Senate then and there to give testimony. Injunction, § 269 against interference with bank effect of attachment of president for refusal to testify. 6. An order restraining members of a Senate committee from entering a banking room or interfering with the affairs of the bank, its officers, agents, servants, and the business of its depositors and customers, does not prevent the attachment of the president of the bank for refusal to appear before a committee of the Senate of the United States as a witness. Congress, § 2 — implied powers. 7. The two Houses of Congress in their separate relations possess not only such powers as are expressly granted to them by the Constitution, but such auxiliary powers as are necessary and appropriate to make the express powers effective. [See 26 R. C. L. 1420.] Congress, § 2 extent of power to inquire into private affairs. 8. Neither House of Congress is invested with general power to inquire into private affairs and compel disclosures, but only with such limited power of inquiry as is necessary to make its express powers effective. Constitutional law, § 30 practical construction effect. 9. A long-continued practical con APPEAL by defendant from a judgment of the District Court of the United States for the Southern District of Ohio discharging in a habeas corpus proceeding a witness attached for refusal to attend and give evidence before a Senate investigating committee. Reversed. See same case below, 299 Fed. 620. The facts are stated in the opinion Messrs. Harlan F. Stone, Attorney General, George W. Wickersham, and William T. Chantland, Special Assistants to the Attorney General, for appellant: Each House of Congress has power to conduct investigation in aid of its legislative functions, and to compel attendance before it of witnesses and the production of books and papers which may throw light upon the subject of inquiry; subject, of course, to protection against the invasion of such privileges as those against unreasonable searches and seizures, self-incrimination, and the like. Re Chapman, 166 U. S. 661, 671, 41 of the court. L. ed. 1154, 1159, 17 Sup. Ct. Rep. 677; Kilbourn v. Thompson, 103 U. S. 168, 189, 26 L. ed. 377, 386; Burnham v. Morrissey, 14 Gray, 241, 74 Am. Dec. 676; Harriman v. Interstate Commerce Commission, 211 U. S. 407, 418, 53 L. ed. 253, 262, 29 Sup. Ct. Rep. 115; Henry v. Henkel, 235 U. S. 219, 59 L. ed. 203, 35 Sup. Ct. Rep. 54; Interstate Commerce Commission v. Brimson, 154 U. S. 447, 485, 38 L. ed. 1047, 1060, 4 Inters. Com. Rep. 545, 14 Sup. Ct. Rep. 1125; Anderson v. Dunn, 6 Wheat. 204, 231, 5 L. ed. 242, 248; Ex parte Nugent, Brunner, Col. Cas. 296, Fed. Cas. No. 10,375; Re Pacific R. Commission (C. C.) 32 Fed. 241; People ex rel. Mc (273 U. S. 135, 71 L. ed. (Adv. 370), 47 Sup. Ct. Rep. 319.) Donald v. Keeler, 99 N. Y. 463, 52 Am. Rep. 49, 2 N. E. 615; Re Barnes, 204 N. Y. 115, 97 N. E. 508; State ex rel. Robertson Realty Co. v. Guilbert, 75 Ohio St. 43, 78 N. E. 931; State v. Brewster, 89 N. J. L. 658, 99 Atl. 338; Re Falvey, 7 Wis. 630; Ex parte Parker, 74 S. C. 466, 114 Am. St. Rep. 1011, 55 S. E. 122, 7 Ann. Cas. 874; Briggs v. Mackellar, 2 Abb. Pr. 54; Marshall v. Gordon, 243 U. S. 521, 543, 61 L. ed. 881, 887, L.R.A.1917F, 279, 37 Sup. Ct. Rep. 448, Ann. Cas. 1918B, 371. Re Chapman, 166 U. S. 661, 41 L. ed. 1154, 17 Sup. Ct. Rep. 677; Marshall v. Gordon, 243 U. S. 521, 61 L. ed. 881, L.R.A.1917F, 279, 37 Sup. Ct. Rep. 448, Ann. Cas. 1918B, 371. The investigation ordered by the Senate, in the course of which the testimony of appellee and the production of books and records of the bank of which he is president were required, was legislative in its character. Re Chapman, 166 U. S. 661, 669, 41 L. ed. 1154, 1158, 17 Sup. Ct. Rep. 677; Kilbourn v. Thompson, 103 U. S. 168, 26 L. ed. 377; People ex rel. McDonald v. Keeler, 99 N. Y. 485, 52 Am. Rep. 49, 2 N. E. 615; Re Falvey, 7 Wis. 637; People ex rel. Sabold v. Webb, 23 N. Y. S. R. 324, 5 N. Y. Supp. 855; People ex rel. Bender v. Milliken, 185 N. Y. 40, 77 N. E. 872; Re Barnes, 204 N. Y. 108, 97 N. E. 508. Appellee, by refusing to appear in response to either subpoena and be sworn to testify, can only succeed in this case by establishing that the entire proceeding was void as beyond the constitutional powers of the Senate. Re Barnes, supra; Re Chapman, 166 U. S. 661, 41 L. ed. 1154, 17 Sup. Ct. Rep. 677; Hale v. Henkel, 201 U. S. 43, 76, 50 L. ed. 652, 666, 26 Sup. Ct. Rep. 370; Silverthorne Lumber Co. v. 