Dauphin County Grand Jury Investigation Proceedings , 332 Pa. 289 ( 1938 )

For the first time in the history of this Commonwealth, its governor has petitioned this court to prohibit an investigation of allegedly criminal acts and this court has issued a prohibiting order, saying: "The grand jury cannot proceed under the present petition." The petition referred to is that of the District Attorney of Dauphin County asking the Court of Quarter Sessions of that County to charge the grand jury to investigate charges of wrong-doing by public officials and by others. These charges were made by a man who until April 27th last had been for forty months Attorney General of this State. This request the three judges of that court, after due consideration, unanimously assented to, declaring in an official return to this court that the charges "amount to malfeasance in office, bribery and conspiracy to cheat and defraud the Commonwealth." These judges further averred that to stop this investigation "would be serious to the best interests of the state." In the face of this return, this court has stopped this investigation. It is true that the order filed says that "leave is granted to amend or supplement it [the district attorney's petition] within twenty days . . . and unless so amended the writ of prohibition will be directed to issue." Whether the petition can be amended so as to satisfy the requirements of the majority opinion, remains to be seen. The fact is that the proposed investigation is stopped now and a writ of prohibitionmay issue in twenty days. The order made by this court is, under the facts stated, unprecedented, and any attempt to find warrant for it in either authority or reason is, in my judgment, a fruitless quest.

I consider the question raised by the Governor's petition, to prohibit the proposed grand jury investigation, one of the most important ever presented to this court in its 216 years of history. Since I am convinced that the decision of the majority is erroneous, my duty to dissent is clear. In 1923, the late ALEXANDER SIMPSON, then and for many years thereafter a member of this court, writing on "Dissenting Opinions" for the University of Pennsylvania Law Review, Vol. 71, page 205, at page 217, said: "If a judge is fully convinced, after a careful review of the matter, that the decision of the majority will wrongfully affect the citizens generally, or establish a precedent which will deprive other litigants of any of their constitutional, statutory or common law rights, he is not justified, even though he stands alone, in silently submitting to the opinion of his colleagues, however great they may be; for not infrequently by such insidious approaches great rights are minimized and finally destroyed." My view is that if the majority opinion is henceforth to be the law of this State, the immemorial rights of the people to have charges of wrong done to the body-politic by public officials and others, investigated by a grand jury, will in practical effect be minimized almost to the point of destruction.

The first errors in the majority opinion are found in that opinion's formulations of "the questions involved." It is there said: "The questions involved may be briefly stated to be: May the grand jury investigate the conduct of the executive branch of the State government? . . ." This question the majority opinion answers in the negative. My answer to the question thus posed by the majority is that the district attorney and the judges of Dauphin County nowhere asserted any intention to have investigated the executive branch of the State government. On the contrary, they proposed to have the grand jury investigate, as they declared, "unlawful andimproper conduct on the part of public officials and of others affecting the interests of the Commonwealth." An official'sunlawful conduct cannot be his official conduct; when any official's conduct is unlawful it ceases to be official. If a chief executive of this State or Nation should, for example, commit a crime, that crime is his private, not hisofficial act, and he is as much amenable to the criminal law for that crime as is the most obscure citizen of the land. In 1921 the then Governor of Illinois was tried in the criminal courts of his state on a charge of criminal conspiracy. The charge against him resulted from a grand jury investigation ordered by a local, or district court. See People v. Small,319 Ill. 437. (In fairness it should be stated that no charges of criminal wrongdoing have been made against the Governor of this State. The charges of criminal wrongdoing are made against others.) Furthermore, some of the persons whose allegedly unlawful acts the District Attorney and Judges of Dauphin County proposed to have the grand jury investigate were not even in public office, but were private citizens who, it is claimed, had unlawful dealings with certain members of the governor's cabinet.

