With this review of the legislative practice, congressional enactments and court decisions, we proceed to a statement of our conclusions on the question.

We are of opinion that the power of inquiry-with process to enforce it-is an essential and appropriate

-power to compel attendance of witnesses.

auxiliary to the legislative function. It was SO regarded and employed in American legislatures before the Constitution was framed and ratified. Both Houses of Congress took this view of it early in their history -the House of Representatives with the approving votes of Mr. Madison and other members whose service in the convention which framed the Constitution gives special significance to their action-and both houses have employed the power accordingly up to the present time. The Acts of 1798 and 1857, judged by their comprehensive terms, were intended to recognize the existence of this power in both houses and to enable them to employ it "more effectually" than before. So, when their practice in the matter is appraised according to the circumstances in which it was begun and to those in which it has been continued, it falls nothing short of a practical construction, long continued, of the constitutional provisions respecting their powers, and therefore should be taken as fixing the meaning of those provisions, if otherwise doubtful.19

Constitutional law-practical construction -effect.

We are further of opinion that the provisions are not of doubtful

19 Stuart v. Laird, 1 Cranch, 299, 309, 2 L. ed. 115, 118; Martin v. Hunter, 1 Wheat. 304, 351, 4 L. ed. 97, 109; Ames v. Kansas, 111 U. S. 449, 469, 28 L. ed. 482, 490, 4 Sup. Ct. Rep. 437; Knowlton 50 A.L.R.-2.

meaning, but, as was held by this court in the cases we have reviewed, are intended to be effectively exercised, and therefore to carry with them such auxiliary powers as are necessary and appropriate to that end. While the power to exact information in aid of the legislative function was not involved in those cases, the rule of interpretation applied there is applicable here. 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 legislative body does not itself possess the requisite information-which not infrequently is true -recourse must be had to others who do possess it. Experience has taught that mere requests for such information often are unavailing, and also that information which is volunteered is not always accurate or complete; so some means of compulsion are essential to obtain what is needed. All this was true before and when the Constitution was framed and adopted. In that period the power of inquiry-with enforcing process-was regarded and employed as a necessary and appropriate attribute of the power to legislate-indeed, was treated as inhering in it. Thus there is ample warrant for thinking, as we do, that the constitutional 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.

The contention is earnestly made on behalf of the witness that this power of inquiry, if sustained, may be abusively and oppressively exerted. If this be so, Congress-denial it affords no ground of power befor denying the power. The same contention might be directed against the power to legislate, and of course would be un

cause of abuse.

v. Moore, 178 U. S. 41, 56, 92, 44 L. ed. 969, 975, 990, 20 Sup. Ct. Rep. 749; Fairbank v. United States, 181 U. S. 283, 306, et seq., 45 L. ed. 862, 872, 21 Sup. Ct. Rep. 648, 15 Am. Crim. Rep. 135.

availing. We must assume, for present purposes, that neither house will be disposed to exert the power beyond its proper bounds, or without due regard to the rights of witnesses. But if, contrary to this assumption, controlling limitations or restrictions are disregarded, the decisions in Kilbourn v. Thompson and Marshall v. Gordon point to admissible measures of relief. And it is a necessary deduction from the decisions in Kilbourn v. Thompson and Re Chapman that a witness rightfully may refuse to answer where the bounds of the power are exceeded or the questions are not pertinent to the matter under inquiry.

We come now to the question whether it sufficiently appears that the purpose for which the witness's testimony was sought was to obtain information in aid of the legislative function. The court below answered the question in the negative, and put its decision largely on this ground, as is shown by the following excerpts from its opinion (299 Fed. 638-640):

"It will be noted that in the second resolution the Senate has expressly avowed that the investigation is in aid of other action than legislation. Its purpose is to 'obtain information necessary as a basis for such legislative and other action as the Senate may deem necessary and proper.' This indicates that the Senate is contemplating the taking of action other than legislative, as the outcome of the investigation, at least the possibility of so doing. The extreme personal cast of the original resolutions; the spirit of hostility towards the then Attorney General which they breathe; that it was not avowed that legislative action was had in view until after the action of the Senate had been challenged; and that the avowal then was coupled with an avowal that other action was had in view -are calculated to create the impression that the idea of legislative action being in contemplation was an afterthought.

"That the Senate has in contemplation the possibility of taking action other than legislation as an outcome of the investigation, as thus expressly avowed, would seem of itself to invalidate the entire proceeding. But, whether so or not, the Senate's action is invalid and absolutely void, in that, in ordering and conducting the investigation, it is exercising the judicial function, and power to exercise that function, in such a case as we have here, has not been conferred upon it expressly or by fair implication. What it is proposing to do is to determine the guilt of the Attorney General of the shortcomings and wrongdoings set forth in the resolutions. It is 'to hear, adjudge, and condemn.' In so doing it is exercising the judicial function.