'United States, 251 U. S. 385, 64 L. ed. 319, 24 A.L.R. 1426, 40 Sup. Ct. Rep. 182; Wilson v. United States, 221 U. S. 361, 55 L. ed. 771, 31 Sup. Ct. Rep. 538, Ann. Cas. 1912D, 558; Essgee Co. V. United States, 262 U. S. 151, 67 L. ed. 917, 43 Sup. Ct. Rep. 514; Federal Trade Commission v. American TobacCo Co. 264 U. S. 298, 68 L. ed. 696, 32 A.L.R. 786, 44 Sup. Ct. Rep. 336. Messrs. John P. Phillips and Arthur I. Vorys, for appellee: The investigation is not legislative but judicial in its character; it is an attempt to prosecute, try, and determine the guilt or innocence of Harry M. Daugherty. Congress has no such power except in impeachment proceedings. Kilbourn v. Thompson, 103 U. S. 168, 192, 193, 26 L. ed. 377, 387, 388; The Senate, when acting in its legislative capacity, has no power to arrest in order to compel testimony; the Senate can compel testimony only in cases where it has judicial power specifically granted by the Constitution. 4 Wigmore, Ev. 2d ed. § 2195; Marshall v. Gordon, 243 U. S. 521, 536, 61 L. ed. 881, 885, L.R.A.1917F, 279, 37 Sup. Ct. Rep. 448, Ann. Cas. 1918B, 371; Wilkes's Case, 2 Wils. 151, 95 Eng. Reprint, 737; 19 How. St. Tr. 1405; Entick v. Carrington, 19 How. St. Tr. 1029; Boyd v. United States, 116 U. S. 616, 625, 29 L. ed. 746, 749, 6 Sup. Ct. Rep. 524; Cooley, Const. Lim. 7th ed. p. 424; Langenberg v. Decker, 131 Ind. 471, 16 L.R.A. 108, 31 N. E. 190; Re Sims, 54 Kan. 1, 25 L.R.A. 110, 45 Am. St. Rep. 261, 37 Pac. 135; Kielley v. Carson, 4 Moore, P. C. C. 63, 13 Eng. Reprint, 225; Fenton v. Hampton, 11 Moore, P. C. C. 347, 14 Eng. Reprint, 727; Ex parte Dansereau, 19 Lower Can. Jur. 210; Re Pacific R. Commission (C. C.) 32 Fed. 253; Re Chapman, 166 U. S. 661, 41 L. ed. 1154, 17 Sup. Ct. Rep. 677; Harriman v. Interstate Commerce Commission, 211 U. S. 407, 418, 53 L. ed. 253, 262, 29 Sup. Ct. Rep. 115; Boyd v. United States, 116 U. S. 615, 631, 29 L. ed. 746, 751, 6 Sup. Ct. Rep. 524; Ellis v. Interstate Commerce Commission, 237 U. S. 434, 444, 59 L. ed. 1036, 1040, 35 Sup. Ct. Rep. 645; Federal Trade Commission v. American Tobacco Co. 264 U. S. 298, 305, 306, 68 L. ed. 696, 700, 701, 32 A.L.R. 786, 44 Sup. Ct. Rep. 336; Ex parte Nugent, Brunner, Col. Cas. 296, Fed. Cas. No. 10,375; Re Mason (D. C.) 43 Fed. 510. The Senate cannot legislate, and the Senate cannot compel testimony relating to proposed legislation which the Senate alone has in mind. State ex rel. Robertson Realty Co. v. Guilbert, 75 Ohio St. 1, 78 N. E. 931. If a witness may be compelled to testify in order to aid the Senate in the formulation of legislation, then it must be shown what legislation the Senate has in view, and that the evidence sought is pertinent to the subject-matter of legislation under consideration, and the testimony of the witness can be compelled only through judicial process of the court. Interstate Commerce Commission v. Brimson, 154 U. S. 447, 448, 38 L. ed. 1047, 4 Inters. Com. Rep. 45, 14 Sup. Ct. Rep. 1125; Kilbourn v. Thompson, 103 U. S. 168, 190, 26 L. ed. 377, 386; Burnham v. Morrissey, 14 Gray, 226, 74 Am. Dec. 676; Harriman v. Interstate Commerce Commission, 211 U. S. 407, 53 L. ed. 253, 29 Sup. Ct. Rep. 115; Re Chapman, 166 U. S. 661, 668, 41 L. ed. 1154, 1158, 17 Sup. Ct. Rep. 677; Federal Trade Commission v. Baltimore Grain Co. (D. C.) 284 Fed. 