The majority opinion then says (referring to "questions involved"): "Are uninvestigated campaign charges (that is, uninvestigated by the District Attorney) a sufficient basis for convening a grand jury?" It answers the question thus posed, also in the negative. My answer to that question is that it isthe right of a district attorney, if the district court consents, as it did here, to have a grand jury assist him in the investigation of allegations of criminal acts affecting the public and committed in whole or in part in his county. He is under no duty of preliminarily investigating these allegations, and, in fact, he has no adequate means of making such an investigation other than with a grand jury.

The majority opinion then says: "May a grand jury be convened on a petition which does not charge the commission of any specific offenses, and does not allege the commission of any crime within the jurisdiction of the Dauphin County courts?" My answer to that is that no law has ever required anywhere, as a prerequisite to a grand jury investigation, that a district attorney charge the commission of any specific criminal offense. The very purpose of a grand jury investigation is to determine whether or not criminal offenses have been committed. If a district attorney was already in possession of facts justifying the charge by him of criminal offenses, a grand jury investigation would be merely an expensive superfluity. The district attorney's petition does aver that "grave and serious charges have been made by Charles J. Margiotti [former Attorney General] and others concerning the conduct of certain public officials and others." Some of these charges he enumerates. The Court of Quarter Sessions of Dauphin County characterizes the acts publicly charged as, "if true, malfeasance in office, bribery and conspiracy to cheat and defraud the Commonwealth." What the three judges of Dauphin County think as to the substantiality of these charges is shown (1) by what they say in their official return to this court and (2) by the fact that they unanimously summoned the grand jury to investigate these charges.

My reply to the criticism in the majority opinion that the petition of the district attorney "does not allege the commission of any crime within the jurisdiction of the Dauphin County Court" is that this criticism is completely answered by that part of the return of the court of Quarter Sessions of Dauphin County which reads as follows: "This court . . . will limit the investigation to matters specifically within the jurisdiction of this court. The details of the charges as given to us clearly show a number of instances of violations of law within Dauphin County."

I also disagree with the majority opinion that the omission to charge the time when the alleged offense occurred is "very important." The investigation would disclose when the crimes, if any, were committed. If they were barred by the Statute of Limitations, the Court of Quarter Sessions would, of course, instruct the grand jury when their presentment was made that indictments should not be returned for offenses barred by the Statute of Limitations. I think if the crimes charged were committed, the grand jury of Dauphin County should acquaint thepeople of this State with the facts, whether convictions for the crimes were barred by the Statute of Limitations or not.

I also entirely disagree with the following statement contained in the majority opinion: "The wholesale investigation of the vague and indefinite charges contained in the District Attorney's petition, in the form in which it is presented would seriously obstruct the operation of the executive branch of the government." I do not, and the Judges of Dauphin County do not, regard the charges as "vague and indefinite," and the assertion, or at least implication, that an investigation of the serious charges presented by this record "would seriously obstruct the operation of the executive branch of the government is in itself a most damning indictment of the branch of government referred to. Before any government can inany of its branches be seriously obstructed by an investigation of wrong-doing in respect to that branch, the wrong-doing must have permeated that branch so thoroughly that to excise it or even to investigate it, would constitute a critical, if not fatal, major operation. If that is the situation in any branch of our State government, it is time that the citizens of this Commonwealth should become apprised of the fact.

I do not agree with the majority opinion that "the wholesale removal [to the grand jury room] of books, plans, specifications, and other documents absolutely essential to its [i. e., the grand jury's] functioning" would have the "serious practical results" the majority opinion envisages. This investigation would be conducted under the supervision of the three admittedly competent judges of the Court of Quarter Sessions of Dauphin County, and they can be depended upon to see to it that the investigation will be conducted in such a manner as not to interfere with the normal functions of government. This State government survived without difficulty criminal proceedings in the Courts of Dauphin County a third of a century ago in which many official "books, plans and specifications and other documents" of the State government were produced in court in answer to the subpœna of the criminal court of Dauphin County.

