Obrázky stránek
PDF
ePub

(273 U. S. 135, 71 L. ed.

pear before it or one of its committees and give testimony needed to enable it efficiently to exercise a legislative function belonging to it under the Constitution, and (b) whether it sufficiently appears that the process was being employed in this instance to obtain testimony for that purpose.

Other questions are presented which in the regular course should be taken up first.

The witness challenges the authority of the deputy to execute the warrant on two grounds-that there was no provision of law for a deputy, and that, even if there were such a provision, a deputy could not execute the warrant because it was addressed simply to the Sergeant at Arms. We are of opinion that neither ground is tenable.

[ocr errors]

The Senate adopted in 1889, and has retained ever since, a standing order declaring that the Sergeant at Arms may appoint deputies "to serve process or perform other duties" in his stead, that they shall be "officers of the Senate," and that acts done and returns made by them "shall have like effect and be of the same validity as if performed or made by the Sergeant at Arms in person. In actual practice the Senate has given full effect to the order; and Congress has sanctioned the practice under it by recognizing the deputies sometimes called assistants as officers of the Senate, by fixing their compensation and by making appropriations to pay them." Thus there was ample provision of law for a deputy. The fact that the warrant was addressed simply to the Sergeant at

Congress-sergeant at arms -provision for deputy-sufflciency.

[blocks in formation]

(Adv. 370), 47 Sup. Ct. Rep. 319.)

The stand

were to be considered. ing order and the resolution under which the warrant was issued plainly contemplated that he was to be free to execute the warrant in person or to direct a deputy to execute it. They expressed the intention of the Senate; and the words of the warrant were to be taken, as they well could be, in a sense which would give effect to that intention. Thus understood, the warrant admissibly could be executed by a deputy if the Sergeant at Arms so directed, which he did.

The case of Sanborn v. Carleton, 15 Gray, 399, on which the witness relies, related to a warrant issued to the Sergeant at Arms in 1860, which he deputed another to execute. At that time there was no standing rule or statute permitting him to act through a deputy; nor was there anything in the resolution under which the warrant was issued indicative of a purpose to permit him to do so. All that was decided was that in the absence of a permissive provision, in the warrant or elsewhere, he could not commit its execution to another. The provision which was absent in that case and deemed essential is present in this.

The witness points to the provision in the 4th Amendment to the Constitution declaring "no warrants shall issue but upon probable cause supported by oath or affirmation" and contends that the warrant was void because the report of the committee on which it was based was unsworn. We think the contention overlooks the relation of the committee to the Senate and to the matters reported, and puts aside the accepted interpretation of the constitutional provision.

The committee was a part of the Senate, and its members were acting under their oath of office as senators. The matters reported pertained to their proceedings and were

at L. 424, chap. 103; [February 20, 1923] 42 Stat, at L. 1266, chap. 98, Comp. Stat. § 58; [April 2, 1924] 43 Stat. at L. 33, chap. 81; [June 7, 1924] 43 Stat. at L. 580, chap. 303, Comp. Stat. § 58; [March 4, 1925] 43 Stat. at L. 1288, chap. 549.

within their own knowledge. They had issued the subpoenas, had received and examined the officer's returns thereon (copies of which accompanied the report), and knew the witness had not obeyed either subpoena or offered any excuse for his failure to do so.

The constitutional provision was not intended to establish a new principle but to affirm and preserve a cherished rule of the common law designed to prevent the issue of groundless warrants. In legislative practice committee reports are regarded as made under the sanction of the oath of office of its members; and where the matters reported are within the committee's knowledge and constitute probable cause for an attachment such reports are acted on and given effect without requiring that they be supported by further oath or affirmation. This is not a new practice, but one which has come down from an early period. It was well recognized before the constitutional provision was adopted, has been followed ever since, and appears never to have been challenged until now. Thus it amounts to a practical interpretation, long continued, of both the original common law rule and the affirming constitutional provision, and should be given effect accordingly.R

The principle underlying the legislative practice has also been recognized and applied in judicial proceedings. This is illustrated by the settled rulings that courts in dealing with contempts committed in

8 Prigg v. Pennsylvania, 16 Pet. 539, 620, 621, 10 L. ed. 1060, 1091; The Laura (Pollock v. Bridgeport Ś. B. Co. 114 U. S. 411, 416, 29 L. ed. 147, 148, 5 Sup. Ct. Rep. 881; McPherson v. Blacker, 146 U. S. 1, 35, 36, 36 L. ed. 869, 877, 878, 13 Sup. Ct. Rep. 3; Ex parte Grossman, 267 U. S. 87, 118, 69 L. ed. 527, 534, 38 A.L.R. 131, 45 Sup. Ct. Rep. 332; Myers v. United States (Oct. 25, 1926) [272 U. S. 52, 71 L. ed. (Adv. 27), 47 Sup. Ct. Rep. 21].