886; Federal Trade Commission v. American Tobacco Co. 264 U. S. 298, 68 L. ed. 696, 32 A.L.R. 786, 44 Sup. Ct. Rep. 336; Hale v. Henkel, 201 U. S. 43, 50 L. ed. 652, 26 Sup. Ct. Rep. 370; Re Barnes, 204 N. Y. 108, 97 N. E. 508; United States v. Searles, 25 Wash. L. Rep. 384; Boyd v. United States, 116 U. S. 616, 29 L. ed. 746, 6 Sup. Ct. Rep. 524; Entick v. Carrington, 19 How. St. Tr. 1029; Re Pacific R. Commission (C. C.) 32 Fed. 241; 13 C. J. 65; Re Spencer, MacArth. & M. 433; Davis v. Overman, 184 Ind. 647, 112 N. E. 243; Herdman v. State, 54 Neb. 626, 47 N. W. 1097, 11 Am. Crim. Rep. 298; Back v. State, 75 Neb. 603, 106 N. W. 787. The warrant issued by the president pro tempore of the Senate was not supported by oath or affirmation as required by the Federal Constitution. Voorhees, Arrest, § 27; United States v. Michalski (D.C.) 265 Fed. 839; Re Clark, 208 Mo. 121, 15 L.R.A. (N.S.) 389, 106 S. W. 990; Chapin v. People, 57 Ill. App. 577; Whittem v. State, 36 Ind. 196; State v. Henthorn, 46 Kan. 613, 26 Pac. 937; Murdock's Case, 2 Bland, Ch. 461, 20 Am. Dec. 381; Hurley v. Com. 188 Mass. 443, 74 N. E. 677, 3 Ann. Cas. 757; Re Wood, 82 Mich. 75, 45 N. W. 1113. The arrest of Mr. Daugherty is illegal for the reason that it was made under a warrant to bring him forcibly before the Senate to answer the Senate's questions, before he had been subpoenaed by the Senate and had refused to obey the Senate. United States v. Caldwell, 2 Dall. 333, 1 L. ed. 404, Fed. Cas. No. 14,708; 40 Cyc. 2172. court, and will make no order which may effectuate a violation of the injunction or conflict with the purpose and spirit of the injunction. Stanfield v. Umatilla River Water Users' Asso. (C. C.) 192 Fed. 596; Bruen v. Ogden, 11 N. J. L. 370, 20 Am. Dec. 593; State ex rel. Lyon v. State Dispensary Commission, 79 S. C. 316, 60 S. E. 928; Murray v. South Carolina, 213 U. S. 174, 53 L. ed. 752, 29 Sup. Ct. Rep. 465; Garrett v. New York Transit Co. (C. C.) 36 Fed. 513; United States v. Pedroli (C. C.) 111 Fed. 14; Peck v. Jennes, 7 How. 612, 624, 12 L. ed. 841, 846; 2 High, Inj. ¶ 1446; Westervelt v. National Mfg. Co. 33 Ind. App. 18, 69 N. E. 169; Stollenwerk v. Klevenow, 151 Wis. 355, 139 N. W. 203; Carr v. District Ct. 147 Iowa, 663, 126 N. W. 791, Ann. Cas. 1913D, 378; Re Empire State Surety Co. 164 App. Div. 586, 150 N. Y. Supp. 398; Re Fortunato (D. C.) 123 Fed. 622. The law does not provide for any deputy sergeant at arms. If there were such an officer as deputy sergeant at arms, this warrant could not be executed by him because it is directed to the sergeant at arms, and not to a deputy. Sanborn v. Carleton, 15 Gray, 399. Mr. Justice Van Devanter delivered the opinion of the court: This is an appeal from the final order in a proceeding in habeas corpus discharging a recusant witness held in custody under process of attachment issued from the United States Senate in the course of an investigation which it was making of the administration of the Department of Justice. A full statement of the case is necessary. The Department of Justice is one of the great executive departments established by congressional enactment and has charge, among other things, of the initiation and prosecution of all suits, civil and criminal, which may be brought in the right and name of the United States to compel obedience or punish disobedience to its laws, to recover property obtained from it by unlawful or fraudulent means, or to safeguard its rights in other respects; and also of the assertion and protection of its interests when it or its officers are sued by others. The Attorney Gen (273 U. S. 135, 71 L. ed. (Adv. 370), 47 Sup. Ct. Rep. 319.) eral is the head of the department, and its functions are all to be exercised under his supervision and direction.1 Harry M. Daugherty became the Attorney General March 5, 1921, and held that office until March 28, 1924, when he resigned. Late in