The case of McNair's Petition, 324 Pa. 48, 187 A. 498, cited by the majority opinion as the only precedent for the issuance of a writ of prohibition, is easily distinguishable from the case at bar. As a writer in the Michigan Law Review, Vol. 35, p. 1020, aptly said: The McNair Case in Pennsylvania "may easily be explained as an attempt to order investigation ofnon-criminal matters." In that case, i. e., McNair's Petition, this court two years ago stopped a grand jury investigation ordered by a single one of the fifteen judges comprising the courts of Quarter Sessions of Allegheny County. The writ of prohibition was not issued until after the judge had charged the jury, and the non-criminal nature of the subject matter ofthe inquiry was thereby made manifest. In that case the district attorney admitted in this court, as recorded on page 63 of this court's opinion in that case, that "he expected to uncover no evidence of corruption." We held that "it was not the function of Judge SMITH . . . to supervise or criticize" the disposition by magistrates of certain minor cases. "The use of the grand jury as an inquisitorial body is to be limited," this court said, "to the investigation of criminal conduct and is not to be extended to the review of judicial discretion." This court also declared: "As it was admitted there was no bad faith and the mistake was an error of judgment, neither the district attorney nor the grand jury under such conditions could impose criminal liability." The charges in the instant case which the Dauphin County Court judges ordered investigated cannot be designated as mere "errors of judgment." We have before us the petition of the District Attorney charging acts which, if true (as already noted) "amount [as the court below said] to malfeasance in office, bribery and conspiracy to cheat and defraud the Commonwealth."

I am convinced that the majority opinion is basically erroneous in laying down the requirement, as in practical effect it does, that a grand jury investigation cannot be ordered by a Court of Quarter Sessions unless "the time, place and specific instances of the offense" are all set forth in a district attorney's petition with substantially the same precision as an indictment. No such requirement has ever hitherto been laid down by any court in this Commonwealth. This basic error in the majority opinion becomes manifest when excerpts from that opinion are compared with the language of jurists whose opinions have been respected and followed for over a century. For example, the majority opinion says: "Its [the court's] sole concern is with the legal sufficiency of the petition to warrant a grand jury investigation of the executive branch of the government. . . . To ground the inquiry there must not be the mere charge of crime by an individual, but there must be, in the opinion of the District Attorney and the court, sufficient evidence on hand of actual crime upon which to find at least one conviction." Not a single case is cited for the novel proposition thus put forward in the majority opinion and I assert with confidence that no precedent for it can be found in the annals of any American or British court of justice. On the contrary, our courts have time and time again enunciated a doctrine exactly to the contrary.

Our highest courts have frequently said that the lower courts may of their own motion, i. e., without any petition fromanybody, order investigations of criminal matters of general public import and that there are no limits to the inquiries of the grand jurors except their own diligence and the instructions of the particular court whose instrumentality they are. For example, one of the State's greatest judges, President Judge RICE of the Superior Court said in Com. v. Klein, 40 Pa. Super. 352, quoting from an earlier decision of a Pennsylvania court: "Criminal courts of their own motion call the attention of grand juries to and direct the investigation of matters of general public import, which, from their nature and operation in the entire community, justify such intervention." This principle was reiterated as recently as 1935 in Com. v. Hackney, 117 Pa. Super. 519. In Frisbiev. U.S., 157 U.S. 160, the Supreme Court of the United States said: "In this country . . . [it] is for the grand jury to investigate any alleged crime, no matter how or by whom suggested to them, and after determining that the evidence is sufficient to justify putting the party suspected on trial, to direct the preparation of the formal charge or indictment." InCom. v. Green, 126 Pa. 531, 17 A. 878, the right of a grand jury "to act on matters given to them in charge by the court" is discussed and no limitation is placed on the court's action in entrusting grand juries with matters to investigate. James Wilson, a signer of both the Declaration of Independence and the Constitution of the United States and who was appointed to the United States Supreme Court by George Washington, said: "Grand juries are not appointed for the prosecutor or for the court; they are appointed for the government and for the people. The oath of a grand juryman — and his oath is the commission under which he acts — assigns no limits, except those marked by diligence itself, to the course of his inquiries. And shall the means and opportunities of inquiry be prohibited or restrained?" His question implies that the correct answer was an emphatic "No." This language of Justice WILSON was quoted with approval by the Supreme Court of the United States inHale v. Henkel, 201 U.S. 43.

