159 A.2d 160

LOUIS C. WYMAN, Attorney General v. WILLARD UPHAUS.

No. 4829.Supreme Court of New Hampshire Merrimack.Argued March 1, 1960.
Decided March 31, 1960.

1. The jurisdiction of the Superior Court (RSA 491:19, 20) to issue an order of committal for refusal to comply with subpoenas duces tecum served in the course of a legislative investigation of subversive activities by the Attorney General was not impaired by the fact that temporary legislation (Laws 1955, c. 197) under which the Attorney General proceeded expired by its terms prior to committal, where neither that statute nor the permanent legislation (Laws 1957, c. 178) enacted prior to the expiration of the former and authorizing a continued investigation of such activities contained any provision indicating that expiration should terminate pending proceedings.

PETITION, by the Attorney General under RSA 491:19, 20 for an order to compel compliance by the defendant with two subpoenas duces tecum served upon him in the course of a legislative investigation of subversive activities conducted by the Attorney General pursuant to resolutions appearing in Laws 1953, c. 307 and Laws 1955, c. 197.

The petition was originally heard on January 5, 1956, when the defendant was ordered to produce guest registrations at the New Hampshire World Fellowship Center at Albany, New Hampshire, for the 1954 and 1955 seasons. This was part of the information sought by the above-mentioned subpoenas. Upon his refusal to comply with this order he was found and adjudged in contempt and ordered committed until he should purge himself of his contempt. Pending transfer of his exceptions defendant was admitted to bail.

The defendant’s exception to the above order was overruled by this court (Wyman v. Uphaus, 100 N.H. 436, 445) and the order of committal was held valid by the United States Supreme Court. Uphaus v. Wyman, 360 U.S. 72. Thereafter a further hearing on this matter was held on December 14, 1959 before Grant, J., who presided at the previous hearing. Defendant objected to the

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jurisdiction of the Court on statutory and constitutional grounds and made a motion to dismiss which was denied. At the conclusion of the hearing the Court made the following order: “The rulings and findings of January 5th, 1956 are affirmed, thus ruling that Willard Uphaus is found and adjudged in contempt of this Court. Williard Uphaus is ordered committed to the Merrimack County Jail and there to remain for one year from this date or until he purges himself of contempt, or until further order of Court.”

The defendant’s exception to the order of the Court was reserved and transferred.

Louis C. Wyman, Attorney General (by brief and orally), pro se.

Nighswander, Lord Bownes and Royal W. France (of N.Y.) (Mr. Bownes orally), for the defendant.

James C. Cleveland and Howard S. Whiteside (of Massachusetts) (Mr. Whiteside orally), for Hugo DeGregory, amicus curiae.

WHEELER, J.

The chief contention of the defendant is that the Superior Court was without jurisdiction to find him in contempt because the statute authorizing the investigation expired on June 30, 1957, by express provision of chapter 197, Laws 1955.

In determining the validity of this argument it is necessary to examine the legislative history in the field of subversive activities in order to ascertain the legislative intent with respect to investigations by the Attorney General.

In 1951 the Legislature enacted “An act relating to subversive activities,” taking cognizance of a “World Communist movement under the domination of a foreign power” which by its methods “including treachery [and] deceit, [infiltrates] into governmental and other institutions.” Laws 1951, c. 193 (now RSA ch. 588).

In 1953 the Legislature adopted a joint resolution authorizing and directing the Attorney General “to make full and complete investigation with respect to violations of the subversive activities act of 1951 and to determine whether subversive persons as defined in said act are presently located within this state.” Laws 1953, c. 307. This investigation was further extended on two occasions, the last enactment continuing it to June 30, 1957. Laws 1955, c. 197, and c. 340.

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In 1957 the Legislature amended the original act of 1951 by enacting chapter 178 “An act relative to investigation of subversive activities,” which among other changes inserted after RSA 588:8 the following new section: “588:8a ATTORNEY GENERAL. At any time when the attorney general has information which he deems reasonable or reliable relating to violations of the provisions of this chapter he shall make full and complete investigation thereof and shall report to the general court the results of this investigation, together with his recommendations, if any, for legislation. In any investigation hereunder the attorney general or any duly authorized member of his staff is authorized to require by subpoena or otherwise the attendance of such witnesses and the production of such correspondence, books, papers and documents and to administer such oaths, and to take such testimony and to make such expenditures within the funds provided as he deems advisable. The provisions of section 7 of this chapter shall be inapplicable to the investigation provided for herein and the attorney general is hereby authorized to make public such information received by him, testimony given before him, and matters handled by him as he deems fit to effectuate the purposes hereof.”

The Legislature was then aware that the temporary legislation (chapter 307, Laws 1953) as extended would expire within two weeks and was presumably aware that the defendant’s appeal was then pending. Neither the statute which expired nor the 1957 statute just quoted contains any provision which would indicate that expiration should terminate pending proceedings. Opinion of the Justices, 89 N.H. 563, 565. See also, RSA 21:37
and Lakeman v. Moore, 32 N.H. 410. The series of statutory enactments on the subject of subversive activities indicates the legislative purpose to continue the Attorney General’s authority to investigate subversive activities and not end it when his power expired under chapter 197, Laws 1955. No clearer indication of this is needed than the enactment of chapter 178, Laws 1957, effective June 14, 1957, establishing permanent authority in the Attorney General two weeks before the date of expiration of his temporary authority. The Legislature has thus shown a live and continuous interest in this subject matter. The jurisdiction of the Trial Court under RSA 491:19, 20 to enter the committal order in this case remains unimpaired. Opinion of the Justices, supra.

The constitutionality of the act under which the State proceeded against the defendant (Const. Pt. I, Art. 37th) has heretofore been

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decided and no reason is presented sufficient to warrant re-examination of the subject. See Nelson v. Wyman, 99 N.H. 33.

Exceptions overruled; judgment and committal order affirmed.

All concurred.