that period various charges of misfeasance and nonfeasance in the Department of Justice after he became its supervising head were brought to the attention of the Senate by individual senators and made the basis of an insistent demand that the department be investigated to the end that the practices and deficiencies. which, according to the charges, were operating to prevent or impair its right administration might be definitely ascertained and that appropriate and effective measures might be taken to remedy or eliminate the evil. The Senate regarded the charges as grave and requiring legislative attention and action. Accordingly it formulated, passed and invited the House of Representatives to pass (and that body did pass) two measures taking important litigation then in immediate contemplation out of the control of the Department of Justice and placing the same in charge of special counsel to be appointed by the President; and also adopted a resolution authorizing and directing a select committee of five senators "to investigate circumstances and facts, and report the same to the Senate, concerning the alleged failure of Harry M. Daugherty, Attorney General of the United States, to prosecute properly violators of the Sherman Anti-trust 1 Rev. Stat. §§ 346, 350, 359-362, 367, Comp. Stat. §§ 515, 521, 533, 535-537, 542, 6 Fed. Stat. Anno. 2d ed. pp. 242, 244, 250, 251; Judicial Code, §§ 185, 212; [March 2, 1889] 25 Stat. at L. 858, 859, chap. 382, §§ 3, 5, Comp. Stat. §§ 8576, 8584, 4 Fed. Anno. 2d ed. pp. 448, 490; [July 2, 1890] 26 Stat, at L. 209, chap. 647, § 4, Comp. Stat. § 8823, 9 Fed. Stat. Anno. 2d. ed. p. 701; [June 30, 1906] 34 Stat. at L. 816, chap. 3935, Comp. Stat. § 534, 4 Fed. Stat. Anno. 2d ed. p. 774; [October 15, 1914] 38 Stat. at L. 736, chap. 323, § 15, Comp. Stat. § 8835n, 9 Fed. Stat. Anno. 2d ed. p. 744; United States v. San Jacinto Tin Co. 125 U. S. 273, 278, 31 L. ed. 747, 749, 8 Sup. Act and the Clayton Act against monopolies and unlawful restraint of trade; the alleged neglect and failure of the said Harry M. Daugherty, Attorney General of the United States, to arrest and prosecute Albert B. Fall, Harry F. Sinclair, E. L. Doheny, C. R. Forbes, and their coconspirators in defrauding the Government, as well as the alleged neglect and failure of the said Attorney General to arrest and prosecute many others for violations of Federal statutes, and his alleged failure to prosecute properly, efficiently, and promptly, and to defend, all manner of civil and criminal actions wherein the Government of the United States is interested as a party plaintiff or defendant. And said committee is further directed to inquire into, investigate and report to the Senate the activities of the said Harry M. Daugherty, Attorney General, and any of his assistants in the Department of Justice which would in any manner tend to impair their efficiency or influence as representatives of the government of the United States." The resolution also authorized the committee to send for books and papers, to subpoena witnesses, to administer oaths, and to sit at such times and places as it might deem advisable.3 In the course of the investigation the committee issued and caused to be duly served on Mally S. Daugherty,-who was a brother of Harry M. Daugherty Daugherty and president of the Midland National Bank of Washington Court House, Ohio,-a subpoena commanding him to appear before Ct. Rep. 850; Kern River Co. v. United States, 257 U. S. 147, 155, 66 L. ed. 175, 179, 42 Sup. Ct. Rep. 60; Ponzi v. Fessenden, 258 U. S. 254, 262, 66 L. ed. 607, 612, 22 A.L.R. 879, 42 Sup. Ct. Rep. 309. 2 Cong. Rec. 68th Cong. 1st Sess. pp. 1520, 1521, 1728; [February 8, 1924] chap. 16, 43 Stat. at L. 5; Cong. Rec. 68th Cong. 1st Sess. pp. 1591, 1974; [February 21, 1924] chap. 39, 43 Stat. at L. 15; [February 27, 1924] chap. 42, 43 Stat. at L. 16. 