In the frequently cited case of Lloyd and Carpenter, 3 Clark 188, President Judge KING of the courts of Philadelphia said in 1845: "Criminal courts of their own motion may call the attention of grand juries to and direct the investigation of matters of general public import, which, from their nature and operation in the entire community, justify such intervention." This opinion of Judge KING'S was cited with approval by this court in Com. v. Hurd, 177 Pa. 481, 35 A. 682, where this court upheld the action of the lower court in ruling that a grand jury investigation was the proper procedure "where the public, as a public, in contra-distinction from individuals who can do their own prosecuting are concerned." This court there held that a charge that certain county commissioners were unlawfully concerned in public contracts was a matter "of general public interest" which called for a grand jury investigation.

The court of any county is clothed with great power and charged with an important public trust. It must always be assumed, until proof to the contrary is shown, that a court in ordering an investigation of criminal charges is motivated only by a sense of public duty, and will see to it that the investigation is conducted fairly, impartially and without oppression. This court in Rowand v. Com., 82 Pa. 405, in upholding the right of a district attorney to submit an indictment before a grand jury, without a previous commitment of an accused, said that "intelligence, integrity and independence always must be presumed to accompany high public trust."

The Supreme Court of Pennsylvania said sixty-two years ago in the case of Rowand v. Com., supra: "The action of the officer [meaning the district attorney] and the court could be brought here for purposes of review only when their abuse of discretion should be found to have been both manifest and flagrant." That has always been the settled law of this Commonwealth. In the instant case there has not been the slightest abuse of discretion either by the district attorney or the court, much less an abuse that is "manifest and flagrant." The Dauphin County Court had the right to direct this investigation either on its own initiative, or in response to a petition or a mere suggestion by the district attorney or by a suggestion or request from any other citizen. In view of the facts presented to the district attorney and the court, it was, in my judgment, not only their right but their imperative duty to order this investigation.

For the unprecedented act of asking that this investigation be stopped, there should logically be some extraordinary reason. What were the reasons invoked by the ingenuity of able counsel? An examination of them shows that none of these reasons have the slightest merit.

The one most strongly urged was (quoting from counsel's oral argument and brief): "It is beyond the power of the judiciaryto investigate the conduct of the executive branch of thegovernment." In addition to what I have already said as to this proposition, I now point out that it possesses at least the novelty of being for the first time advanced in an American court of justice. Every department of government in this country is administered by individuals about whom no "divinity hedges," as divinity was once supposed to "hedge a king." When any of these individuals who administer any part of our government are charged with personal wrong-doing they are as much amenable to the criminal courts as are the humblest citizens of the land. In Chisholm v. Georgia, 2 Dallas 419, JOHN JAY, the first Chief Justice of the United States, said: "In Europe, the sovereignty is generally ascribed to the prince; here it rests with the people. . . . Our governors are [merely] the agents of the people." In the same case Justice JAMES WILSON quoted the following from Frederic the Great: From courts "all men ought to obtain justice, since, in the estimation of justice, all men are equal, whether the prince complain of a peasant, or a peasant complain of the prince." As illustrative of the application of these sound principles, I cite the fact that within the last decade and a half three governors of American states have been called before the bar of criminal courts during their terms of office to defend themselves against charges of which they were accused.

