In re Doyle

By a joint resolution of the Senate and the Assembly of the State of New York, adopted March 23, 1931, it was resolved that a joint legislative committee be constituted to investigate the administration and conduct of the various departments of the city of New York.

The appellant, William F. Doyle, was subpoenaed to attend before the committee, and upon appearing was directed to answer a series of questions relating to his practice before the Board of Standards and Appeals. There had been preliminary testimony from the lips of other witnesses that fees of extraordinary magnitude had been paid for his services during a period of years. The questions put to the appellant were designed to inform the committee whether he had divided these fees with a political leader, or with some one else, in furtherance of a concerted plan of bribery and corruption, and whether he had paid any part of them as a bribe to any public officer.

The appellant has been adjudged in contempt, first by a majority of the joint legislative committee, and then by the Supreme Court, for his refusal to answer the questions propounded. Typical questions are these: “ Question: When you practiced before this board, did you split your fees? Answer: Do you mean with the Board of Standards and Appeals? Question: I mean did

We are to determine whether the refusal was contumacious or privileged.

The Constitution of the State provides that no person “ shall be compelled in any criminal case to be a witness against himself” (Const, art. I, § 6).

The privilege may not be violated because in a particular case its restraints are inconvenient or because the supposed malefactor may be a subject of public execration or because the disclosure of his wrongdoing will promote the public weal.

It is a barrier interposed between the individual and the power of the government, a barrier interposed by the sovereign people of the State; and neither legislators nor judges are free to overleap it.

The appellant is, therefore, privileged to refuse to answer questions that may tend to implicate him in a crime, unless by some act of amnesty or indemnity, or some valid resolution equivalent thereto, he has been relieved from the risk of prosecution for any felony

The respondent insists that immunity co-extensive with the requirements of this rule has been assured to the appellant by statute and resolution: by section 381 of the Penal Law as to the completed crime of bribery; by section 584 of the Penal Law as to the crime of conspiracy; and as to any and all crimes by the joint resolution of the two houses of the Legislature.

Penal Law, section 381, provides as follows: “A person offending against any provision of any section of this chapter relating to bribery and corruption, is a competent witness against another person so offending, and may be compelled to attend and testify upon any trial, hearing, proceeding, or investigation, in the same manner as any other person. But the testimony so given shall not be used in any prosecution or proceeding, civil or criminal, against the person so testifying. A person so testifying to the giving of a bribe which has been accepted, shall not thereafter be hable to indictment, prosecution, or punishment for that bribery, and may plead or prove the giving of testimony accordingly, in bar of such an indictment or prosecution.”

An argument is • made for the appellant that the immunity created by this section is in contravention of restrictions established by the Constitution of the State. The Constitution (Art. XIII, § 3) authorizes the exemption of the briber who testifies to the giving or offering

Section 381 of the Penal Law is thus a valid statute, to be accepted at its face value. Whatever immunity it purports to give is the safe and sure possession of any witness who invokes it after being brought within its terms. But the immunity that it purports to give is limited and narrow. The witness is relieved of the risk of prosecution in one situation and one only: he must have testified to the offer or giving of a bribe which has been accepted (People v. Anhut, 162 App. Div. 517 ; 213 N. Y. 643 ). If there has been a conspiracy to bribe without evidence of acceptance, the supposed exemption fails. If there has been an offer without acceptance, it fails again. The purpose of this section of the statute, following in that respect the purpose of the Constitution (Art. XIII, § 3), is to reach the bribe-taker as the chief delinquent, and let the briber go if thereby the taker can be held. There is no token of a purpose that a like

We pass then to the question of the immunity offered to the witness against a prosecution for conspiracy.