3 For the full resolution and two amendments adopted shortly thereafter, see Cong. Rec. 68th Cong. 1st Sess. pp. 3299, 3409, 3410, 3548, 4126. the committee for the purpose of giving testimony bearing on the subject under investigation, and to bring with him the "deposit ledgers of the Midland National Bank since November 1, 1920; also note files and transcript of owners of every safety vault; also records of income drafts; also records of any individual account or accounts showing withdrawals of amounts of $25,000 or over during above period." The witness failed to appear. A little later in the course of the investigation the committee issued and caused to be duly served on the same witness another subpoena commanding him to appear before it for the purpose of giving testimony relating to the subject under consideration-nothing being said in this subpoena about bringing records, books or papers. The witness again failed to appear; and no excuse was offered by him for either failure. The committee then made a report to the Senate stating that the subpœnas had been issued, that according to the officer's returns-copies of which accompanied the report-the witness was personally served; and that he had failed and refused to appear. After a reading of the report, the Senate adopted a resolution reciting these facts and proceedings as follows: 5 "Whereas the appearance and testimony of the said M. S. Daugherty is material and necessary in order that the committee may properly execute the functions imposed upon it and may obtain information necessary as a basis for such legislative and other action as the Senate may deem necessary and proper: Therefore be it "Resolved, That the President of the Senate pro tempore issue his warrant commanding the Sergeant at Arms or his deputy to take into custody the body of the said M. S. Daugherty wherever found, and to bring the said M. S. Daugherty before the bar of the Senate, then and there to answer such questions pertinent to the matter under inquiry 4 Senate Report No. 475, 68th Cong. 1st Sess. as the Senate may order the President of the Senate pro tempore to propound; and to keep the said M. S. Daugherty in custody to await the further order of the Senate." It will be observed from the terms of the resolution that the warrant was to be issued in furtherance of the effort to obtain the personal testimony of the witness and, like the second subpoena, was not intended to exact from him the production of the various records, books and papers named in the first subpoena. The warrant was issued agreeably to the resolution and was addressed simply to the Sergeant at Arms. That officer on receiving the warrant endorsed thereon a direction that it be executed by John J. McGrain, already his deputy, and delivered it to him for execution. The deputy, proceeding under the warrant, took the witness into custody at Cincinnati, Ohio, with the purpose of bringing him before the bar of the Senate as commanded; whereupon the witness petitioned the federal district court in Cincinnati for a writ of habeas corpus. The writ was granted and the deputy made due return setting forth the warrant and the cause of the detention. After a hearing the court held the attachment and detention unlawful and discharged the witness, the decision being put on the ground that the Senate in directing the investigation and in ordering the attachment exceeded its powers under the Constitution, 299 Fed. 620. The deputy prayed and was allowed a direct appeal to this Court under § 238 of the Judicial Code as then existing. We have given the case earnest and prolonged consideration because the principal questions involved are of unusual importance and delicacy. They are (a) whether the Senate-or the House of Representatives, both being on the same plane in this regard-has power, through its own process, to compel a private individual to ap 5 Cong. Rec. 68th Cong. 1st Sess. pp. 7215-7217. |