"What the Senate is engaged in doing is not investigating the Attorney General's office; it is investigating the former Attorney General. What it has done is to put him on trial before it. In so doing it is exercising the judicial function. This it has no power to do."

rightly interpreted, that the object of the investigation and of the effort. to secure the witness's testimony was to obtain information for legislative purposes.

It is quite true that the resolution directing the investigation does not in terms avow that it is intended to be in aid of legislation; but it does show that the subject to be investigated was the administration of the Department of Justice-whether its functions were being properly discharged or were being neglected or misdirected, and particularly whether the Attorney General and his assistants were performing or neglecting their duties in respect of the institution and prosecution of proceedings to punish crimes and enforce appropriate remedies against

the wrongdoers-specific instances of alleged neglect being recited. Plainly the subject was one on which legislation could be had and would be materially aided by the information which the investigation was calculated to elicit. This becomes manifest when it is reflected that the functions of the Depart ment of Justice, the powers and duties of the Attorney General and the duties of his assistants, are all subject to regulation by congressional legislation, and that the department is maintained and its activities are carried on under such appropriations as in the judgment of Congress are needed from year to year.

The only legitimate object the Senate could have in ordering the investigation was to aid it in legislating; and we think the subjectmatter was such that the presumption should be indulged that this was the real object. An express avowal of the object would have been better; but in view of the particular subject-matter was not indispensable. In the Chapman Case, where the resolution contained no avowal, this court pointed out that it plainly related to a subject-matter of which the Senate had jurisdiction, and said, "We cannot assume on this record that the action of the Senate was without a legitimate object;" and also that "it was certainly not necessary that the resolutions should declare in advance what the Senate meditated doing when the investigation was conclud

20 Senator George said: "It is not a trial now that is proposed, and there has been no trial proposed save the civil and criminal actions to be instituted and prosecuted by counsel employed under the resolution giving to the President the power to employ counsel. We are not to try the Attorney General. He is not to go upon trial. Shall we say the legislative branch of the Government shall stickle and halt and hesitate because a man's public reputation, his public character, may suffer because of that legislative action? Has not the Senate power to appoint a committee to investigate any department of the government, any department supported by the Senate in part by appropriations made by the Congress? If the Senate has the right to investigate

ed." 166 U. S. 669, 670. In People ex rel. McDonald v. Keeler, 99 N. Y. 463, 52 Am. Rep. 49, 2 N. E. 615, where the court of appeals of New York sustained an investigation ordered by the House of Representatives of that state where the resolution contained no avowal, but disclosed that it definitely related to the administration of a public office the duties of which were subject to legislative regulation, the court said (pp. 485, 487): "Where public institutions under the control of the state are ordered to be investigated it is generally with the view of some legislative action respecting them, and the same may be said in respect of public officers." And again: "We are bound to presume that the action of the legislative body was with a legitimate object if it is capable of being so construed, and we have no right to assume that the contrary was intended."

While we rest our conclusion respecting the object of the investigation on the grounds just stated, it is well to observe that this view of what was intended is not new, but was shown in the debate on the resolution.20

Of course, our concern is with the substance of the resolution and not with any nice questions of propriety respecting its direct reference to the then Attorney General by name. The resolution, like the charges which prompted its adoption, related to the activities of the department while he was its supervising officer; and the reference to him by

the department, is the Senate to hesitate, is the Senate to refuse to do its duty merely because the public character or the public reputation of some one who is investigated may be thereby smirched, to use the term that has been used so often in the debate? It is sufficient for me to know that there are grounds upon which I may justly base my vote for the resolution; and I am willing to leave it to the agent created by the Senate to proceed with the investigation fearlessly upon principle, not for the purpose of trying but for the purpose of ascertaining facts which the Senate is entitled to have within its possession in order that it may properly function as a legislative body." Cong. Rec. 68th Cong. 1st Sess. pp. 3397, 3398.

name served to designate the period to which the investigation was directed.

We think the resolution and proceedings give no warrant for thinking the Senate was attempting or intending to try the Attorney General at its bar or before its committee for any crime or wrongdoing. Nor do we think it a valid objection to the investigation that it might possibly disclose crime or wrongdoing on his part.

The second resolution-the one directing that the witness be attached-declares that his testimony is sought with the purpose of obtaining "information necessary as a basis for such legislative and other action as the Senate may deem necessary and proper." This avowal of contemplated legislation is in accord with what we think is the right interpretation of the earlier resolution directing the investigation. The suggested possibility of "other action" if deemed "necessary or proper" is of course open to criticism in that there is no other action in the matter which would be within the power of the Senate. But we do not assent to the view that this indefinite and untenable suggestion invalidates the entire proceeding. The right view in our opinion is that it takes nothing from the lawful object avowed in the same resolution and rightly inferable from the earlier one. It is not as if an inadmissible or unlawful object were affirmatively and definitely avowed.