The risk of such a prosecution is a real one unless a statute has removed it. Let us suppose that there is testimony by the witness that he split his fees with a political leader, or some one other than a public officer. Let us suppose that he did this under an agreement that the sharer of the fees would control by influence or by the payment of money the decisions of the Board of Standards and Appeals. Let us suppose further that there is no evidence establishing the acceptance of the money by any member of the Board or any one connected with it, no tracing of the bribe into the hands of any one invested with the functions of an office. Prosecution of a public officer for the crime of bribery or corruption will be impossible in such conditions. What will be possible will be a prosecution of the witness and his confederates for the crime of conspiracy to corrupt, or conceivably for an attempt to bribe. The risk that the prosecution will take the first of these forms is not remote, or unsubstantial. We know from recent records of criminal trials that men charged with paying or receiv

The section reads as follows: “No person shall be excused from attending and testifying, or producing any books, papers or other documents before any court, magistrate, or referee, upon any investigation, proceeding or trial, for a violation of any of the provisions of this article, upon the ground or for the reason that the testimony or evidence, documentary or otherwise, required of him may tend to convict him of a crime or to subject him to a penalty or for forfeiture; but no person shall be prosecuted or subjected to any penalty or forfeiture for or on account of any transaction, matter or thing concerning which he may so testify or produce evidence, documentary or otherwise, and no testimony so given or produced shall be received against him upon any criminal investigation, proceeding or trial.”

The statute is not adequate to relieve the witness of his peril. It is limited to an investigation, proceeding or trial before a “ court, magistrate or referee,” and to such an investigation conducted for a violation of the “ provisions of this article,” i. e., the article relating to conspiracy. It is very different from the statute considered in the Sharp case (Penal Code, § 79, now Penal Law, § 381; People v. Sharp, 107 N. Y. 427 , 451, 454), which though narrow in the range of the immunity conferred did not attempt to distinguish between an investigation for one purpose and an investigation for another. The immunity was to be the same whether the hearing was before a committee in aid of future legislation or before a judge or a referee for the punishment of crime.

If doubt as to its meaning could survive the mere reading of its terms, the history of its enactment would cause the doubt~to be dispelled. Section 584 came into the Penal Law in 1910 by the enactment of chapter 395 of the Laws of 1910. The General Business Law (Cons. Laws, ch. 20)- already contained a provision prohibiting monopolies and authorizing an investigation before a judge or referee in aid of their suppression (Gen. Bus. Law, §§ 340, 344; cf. Laws of 1899, ch. 690, § 6; Laws of 1897, ch. 383, § 7). On the same day that section 584 was added to the Penal Law, the Legislature amended the General Business Law by incorporating in it the grant of an immunity in precisely the same form (Gen. Bus. Law, § 345, as amd. by Laws of 1910, ch. 394). This explains the mention of a referee in each of the two statutes. A witness testifying before a referee appointed under the General Business Law (the so-called Donnelly act) might be indicted (if he was not immune) either for violation of the provisions of that act, or (if the unlawful monopoly was the act of two or more) for the violation of article 54 of the Penal Law, which denounces as a crime a conspiracy to “ commit any act injurious * * * to trade or commerce ” (Penal Law, § 580, subd. 6). To make the immunity secure, the two statutes were thus adopted on the same day, one amending section 345 of the General Business Law and the other in the same words amending the Penal Law by adding section 584 thereto. Obviously, the Legislature when it amended the General Business Law by giving immunity to a witness testifying “ before any court, magistrate or referee, upon any investigation, proceeding or trial, pursuant to or for a violation of any of the provisions of this article,” had in view, not a hearing before a legislative committee to gather infor

We think the conclusion is inescapable that the witness, if compelled to testify as to any act or agreement not amounting to the completed crime of bribery, will be subject to indictment for conspiracy, and that section 584 of the statute will not render him immune.

The suggestion is not ignored that conspiracy is a misdemeanor, not a felony, and that some of the inquiries have relation to acts or agreements more than two years old, as to which the Statute of Limitations may constitute a bar. A statute of limitations is equivalent to an act of amnesty when the crime erased by lapse of time is one standing by itself, and is not a clue to the commission of other crimes thereafter (Brown v. Walker, 161 U. S. 591 , 598; 4 Wigmore on Evidence, § 2279). Clearly it is no such equivalent when the crime is a continuing conspiracy, unaffected by any limitation till the combination is abandoned (United States v. Kissel, 218 U. S. 601 ).

A witness is not required to show, in order to make his privilege available, that the testimony which he declines to give is certain to subject him, to prosecution, or that it will prove the whole crime, unaided by testimony from others. It is enough, to wake the privilege into life, that there is a reasonable possibility of prosecution, and that the testimony, though falling short of proving the crime in its entirety, will prove some part or feature of it, will tend to a conviction when combined with proof of other circumstances which others may supply.

