In Re the Investigating Commission

OPINION OP THE COURT. To Sis Excellency John W. Savis, Governor of the State of Rhode Island and Providence Plantations : We have received from your Excellency a communication asking for our opinion upon the three following questions, to wit: “ First, Whether you have power to appoint and commission persons to inquire into the truth of certain representations which have been made to you of malfeasance and nonfeasance in the management of the state prison and some of the other penal institutions under the Board of State Charities and Corrections, and report the facts; “ Second, Whether, if persons be so appointed and commissioned, they can summon witnesses, and compel them to testify under oath to matters pertinent to the inquiry ; and, “ Third, Whether they will be protected in acting under their commission and making report to you.” We think your Excellency has power to appoint or employ others to make the inquiry for you and report the facts; but we are of opinion that the persons so appointed would not be officers within the meaning of section 5 of chapter 23 of the Public Statutes, which provides that “ a commission shall issue to every person elected to office by the General Assembly, to every justice of the peace elected by any town, and to every person appointed to office by the governor,” and that therefore their commission, if their appointment be by commission, will give them no power and no protection which they would not have without it. We think the offices meant in the section quoted are offices recognized or created by the constitution or statutes of the State, not such appointments as are contemplated in your communication. We think the second question must be answered in the negative. Members of commissions of inquiry appointed by the governor are not mentioned among the officers and persons upon *753 whom power to administer oaths is conferred by statute, and we know of no rule or principle of the common law under which they can administer oaths, and, still less, under which they can summon witnesses and compel them to testify under oath before them. The way in which unwilling witnesses are compelled to testify is by fine or imprisonment for contempt. Power to punish for contempt is a high judicial power, exceedingly summary and absolute in its exercise. -It seems to be confined at common law in England to the two houses of Parliament and to courts of record, and in this country it has been held to have but little, if any, wider latitude. Remington & Perkins v. Peckham, 10 R. I. 550. We do not think the power can be implied in favor of the commission, because your Excellency has power to suspend, or, with the consent of the Senate, to remove from office, members of the Board of State Charities and Corrections for malfeasance or nonfeasance, or because it is declared by the constitution that “ the governor shall take care that the laws be faithfully executed,” for, as we remarked in the recent case of Hanley v. Wetmore, 15 R. I. 386, the governor, in performing his duty under this clause, “ has no arbitrary power, but must himself proceed according to law.” The first part of the third question is answered by our answers to the first and second questions. We think that the report of the commission of the facts elicited by their inquiry would be regarded as a privileged communication, and as such would not be actionable without proof of express or actual malice. Thomas Dureee, Charles Matteson, John H. Stiness, P. E. Tillinghast, George A. Wilbur.