We conclude that the investigation was ordered for a legitimate object; that the witness wrongfully refused to appear and testify before the committee and was lawfully attached; that the Senate is entitled to have him give testimony pertinent to the inquiry, either at its bar or before the committee; and that the district court erred in discharg

21 Cong. Rec. 68th Cong. 1st Sess. p. 4126.

ing him from custody under the attachment.

Another question has arisen which should be noticed. It is whether the case has become moot. The investigation was ordered and the committee appointed during the Sixty-eighth Congress. That Congress expired March 4, 1925. The resolution ordering the investigation in terms limited the committee's authority to the period of the Sixtyeighth Congress; but this apparently was changed by a later and amendatory resolution authorizing the committee to sit at such times and places as it might deem advisable or necessary.21 It is said in Jefferson's Manual:22 "Neither House can continue any portion of itself in any parliamentary function beyond the end of the session without the consent of the other two branches. When done, it is by a bill constituting them commissioners for the particular purpose.' But the context shows that the reference is to the two houses of Parliament when adjourned by prorogation or dissolution by the King. The rule may be the same with the House of Representatives whose members are all elected for the period of a single Congress; but it cannot well be the same with the Senate, which is a continuing body whose members are elected for a term of six years and so divided into classes that the seats of one third only become vacant at the end of each Congress, two thirds always continuing into the next Congress, save as vacancies may occur through death or resignation.

Mr. Hinds in his collection of precedents, says: "The Senate, as a continuing body, may continue its committees through the recess following the expiration of a Congress;"23 and, after quoting the above statement from Jefferson's Manual, he says: "The Senate, however, being a continuing body, gives authority to its committees 22 Senate Rules and Manual, 1925, p. 303. 23 Vol. 4, § 4544.

during the recess after the expiration of a Congress." So far as we are advised the select committee having this investigation in charge has neither made a final report nor been discharged; nor has it been continued by an affirmative order. Apparently its activities have been suspended pending the decision of this case. But, be this as it may, it is certain that the committee may be continued or revived now by motion to that effect, and, if continued or revived, will have all its original powers. This being so, and the Senate being a continuing body, the

25

Appeal-when question moot.

case cannot be said to have become moot in the ordinary sense. The situation is measurably like that in Southern P. Terminal Co. v. Interstate Commerce Commission, 219 U. S. 498, 514516, 55 L. ed. 310, 315, 316, 31 Sup. 24 Vol. 4, § 4545.

Ct. Rep. 279, where it was held that a suit to enjoin the enforcement of an order of the Interstate Commerce Commission did not become moot through the expiration of the order where it was capable of repetition by the Commission and was a matter of public interest. Our judgment may yet be carried into effect and the investigation proceeded with from the point at which it apparently was interrupted by reason of the habeas corpus proceedings. In these circumstances we think a judgment should be rendered as was done in the case cited.

What has been said requires that the final order in the District Court discharging the witness from custody be reversed.

Mr. Justice Stone did not participate in the consideration or decision of the case.

25 4 Hinds, Precedents, §§ 4396, 4400, 4404, 4405.

In the comparatively few cases wherein the question has been raised, it has been consistently held that either branch of the legislative body, or one of its committees, has the power to summon persons who are not members to attend as witnesses any meeting which it has the power to hold, and, if the person so summoned wilfully fails to appear, he may be punished for contempt. Re Gunn (1893) 50 Kan. 155, 19 L.R.A. 519, 32 Pac. 470, 948; Burnham v. Morrissey (1859) 14 Gray (Mass.) 226, 74 Am. Dec. 676; State v. Brewster (1916) 89 N. J. L. 658, 99 Atl. 338, reversing (1916) 88 N. J. L. 551, 97 Atl. 60; Wickelhausen v. Willett (1860) 10 Abb. Pr. (N. Y.) 164, affirmed in (1861) 12 Abb. Pr. 319, which is affirmed in (1864) 1 Keyes, 521, 4 Abb. App. Dec. 596; People ex rel. Mc

Donald v. Keeler (1885) 99 N. Y. 463, 52 Am. Rep. 49, 2 N. E. 615; Re Falvey (1858) 7 Wis. 630; Ex parte Dansereau (1875) 19 Lower Can. Jur. 210. See also Ex parte Dalton (1886) 44 Ohio St. 142, 58 Am. Rep. 800, 5 N. E. 136; Re Barnes (1912) 204 N. Y. 108, 97 N. E. 508, affirming (1911) 147 App. Div. 396, 74 Misc. 170, 132 N. Y. Supp. 908. And see the reported case (MCGRAIN v. DAUGHERTY, ante, 1).

In Burnham v. Morrissey (1859) 14 Gray (Mass.) 226, 74 Am. Dec. 676, the court said: "The house of representatives has many duties to perform which necessarily require it to receive evidence, and examine witnesses. . . . It has often occasion to acquire a certain knowledge of facts, in order to the proper performance of legislative duties. We therefore think it clear that it has the constitutional