The privilege is not removed if there are loopholes in

What has been said as to the risks to which the witness is subjected applies to those questions and those only that are directed to a corrupt agreement between the witness and a confederate not occupying a public office, or to an agreement between the witness and an officer not affecting official action, or not consummated thereafter by payment of the bribe. Inquiry as to a consummated bribery stands upon a different footing. The witness may be compelled to state whether payments for corrupt purposes affecting official action were accepted by an officer, for in making proof of the acceptance he brings himself automatically within the indemnity secured by Penal Law, section 381, to one who testifies to a bribe which has been offered and accepted. There was, therefore, contempt of the committee when the witness after stating that he had never bribed any member of the Board of Standards and Appeals, declined to answer this question: “ Did you bribe any other public official? ” If the bribe is admitted, all the circumstances attending it may thereupon be explored, the name of the officer, the purpose of the payment, and the particulars of time and place.

The effect of the joint resolution of the two houses of the Legislature is still to be considered.

By the terms of the joint resolution creating the legislative committee, the Legislature has said: “ Whenever in its judgment the public interest demands, the committee may determine that a person shall not be excused from attending and testifying before said committee * * * on the ground that the testimony * * * required of him may tend to incriminate him or to subject him to a penalty or forfeiture; but no person so attending and testifying * * * who has duly claimed excuse or privilege, which would be sufficient except for this pro

This resolution, if valid, is in effect an act of amnesty. It wipes out as to the witness whose claim of privilege has been denied the criminal statutes of the State with all their pains and penalties, and, like a pardon, makes him a new man. A pardon may be granted by the Governor after conviction of the crime (Const, art. IV, § 5). An act of amnesty may be passed, like any other bill, by the Legislature, acting separately in its two houses (Art. Ill, § 15), with the approval of the Governor, or in the event of his veto, by a two-thirds vote thereafter (Art. IV, § 9). “ Every bill which shall have passed the Senate and Assembly shall, before it becomes a law, be presented to the Governor; if he approve, he shall sign it; but if not, he shall return it with his objections to the house in which it shall have originated ” (Const, art. IV, § 9). This resolution was never presented to the Governor. It never received his approval or his veto. It is not an act of amnesty; it is not an “ act ” at all (People ex rel. Argus Co. v. Palmer, 12 Misc. Rep. 392 ; 146 N. Y. 406 ).

There are precedents in the books for what is sometimes styled a legislative pardon. If they are scrutinized, they will be found in every instance to have been statutes in the usual form. They were acts of amnesty or indemnity adopted by the Legislature with the Governor’s approval (United States v. Hughes, 175 Fed. Rep. 238 ; United States v. Hall, 53 Fed. Rep. 352 ; State ex rel. Anheuser-Busch Brewing Assn. v. Eby, 170 Mo. 497 ; State v. Applewhite, 75 N. C. 229 ; cf. Brown v. Walker, 161 U. S. 591 , 601; Matter of Garland, 4 Wall. [U. S.] 333; 4 Wigmore on Evidence, § 2281, and statutes and cases there

The argument is made that a legislative body has inherent power to conduct an investigation for the discovery of abuses in the operations of government (People ex rel. Karlin v. Culkin, 248 N. Y. 465 , 478; People ex rel. McDonald v. Keeler, 99 N. Y. 463 ; McGrain v. Daugherty, 273 U. S. 135 ; Sinclair v. United States, 279 U. S. 263 ; Landis, Constitutional Limitations on the Congressional Power of Investigation, 40 Harvard Law Review, 153), and that the power to give immunity to witnesses and to suspend to that extent the general laws of the State, must be deemed to be a necessary incident of the power to investigate. But it is not such an incident. It may at times be a useful incident, but it is not a necessary one, necessary that is to say, in the sense of being a power so indispensable to the ordinary exercise of the investigating function that it must be taken as implied. Modern scholarship has traced back for centuries the capacity of a legislative body to equip itself for the task of legislation by discovery of the facts (Landis, supra). If the power to suspend the laws in furtherance of the inquiry inheres in the inquirer without the aid of any statute, we can only regard it as extraordinary that so many investigations have been able to proceed without an attempt to use it. The parliamentary practice in Great Britain will be referred to later on. For the moment we confine ourselves to the practice in the United States. There is no record in the books of even a

The conclusion, we think, is inescapable that a power to suspend the criminal law by the tender of immunity

We have postponed to this stage the consideration of an argument that is drawn from the practice of the British Parliament.