Counsel for the petitioners cites Hartranft's Appeal, 85 Pa. 433. That case has no relevancy whatever to the issue here. In that case the Supreme Court refused to permit the Court of Quarter Sessions of Allegheny County to issue an attachment for contempt against the Governor and his Adjutant-General because they refused to appear before the grand jury of that county to testify in respect to riots which had taken place in Pittsburgh in July, 1877, and in the suppression of which by the National Guard under the command of the Governor, a number of soldiers and other persons were killed and wounded. The Governor and his Adjutant-General refused to appear to testify on the ground that they had no knowledge of the riots except what they had learned in their official capacities and they declared that "an examination into their acts in connection with said riots would be detrimental to the public service," that they were then "in constant correspondence with the army in the field in the riotous regions of the state, and in daily expectation of being required at the front, and to be called to a distant county would endanger the interests of the public service." This court held, and this is all it held in that case, (1) that the propriety of the governor's withholding the information (which obviously was official information) required by the grand jury was for the governor himself to determine, and (2) whether his duties at the seat of government at Harrisburg were such that at the time he was subpœnaed to appear in a distant part of the state, he could not without endangering the interest of the public service so appear and testify, was a matter for himself alone to determine. This court said: "Is obedience to a subpœna one of his [the governor's] duties, and if so, shall he discharge that duty in preference to that which rests upon him as commander-in-chief?" It decided that the governor himself must choose which of two mutually (at the time) interfering duties he should discharge. There is not in the opinion in that case even the slightest intimation that the executive department of the government could not be subjected to a grand jury investigation. On the contrary, this court said in its opinion in that case: "Neither is there any doubt about the power of the court to direct that body to make inquiry concerning affairs which directly affect the public peace and society." If in the Hartranft Case, the governor had tried, as here, to prohibit a grand jury investigation of alleged crimes committed by public officials and by others, because he, the governor, preferred to have the alleged crimes investigated by his subordinate, the Attorney General, we would have a state of facts exactly like the state of facts here, butno such thing occurred in the Hartranft Case, as any lawyer or layman can quickly determine by simply reading the report of that case. I again repeat: the stopping of this grand jury investigation is without precedent in the history of Pennsylvania. No other governor and no other person ever asked for any such thing and no other court ever granted any such thing. Many judges of state and nation have been investigated by a coördinate branch of the government, to wit, the legislature, and these investigations have sometimes resulted in the impeachment and removal of judges. No court ever granted a writ of prohibition to attempt to stop such an investigation.

Another proposition stoutly advanced by the petitioners is that since section 904 of the Administrative Code of 1929, P. L. 177, 238, gives the Department of Justice the power, and with the approval of the governor makes it its duty "to investigate any violations or alleged violations, of the laws of the Commonwealth which may come to its notice," counsel argues that the Attorney General's powers under the Code "are no less extensive in any county than those of a grand jury and they are not limited territorially as are the powers of a county grand jury." Because of the just cited provision of the Administrative Code, counsel for petitioners argues, quoting from Clause "C" of paragraph "28" of the Governor's petition for a writ of prohibition: "Under Section 13 of the Act of March 21, 1806, the powers conferred upon the Attorney General by the Administrative Code of 1929, have superseded the common law right of the grand jury to investigate violations of law in the conduct of the executive and administrative work of the state government." Section 13 of the Act of March 21, 1806, thus invoked, provides as follows: "That in all cases where a remedy is provided or duty enjoined, or any thing directed to be done by any act or acts of Assembly of this commonwealth, the directions of the said acts, shall be strictly pursued, and no penalty shall be inflicted or any thing done agreeably to the provisions of the common law, in such cases, further than shall be necessary for carrying such act or acts into effect."

The bold proposition thus advanced by the governor is that since the Attorney General can under the Act of 1929 (the Administrative Code) investigate law violations or alleged violations, a grand jury nowhere in the state can investigate any crime or alleged crime which the Attorney General sees fit to investigate. The absurdity of this proposition is so palpably obvious that no argumentative refutation is called for. No one ever attempted before to give any such interpretation to the above cited Act of 1806. That act simply means that where a statutory enactment completely covers a field formerly occupied by the common law, the common law procedure is ousted from that field. Section 904 of the Administrative Code of 1929 does not even purport to cover the investigating field occupied for ages by grand juries. The Attorney General by the Act of 1929 is given a power to investigate alleged crimes, very much as policemen and detectives are given power to investigate alleged crimes. In furtherance of his investigation, he can also issue subpœnas, requiring the attendance of witnesses and the production of books and papers for examination. A fire marshal and each of his assistants in their investigation of fires have exactly the same power under section 8 of the Act of June 8, 1911, P. L. 705 (53 PS 3598), to compel the attendance of witnesses and the production of books and papers for examination, but no fire marshal or his assistant has as yet claimed that the investigating power conferred upon him ipso facto takes away all power of grand juries to investigate fires of suspicious origin. The fire marshal and his assistants cannot find presentments or return indictments. Neither can the Attorney General. Grand juries can. The field occupied by grand juries is no more invaded by the Administrative Code than it is by the fire marshal statute cited.