9 Ex parte Terry, 128 U. S. 289, 307, et seq., 32 L. ed. 405, 409, 9 Sup. Ct. Rep. 77; Holcomb v. Cornish, 8 Conn. 375; 4 Bl. Com. 286.

10 Robbins v. Gorham, 25 N. Y. 588; Wil

their presence may order commitments without other proof than their own knowledge of the occurrence,9 and that they may issue attachments, based on their own knowledge of the default, where intended witnesses or jurors fail to appear in obedience to process shown by the officer's return to have been duly served.10 A further illustration is found in the rulings that grand jurors, acting under the sanction of their oath as such, may find and return indictments based solely on their own knowledge of the particular offenses, and that warrants may be issued on such indictments without further oath or affirmation; and still another is found in practice which recognizes that where grand jurors, under their oath as such, report to the court that a witness brought before them has refused to testify, the court may act on that report, although otherwise unsworn, and order the witness brought before it by attachment.12

We think the legislative practice, fortified as it is by the judicial practice, shows that the report of the committee-which was based on the committee's own knowledge and made-arrest-warunder the sanction oath-report of the oath of office of its members -was sufficiently supported by oath to satisfy the constitutional requirement.

rant without

of Senate committee.

The witness also points to the provision in the warrant and in the resolution under which it was issued requiring that he be "brought be

son v. State, 57 Ind. 71, 2 Am. Crim. Rep. 182.

11 Hale v. Henkel, 201 U. S. 43, 60-62, 50 L. ed. 652, 659, 660, 26 Sup. Ct. Rep. 370; Reg. v. Russell, Car. & M. 247; Com. v. Hayden, 163 Mass. 453, 455, 28 L.R.A. 318, 47 Am. St. Rep. 468, 40 N. E. 846, 9 Am. Crim. Rep. 408; decision of Mr. Justice Catron reported in Wharton, Crim. Pl. & Pr. 8th ed. pp. 224-226.

12 See Hale v. Henkel, supra; Blair v. United States, 250 U. S. 273, 63 L. ed. 979, 39 Sup. Ct. Rep. 468; Nelson v. United States, 201 U. S. 92, 95, 50 L. ed. 673, 674, 26 Sup. Ct. Rep. 358; Equity Rule 52, 226 U. S. 15, Appx. 57 L. ed. 1647, 33 Sup. Ct. Rep. xxxii; Heard v. Pierce, 8 Cush. 338.

[blocks in formation]

fore the bar of the Senate, then and there" to give testimony "pertinent to the subject under inquiry," contends that an essential prerequisite to such an attachment was wanting, because he neither had been subpœnaed to appear and testify before the Senate nor had refused to do so. The argument in support of the contention proceeds on the assumption that the warrant of attachment "is to be treated precisely the same as if no subpoena had been issued by the committee, and the same as if the witness had not refused to testify before the committee." In our opinion the contention and the assumption are both untenable. The committee was acting acting for the Senate and under its authorization; and therefore the subpoenas which the committee issued and the witness refused to obey are to be treated as if issued by the Senate. The warrant was issued as an auxiliary process to compel him to give the testimony sought by the subpoenas.; and its nature in this respect is not affected by the direction that his testimony be given at the bar of the Senate instead of before the committee. If the Senate deemed it proper, in view of his contumacy, to give that direction it was at liberty to do so.

-witness-refusal to appear and testifyattachment.