The practice, instead of tending to give support to the validity of a resolution obliterating guilt, tends directly the other way.

The privilege against self-incrimination in so far as it exists in England does not derive its sanction from a written constitution, and is not binding upon the Houses of Parliament in a parliamentary inquiry. The privilege in New York applies to an investigation by a Legislature as fully as to a trial in court (People v. Hackley, 24 N. Y. 74 ; People v. Sharp, supra; Sinclair v. United States, supra). The House of Lords does not compel an answer unless complete immunity is given. The House of Commons at times has been satisfied with less.

There is, however, an established practice whereby the members of the House of Commons, its officers, and shorthand writers are prohibited from making public in a court of justice or otherwise any testimony brought out upon a parliamentary inquiry without special leave of the house, which according to usage is not given if the testimony will expose to prosecution for a crime (Cushing, Law & Practice of Legislative Assemblies, §§ 983, 1001, 1002, 1004; Hansard, Parliamentary Debates, 2d series, p. 970; cf. 2 Redlich, The Procedure of the House of Commons, p. 193).

In other words, the prohibition, even in respect of disclosure by members of the house or persons in its service, is limited to the use as a confession of the very testimony given by the witness in the course of the inquiry, and does not reheve him from prosecution for the crime if a case can be proved without the use of the confession, though by following up its clues (Cushing, supra, § 1005; Hansard, supra, vol. 23, pp. 1190, 1191, 1197, 1198).

For this there is need of an act of indemnity which requires the concurrence of both houses and the approval of the Crown (Cushing, supra, § 1005; Hansard, supra, vol. 23, p. 1190 et seq.).

Accordingly we hear of a case in the year 1742 where in consequence of the refusal of witnesses to testify before a select committee to inquire into the conduct of the Earl of Oxford, the House of Commons found it necessary to pass a bill to indemnify such witnesses as should testify truly before the committee, but the bill was rejected by the Lords (Cushing, supra, § 1005, note).

Nearly a century later in the debate on the East Retford Witnesses bill, the Marquis of Salisbury referred in his speech to the precedents in Shoreham’s case (1771 and 1782), and in other cases where an act of indemnity had been passed to make the immunity complete (Hansard, supra, vol. 23, p. 1190 et seq.).

The parliamentary precedents are thus of no avail to sustain the resolution in a State where the privilege of silence is created by the Constitution, and is satisfied by nothing less than obliteration of the crime (Counselman v. Hitchcock, supra; People ex rel. Lewisohn v. O’Brien, supra).

We do well to remember in weighing the significance of the English practice that publication of the proceedings of either of the Houses of Parliament, publication even of the debates, is a breach of privilege and a contempt unless the publication is by permission, tacit or express (21 Halsbury, Laws of England, Parliament, § 1472; Redlich, Procedure of the House of Commons, vol. 2, pp. 36-38; Lowell, The Government of England, vol. 1, pp. 243, 244).

Nowhere in the United States does such a privilege exist.

A final argument is made that the risk of prosecution is unreal and unsubstantial, since it is not to be supposed that a District Attorney would prosecute a witness in the face of a solemn declaration of the will of two houses of the Legislature that the witness should go free. This argument ignores the provisions of article XIII, section 6, of the Constitution that “ any district attorney who shall fail faithfully to prosecute a person charged with the violation in his county of any provision of this article which may come to his knowledge, shall be removed from office by the Governor, after due notice and an opportunity of being heard in his defense.”