The quoted section of the Administrative Code was never intended to take from grand juries investigating powers. If the legislature attempted to take away such power from grand juries, it would find the Constitution standing immovably in its pathway. Section 1 of Article V of the Constitution vests the judicial power of the Commonwealth in the courts therein enumerated, among these courts enumerated are "courts of quarter sessions." An indispensable instrumentality of a court of quarter sessions is a grand jury, and our state legislature is powerless to take away or interfere with immemorial functions of a grand jury. No less an authority than Chief Justice JOHN MARSHALL said, in United States v. Hill, 1 Brock 156, Fed. Case No. 15364, that grand juries do not derive their powers from statutes but by implication from the constitution itself, that when courts are invested with criminal jurisdiction, grand juries are "indispensable instrumentalities" of that jurisdiction, and that "grand juries are accessories to the criminal jurisdiction of a court, and they have power to act, and are bound to act, so far as they can aid that jurisdiction. Thus far, the power is implied, and is as legitimate as if expressly given." James Wilson, already referred to in this opinion, said of grand juries (Wilson's Works, Vol. 2, p. 214): "All the operations of government, and of its ministers and officers, are within the compass of their view and research." I will not be a party to obstructing their view or prohibiting their research.

Having failed to advance any specific legal reason why this investigation should not proceed, the petitioners resort to the blanket allegation that the charges are too vague and general and ask: "Assuming all of these statements to be true, what crime was committed?" By "these statements" they refer to the former Attorney General's charges that $20,000 was paid certain political leaders for the enactment of certain legislation. If a price is being paid for the enactment of legislation at the State Capitol, citizens of the Commonwealth ought to know it and the obviously appropriate way to find out is through a grand jury investigation in the county where the seat of government is located, under the supervision of the Court of Quarter Sessions of that county, consisting of three judges known throughout the Commonwealth for their integrity, ability and impartiality.

Another charge made in this case was that "unlawful irregularities existed in the purchase of materials, equipment and supplies by the Commonwealth," that excessive prices were paid for these supplies, and that "certain sums of money" were paid to certain political leaders and others by the vendors of those materials "with intent to cheat and defraud the Commonwealth of Pennsylvania." The petitioners do not want that charge investigated because (so they say) it "does not specify the time or the place when any of the alleged 'irregularities' occurred." If they did occur, it is obvious that a criminal conspiracy existed and it is a legitimate inference that some part of this conspiracy was carried out in the State Capitol where the Secretary of the Department of Supplies has his only office. If it occurred anywhere else, the grand jury can find out where it did occur and the matter can then be referred to the criminal court of the proper county. The judges of the courts of Dauphin County aver in their return: "The details of the charges as given to us clearly show a number of instances of violation of law within Dauphin County." The petitioners also say that "the charge, as made, is absurd on its face." This is not a very convincing statement. If the charge made is false, those charged ought to be eager to have its falsity proclaimed by a grand jury. As to the other charges, it is sufficient to say that the three judges and the District Attorney of Dauphin County all declared that they "amount to malfeasance in office, bribery and conspiracy to cheat and defraud the Commonwealth."

