The Committee on the Legislative
Department of the Constitutional Con-
vention Commission expressed its con-
cern about the necessity or the desir-
ability of including a provision in the
article dealing with the legislative
branch which would prevent the abuse
of the investigative power of the
General Assembly.
THE FEDERAL ANALOGY
Congressional power to investigate is
inherent in the legislative function.
Concerning limits on this power:
"American courts . . . point only to the
self-limitations inherent in the legisla-
tive process . . . the limits of inquiry are
then the limits of legislative power," i.e.,
due process and equal protection.2
RECOGNITION OF THE STATE POWER
"Under American Constitutions,
the legislature possesses not only such
powers as are expressly granted to it
but also such auxiliary powers as are
necessary and proper to make the
express powers effective. The ques-
tion then comes down to one of
whether the power to investigate is so
far incidental to the informed and
effective exercise of the legislative
function as to be implied."3
1 This article was prepared for the Commis-
sion by J. Michael McWilliams, research as-
sistant to the Constitutional Convention Com-
mission; B.S., 1964, Georgetown University;
LL.B., 1967, University of Maryland; member
of the Maryland Bar.
2 Landis, Constitutional Limitations on the
Congressional Power of Investigation, 40
harv. L. rev. 153 (1926) ; J. chamberlain,
legislative processes, national and
state (1936) ; H. walker, the legislative
process (1948): Cousens, The Purposes
and Scope of Investigations Under Legisla-
tive Authority, 26 geo. L. J. 905-29 (1938).
3 Schwartz, Legislative Powers of Investiga-
tion, 57 dick. L. rev. 31 (1952).
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This question was answered in
McGrain v. Daugherty, a leading case
recognizing for the first time the exist-
ence of legislative investigatory author-
ity. The Supreme Court stated:
"We are of opinion, that the power
of inquiry — with process to enforce
it — is an essential and appropriate
auxiliary to the legislative function
.... A legislative body cannot legislate
wisely or effectively in the absence of
information respecting the conditions
which the legislation is intended to
affect or change; and where the legis-
lative body does not itself possess the
requisite information — which not in-
frequently is true — recourse must be
had to others who do possess it. ...
Thus there is ample warrant for
thinking, as we do, that the constitu-
tional provisions which commit the
legislative function to the two houses
are intended to include this attribute
to the end that the function may be
effectively exercised."4
LIMITATION ON THE STATE POWER
State legislative investigatory power
is also inherent in the legislative func-
tion and subject, at least, to the federal
constitutional limitations of due process
and equal protection which "operate to
require that state legislatures, in regu-
lating persons and property under the
police power, do so in a reasonable and
nondiscriminatory manner."5
ANALYSIS OF EXISTING STATE
PROVISIONS
Eleven of the fifty state constitutions
make some provision for legislative in-
4 McGrain v. Daugherty, 273 U.S. 135
(1926).
5 Snider, American State and Local Gov-
ernment, in state legislatures: powers
and procedures 217 (1950).
125
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