The witness is within his privilege in insisting that the basis for his immunity shall be something more substantial than the grace or favor of the prosecutor who may bring him to the bar of justice (Code Crim. Proc. §§ 671, 673; The Whisky Cases, 99 U. S. 594 ; Temple v. Commonwealth, 75 Va. 892 , 897; Matter of Irvine, 74 Fed. Rep. 945 , 964, per Taft, J.). To uphold a finding

Nothing to the contrary was intimated in People v. Whipple ( 9 Cow. 707 ). The only question before the judge in that case was whether in the exercise of a sound discretion he would receive the testimony of an accomplice and recommend a pardon. There are statements in the course of the opinion which the Supreme Court in the Whisky cases characterized as “ unguarded ” (The Whisky Cases, supra, at p. 605). If we take them at their face value, they do not rule the case at hand. The recommendation of clemency is stated to be a recommendation and nothing more, and the Executive is free to heed or to reject it. Conceivably he will give not a full pardon, but a limited one, or a pardon coupled with conditions. Neither in the' Whipple case nor in any other case decided in this State is there a ruling that an accomplice may be compelled against his protest to testify to his crime and to accept as adequate indemnity the hope of pardon in the future (Taft, J., in Matter of Irvine, supra).

When upon the face of a question it would seem that to answer could not tend to implicate in crime, a court will exercise a discretion in determining whether to accept the mere conclusion of the witness that the tendency is present (Mason v. U. S., supra), though in every instance the conclusion is entitled to weight (People ex rel. Taylor v. Forbes, 143 N. Y. 219 ). On the other hand, when the obvious effect of the question is to call for the confession of criminality, when that indeed is its avowed purpose, immunity is not adequate unless the crime has been obliterated.

The upshot of the whole discussion is, therefore, this: The witness has immunity by force of Penal Law, section 381, sufficient to call for a response as to payments to public officers to affect their public acts. The witness has no immunity by force of section 584 or otherwise sufficient to call for a response as to a mere conspiracy to bribe, not followed or accompanied by payment, or as to any corrupt agreement halting at the stage of mere attempt.

The way to compel disclosure as to conspiracies and attempts is not obscure or devious. A grant of immunity similar to the one contained in the resolution may be embodied in a statute. The Legislature, when it convenes, may pass an act of amnesty with the approval of the Governor, an act of amnesty co-extensive with the privilege destroyed. The appellant as well as other witnesses will then be under a duty to declare the whole truth, irrespective of the number or the nature of the crimes exposed to view. Even if we were able to read a different meaning into the statutes now existing, the time in all likelihood would not be distant when there would be need of supplemental legislation to give immunity

We are not unmindful of the public interests, of the insistent hope and need that the ways of bribers and corruptionists shall be exposed to an indignant world. Commanding as those interests are, they do not supply us with a license to palter with the truth or to twist what has been written in the statutes into something else that we should like to see. Historic liberties and privileges are not to bend from day to day “ because of some accident of immediate overwhelming interest which appeals to the feelings and. distorts the judgment ” (Holmes, J., in Northern Securities Co. v. United States, 193 U. S. 197 , 400), are not to change their form and content in response to the “ hydraulic pressure ” (Holmes, J., supra) exerted by great causes. A community whose judges would be willing to give it whatever law might gratify the impulse of the moment would find in the end that it had paid too high a price for relieving itself of the bother of awaiting a session of the Legislature and the enactment of a statute in accordance with established forms.

The order of the Appellate Division and that of the Special Term should be modified by directing that the appellant stand committed until he answers the question whether he has bribed any public officer, such imprisonment not to exceed the period of thirty days, and as so modified affirmed.

(concurring). Whatever doubt I had as to the.extent of the immunity furnished by section 584 of the Penal Law, it is cleared away by the reading of other provisions dealing with witnesses. When the Legislature intended full and complete immunity, it knew the phrase

See, also, the law relating to the elective franchise. Section 770 of the Penal Law enacts: “ A person offending against any section of this article is a competent witness against another person so offending and may be compelled to attend and testify on any trial, hearing or proceeding or investigation in the same manner as any other person. ’ ’ Any person so testifying shall not be prosecuted.