The grand jury investigation asked for (and now halted) is cavalierly referred to as a "fishing expedition." To "tag" any proposed grand jury investigation as a "fishing expedition" is not sufficient to destroy it or to impair its usefulness. All investigations are "fishing expeditions," and often the yield of "fish," big and small, is large enough to show that the expedition was fully justified. Neither in the piscatorial precepts of Izaak Walton nor in the fishing rules of this Commonwealth is there to be found any requirement that before citizens may lawfully fish in any waters they must furnish advance proof of the existence of fish in those particular waters and identify at least some of them. Any such foolish requirement would fatally cripple a time-honored and entirely legitimate industry. In a case decided five years ago In ReGrand Jury Proceedings, 4 F. Supp. 283, by the Federal District Court, sitting in Philadelphia, Judge KIRKPATRICK declared, after citing a decision of the United States Supreme Court (Hale v. Henkel,201 U.S. 43), that it was "settled beyond all question that in the federal courts an investigation by the grand jury need not be preceded by any definition whatever of the crimes to be investigated or the persons against whom an accusation is sought." In other words, no man has a right to demand a bill of particulars before he is investigated.

To hold, as does the majority opinion in practical effect, that a court cannot order a grand jury investigation unless the district attorney and judges specify in advance all the offenses and all the offenders they expect to uncover and all the convicting proof they possess, is exactly tantamount to a decision that grand jury investigations should be ordered only when they have no purpose to serve. What the majority now prescribe as conditions precedent to a grand jury investigation have been for ages the fruits of grand jury investigations. InHendricks v. United States, 223 U.S. 178, 184, the Supreme Court of the United States said that the identity of the offender, and the precise nature of the offense, if there be one, normally are developed at the conclusion of the grand jury's labors, not at the beginning. The dictum which appears in a footnote on page 61 of the opinion in McNair's Petition (supra), that "in all cases where investigations have been ordered or refused, written formal charges have been made with a definite crime in evidence" and that "all concerned the criminal conduct of public officers," is simply not the fact. The writer of this opinion knows from his experience both as district attorney and as judge in a populous county and from his knowledge of the practice in other counties that grand jury investigations are usually ordered by the courts without any written formal charges being first made, and the alleged criminal misconduct both of public officers and private citizens is equally subject to investigation. The object of such investigations is generally the uncovering of crimes which primarily injure the public at large. Such is manifestly the object of the investigation the judges of Dauphin County ordered in the instant case. Whether the information which moved the judges of the court below to act came from "trustworthy sources," those judges were in better position than we are to determine. The very fact that the judges considered the information sufficiently trustworthy to justify a grand jury investigation, should be conclusive, as hitherto it always has been, on the question of the propriety of their act. This court said two years ago in McNair's Petition (supra): "Criminal acts which seriously affect or injure the public generally . . . require immediate attention so that these evils may be suppressed."

To halt the proposed investigation before the Court of Quarter Sessions of Dauphin County has charged the grand jury and thus acquainted the citizens of this Commonwealth further with the nature and seriousness of the disclosures which moved that court to action is, in my judgment, a grave mistake. To attempt to prevent an investigation of such charges as have been made in this case is as futile as an attempt to put a lid on a volcano. Innocent men have no reason to fear a grand jury investigation and when wrongfully accused they should demand it, as army officers, when wrongfully accused, demand a court of inquiry. The lid should be lifted and the light turned on. A great Pennsylvania judge in a memorable charge (AddisonAppeal, page 47), said: "Grand juries are watchmen, stationed by the laws, to survey the conduct of their fellow citizens, and inquire where and by whom public authority has been violated, or our constitution or laws infringed." I would let the Dauphin County "watchmen" go to work at once.

The doctrine that "the king can do no wrong" has no counterpart in this country. Public officials are public servants, and "public office is a public trust," not a "private preserve." This investigation which the judges and district attorney of Dauphin County propose and which the governor opposes, should go on. If the Dauphin County grand jury is to be practically shorn by this court of its power to investigate fully the criminal charges appearing on this record, a new chapter is being written in the 216 years' history of this court and in the two and a half centuries' history of Pennsylvania. In that chapter I want this dissent recorded.

AMENDED PETITION.