in alleged loss to the Government and other creditors. During the investigation Kilbourn refused to answer questions which were propounded by the committee and his refusal was sustained by the Supreme Court. In the course of the court's opinion, Justice Miller expressed the view that
the investigation was "simply a fruitless investigation into the personal affairs of individuals" which "could result in no valid legislation on the subject." As Dean Landis has pointed out, this narrow approach ignored the broader aspects of the investigation which bore directly on the important administrative problems connected with the use and disposition of public moneys and which were intimately related to the legislative functions of the House. Landis, supra, 217. Cf. Morgan, Congressional Investigations and Judicial Review: Kilbourn v. Thompson Revisited, 37 Cal. L. Rev. 556, 559 (1949):
"* * * Kilbourn v. Thompson indicates a lack of understanding as to just what the legislative function is. Legislatures exist not merely to enact laws. They have the equally important function of determining that laws should not be enacted and their decisions in the performance of this latter function must in the nature of things frequently be influenced by consideration of whether or not the power to legislate exists. Yet Kilbourn v. Thompson would prevent the legislature from gathering the information that it believes will enable it to make such decisions, to make them intelligently, and to persuade others that such decisions are correct."
Forty-six years later the Supreme Court dispelled the doubts which Kilbourn v. Thompson had created with respect to the validity and breadth of the congressional investigating power. In McGrain v. Daugherty, 273 U.S. 135, 47 S. Ct. 319, 71 L. Ed. 580 (1927), the Senate directed its committee to investigate charges of maladministration in the Department of Justice. A subpoena was dishonored by Mally S. Daugherty, a brother of the Attorney-General whose conduct of the Department of Justice was being investigated. In rejecting an attack on the subpoena and the ensuing arrest the Supreme Court broadly approved the power of inquiry in aid of the legislative function. In the course of his opinion Justice Van Devanter pointed out that the power is an essential and appropriate auxiliary to the legislative function; that the administration of the Department of Justice was plainly a subject on which legislation could be had; and that it was no valid objection to the investigation "that it might possibly disclose crime or wrongdoing" on the part of
the Attorney-General. In Opinion of the Justices, 96 N.H. 530, 73 A. 2 d 433 (1950), it was noted that while the Supreme Court in the Kilbourn case had questioned whether Congress could act "as the grand inquest of the nation" its views no longer represented the law, citing McGrain v. Daugherty, supra; Sinclair v. United States, 279 U.S. 263, 49 S. Ct. 268, 73 L. Ed. 692 (1929); Id., 279 U.S. 749, 49 S. Ct. 471, 73 L. Ed. 938 (1929); Jurney v. MacCracken, 294 U.S. 125, 55 S. Ct. 375, 79 L. Ed. 802 (1935). See Hurst, The Growth of American Law 35 (1950). See also Tenney v. Brandhove, 341 U.S. 367, 377, 71 S. Ct. 783, 95 L. Ed. 1019, 1027 (1951), rehearing denied 342 U.S. 843, 72 S. Ct. 20, 96 L. Ed. 637 (1951); Barsky v. United States, 83 U.S. App. D.C. 127, 167 F.2d 241 (D.C. Cir. 1948), certiorari denied 334 U.S. 843, 68 S. Ct. 1511, 92 L. Ed. 1767 (1948), rehearing denied 339 U.S. 971, 70 S. Ct. 1001, 94 L. Ed. 1379 (1950); United States v. Josephson, 165 F.2d 82 (C.C.A. 2 1948), certiorari denied, 333 U.S. 838, 68 S. Ct. 609, 92 L. Ed. 1122 (1948), rehearings denied 333 U.S. 858, 68 S. Ct. 731, 92 L. Ed. 1138 (1948), 335 U.S. 899, 69 S. Ct. 294, 93 L. Ed. 434 (1948). In the Tenney case [341 U.S. 367, 71 S. Ct. 789] the Supreme Court recognized that legislative investigations, whether by standing or by special committees, are now "an established part of representative government." Cf. United States v. Rumely, 345 U.S. 41, 73 S. Ct. 543, 97 L. Ed. 770 (1953).
In recent times legislative and executive agencies of both the federal and state governments have been engaged in extensive investigations of crime; the contention that their activities trespass upon the constitutional functions of courts and grand juries has been summarily rejected. See State ex rel. Hodde v. Superior Court, 40 Wash. 2 d 502, 244 P. 2 d 668 (Sup. Ct. 1952); In re Di Brizzi, 303 N.Y. 206, 101 N.E. 2 d 464 (Ct. App. 1951); Attorney-General v. Brissenden, 271 Mass. 172, 171 N.E. 82 (Sup. Ct. Jud. 1930). In State ex rel. Hodde v. Superior ...