The immunity for conspiracy is not so broad, not so complete. It is limited to investigations before any court, magistrate or referee. The phrase in section 584 of the Penal Law is: “ No person shall be excused from attending and testifying, or producing any books, papers, or other documents before any court, magistrate, or referee, upon any investigation, proceeding or trial, for a violation of any of the provisions of this article.” Such a limitation of immunity from prosecution is not infrequent in the statutes. It is made dependent upon appearance as a witness before various persons, or bodies. (See the following: Conservation Law [Cons. Laws, ch. 65], § 8, subd. 4; Agriculture and Markets Law [Pons. Laws, ch. 69], §§ 32 and 33; Gen. Bus. Law, § 345; Gen. Corp. Law [Cons. Laws, ch. 23], § 170; Ins. Law [Cons. Laws, ch. 28], §§ 65 and 89.) By this latter law the witness is given protection when testifying “ before any court or magistrate, upon any investigation, proceeding or trial.” The word “ referee ” is left out.

By section 395 of the Penal Law, relating to bucket shops, the witness to have immunity must testify before “ any court or magistrate, upon a trial, investigation, or

The Public Service Law (Cons. Laws, ch. 48), section 20, provides but a restricted immunity.

Comparing, therefore, section 584 of the Penal Law with these other statutes shows that the words “ any investigation ” do notcover legislative investigations but investigations before any court, magistrate or referee. The place and the tribunal must have been intentional restrictions or limitations upon the protection to be furnished, as the Legislature left them out when providing for full and complete immunity upon any trial, proceeding or investigation.

For these additional reasons I concur in the opinion of the Chief Judge.

(dissenting in part). The Legislature has power to compel the attendance of witnesses and the production of books and papers in order that it may perform its constitutional functions in enacting laws to correct real or apprehended dangers. It may delegate this power to a legislative committee by resolution. (Briggs v. Mackellar, 2 Abb. Pr. 30 ; Burnham v. Morrissey, 14 Gray [Mass.], 226; People v. Learned, 5 Hun, 626 ; People ex rel. McDonald v. Keeler, 99 N. Y. 463 ; McGrain v. Daugherty, 273 U. S. 135 , 175; Sinclair v. United States, 279 U. S. 263 .)

In authorizing such an investigation the Legislature is not passing a law by bill, as statutes are enacted, subject to the approval of the Governor. (N. Y. Const, art. Ill, § 14; art. IV, § 9.) It is exercising an incident to the sovereign power of making laws and initiating legislation and in the exercise thereof it may not be subjected to restraint within the field as thus defined

The purpose of such legislative investigations is not to detect crime, for the detection of crime is not a legislative function; nor to conduct fishing expeditions into private papers and affairs in the hope that something degrading may be pulled up. (Sinclair v. United States, supra.) Criminal acts may, however, be disclosed by the witnesses. The purpose is to enable the Legislature to exercise its law-making power under the Constitution. If the questions put to the witness are pertinent- to the matter under investigation the -witness must answer unless he in good faith asserts the constitutional privilege against a real danger of self-incrimination. “ No person shall be * * * compelled in any criminal case to be a witness against himself.” (N. Y. Const. art. I, § 6.)

The constitutional privilege when it otherwise exists may be met only if the witness is given immunity, not from self-incrimination in the broadest sense, but from criminal prosecution in the courts of this State “ for or on account of any transaction, matter or thing, concerning which he may testify, or produce evidence.” (Brown v. Walker, 161 U. S. 591 .) A provision that the evidence given by the witness shall not be received against him does not afford complete protection for it leaves the door open to bis successful prosecution without the use of such evidence. (Counselman v. Hitchcock, 142 U. S. 547 .) This court has adopted the Federal rule. (People ex rel. Taylor v. Forbes, 143 N. Y. 219 , 229;

The resort to immunity statutes seems to have proved itself a valuable and satisfactory aid in the ascertainment of facts in many cases. In New York such statutes exist in numbers, varying in language but indicating a general legislative purpose to grant immunity to a helpful criminal whenever public policy so dictates. They are entitled to the fullest faith and credit that a fair construction of their language permits. Else they become pitfalls for the unwary.

Under Penal Law, section 381, a person who testifies on any “ trial, hearing, proceeding or investigation ” to the giving of a bribe which has been accepted shall not be hable to prosecution for that bribery. The word “ investigation ” as used in this section was construed as including a legislative investigation, and a legislative investigation was in effect held to be a prosecution for receiving the bribe, under Const, art. XIII, § 3. (People v. Sharp, 107 N. Y. 427 .) But the immunity is limited and not general. It covers only protection for the bribery testified to. The same word is used Penal Law, section 584, which gives complete immunity to one who testifies upon “ any investigation, proceeding or trial ” for a violation of any of the provisions of Penal Law, article 54, entitled “ Conspiracy.” I fail to see any substantial reason for extending the meaning of the word “ investigation ” in relation to bribery as was done in People v. Sharp (supra) and limiting it to judicial proceedings in relation to conspiracy as in People v. Bryant Co. ( 114 Misc. Rep. 133 ). Varied phraseology should not lead to subtle distinctions in meaning when the essential purpose is the same. Grammar should yield to legal intention. To effectuate the general legislative purpose, the word should be given as wide a construction as is necessary to protect the witness in his disclosures. Thus it has been held that the examination of a witness before

The immunity granted is not general in language and may not be in effect, if we are to give meticulous heed to the decisions of this court and the Supreme Court of the United States. It does not cover the offer of a bribe to a public officer which is not accepted. (Penal Law, § 379.) Conceivably other crimes under the State law may be revealed by the testimony of the witness which are not covered by the numerous statutory immunities. Although the immunity need not be so broad as to cover the faintest trace of possible criminality (Brown v. Walker, supra), when we are dealing with a constitutional privilege, in the absence of a statute authorizing a grant of immunity in all criminal cases, we should not hastily brush away its protection with the speculation that it will scarcely be needed. In the investigation before us it would seem that the opportunities of prosecution for self-disclosed offenses, where statutory immunity is not granted, while rare may not be so illusory as to constitute no “ real or probable danger ” to the witness. (People v. Priori, 164 N. Y. 459 ; Mason v. United States, 244 U. S. 362 .)

We must, therefore, consider the effect of the joint resolution under which the legislative committee is functioning. A legislative bill which governs all persons within the jurisdiction of the enacting power must be presented to the Governor before it becomes a law. (N. Y. Const, art. IV, § 9.) Particularly is this true of appropriation bills and without an appropriation an investigation committee would scarcely be able to function.

The power of the joint committee to grant immunity is given in the broadest terms, but it is given by a joint resolution and not by statute, and it is contended that it is beyond the legislative power to grant immunity by joint resolution to witnesses summoned before it. The answer hangs on the reasonable extent of the unquestioned right of the Legislature to compel witnesses to attend and give evidence for legislative purposes. What may they do with the witness if he proves recalcitrant? They may do all that is auxiliary to or implied in the legislative power. They may. punish for contempt. “ The power to punish for disobedience and contempt in refusing to attend is a necessary incident to the power to require and compel attendance.” (People ex rel. McDonald v. Keeler, supra, p. 483 .) But the witness may assert his constitutional privilege. This is a right which the vilest may claim for his protection but only so long as he acts in good faith in the face of danger of a criminal prosecution in this State. (Matter of Levy, 255 N. Y. 223 , 225.) May it be met by a grant of immunity from the committee acting under the terms of the joint resolution?

The grant of immunity is a legislative function. The

On narrower grounds the grant of immunity may serve a purpose. If information should be given under the legislative pledge of immunity which might lead to a possible prosecution of the witness for an offense where special immunity is not granted by statute, the danger of such a prosecution as a practical proposition would be “ so unsubstantial and remote ” that it would not be necessary to have a statute to provide against it. (Jack v. Kansas, 199 U. S. 372 ; Hale v. Henkel, supra.) Good faith and comity on the part of prosecutors should

The Legislature should not be deprived of its necessary and appropriate attributes by exacting limitations upon the meaning of language. A witness may use his privilege as a shield to protect himself. When in reason it is no longer needed for that purpose, he should not be permitted to use it as a dam to block the flow of legislative inquiry. At least, the range of inquiry should be more widely extended than the prevailing opinion would permit and the refusal to answer the questions asked should be held contumacious and not privileged.

The order should be affirmed.

Lehman, Kellogg, O’Brien and Hubbs, JJ., concur with Cardozo, Ch. J.; Crane, J., concurs in separate opinion; Pound, J., dissents in part and writes for affirmance.

Ordered accordingly.