The witness sets up an interlocutory injunction granted by a state court at Washington Court House, Ohio, in a suit brought by the Midland National Bank against two members of the investigating committee, and contends that the attach

13 "On the 11th day of April, 1924, in an action in the court of common pleas of said Fayette county, Ohio, in which said Midland National Bank was plaintiff and said B. K. Wheeler and Smith W. Brookhart were defendants, upon the petition of said bank said court granted a temporary restraining order enjoining and restraining said defendants and their agents, servants, and employees from entering into said banking room and from taking, examining, or investigating any of the books, accounts, records, promissory notes, securities, letters, correspondence, papers, or any other property of said bank or of its depositors, borrowers, or customers in said

ment was in violation of that in

ference with

president for

tify.

junction and there- Injunctionfore unlawful. The against intercontention is plainly bank-effect of ill-founded. The in- attachment of junction was grant- refusal to tesed the same day the second subpoena was served, but whether earlier or later in the day does not appear. All that the record discloses about the injunction is comprised in the paragraph copied in the margin from the witness's petition for habeas corpus.13 But it is apparent from what is disclosed that the injunction did not purport to place any restraint on the witness, nor to restrain the committee from demanding that he appear and testify personally to what he knew respecting the subject under investigation; and also that what the injunction did purport to restrain has no bearing on the power of the Senate to enforce that demand by attachment.

In approaching the principal questions, which remain to be considered, two observations are in order. One is that we are not now concerned with the direction in the first subpoena that the witness produce various records, books and papers of the Midland National Bank. That direction was not repeated in the second subpoena; and is not sought to be enforced by the attachment. This was recognized by the court below, 299 Fed. 623, and is conceded by counsel for the appellant. The other is that we are not now concerned with the right of the Senate to propound or the duty of the witness to answer specific quesbanking room and from in any manner molesting and interfering with the business and affairs of said bank, its officers, agents, servants, and the business of its depositors, borrowers and customers with said bank until the further order of said court. The said defendants were duly served with process in said action and duly served with copies of said temporary restraining order on said 11th day of April, 1924, and said injunction has not been modified by said court and no further order has been made in said case by said court, and said injunction is in full force and effect."

tions, for as yet no questions have been propounded to him. He is asserting and is standing on his assertion-that the Senate is without power to interrogate him, even if the questions propounded be pertinent and otherwise legitimatewhich for present purposes must be assumed.

The first of the principal questions-the one which the witness particularly presses on our attention-is, as before shown, 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 appear before it or one of its committees and give testimony needed to enable it efficiently to exercise a legislative function belonging to it under the Constitution.

The Constitution provides for a Congress consisting of a Senate and House of Representatives and invests it with "all legislative powers" granted to the United States, and with power "to make all laws which shall be necessary and proper" for carrying into execution these powers and "all other powers" vested by the Constitution in the United States or in any department or officer thereof. Art. 1, §§ 1, 8. Other provisions show that, while bills can become laws only after being considered and passed by both houses of Congress, each house is to be distinct from the other, to have its own officers and rules, and to exercise its legislative function independently. Art. 1, §§ 2, 3, 5, 7. But there is no provision expressly investing either house with power to make investigations and exact testimony to the end that it may exercise its legislative function advisedly and effectively. So the question arises whether this power is so far incidental. to the legislative function as to be implied.

In actual legislative practice pow14 Story, Const. §§ 545 et seq.; 1 Kent, Com. p. 222.

15 May, Parliamentary Practice, 2d ed. pp. 80, 295, 299; Cushing, Legislative

er to secure needed information by such means has long been treated as an attribute of the power to legislate. It was so regarded in the British Parliament and in the colonial legislatures before the American Revolution; and a like view has prevailed and been carried into effect in both houses of Congress and in most of the state legislatures.1

15

This power was both asserted and exerted by the House of Representatives in 1792, when it appointed a select committee to inquire into the St. Clair expedition and authorized the committee to send for necessary persons, papers and records. Mr. Madison, who had taken an important part in framing the Constitution only five years before, and four of his associates in that work, were members of the House of Representatives at the time, and all voted for the inquiry. 3 Cong. Ann. 494. Other exertions of the power by the House of Representatives, as also by the Senate, are shown in the citations already made. Among those by the Senate, the inquiry ordered in 1859 respecting the raid by John Brown and his adherents on the armory and arsenal of the United States at Harper's Ferry is of special significance. The resolution directing the inquiry authorized the committee to send for persons and papers, to inquire into the facts pertaining to the raid and the means by which it was organized and supported, and to report what legislation, if any, was necessary to preserve the peace of the country and protect the public property. The resolution was briefly discussed and adopted without opposition. Cong. Globe, 36th Cong. 1st Sess. pp. 141, 152. Later on the committee reported that Thaddeus Hyatt, although subpoenaed to appear as a witness, had refused to do so; whereupon the Senate ordered that he be attached and brought before it to answer for his refusal. When

Practice, §§ 634, 1901-1903; 3 Hinds, Precedents, $§ 1722, 1725, 1727, 18131820; Cooley, Const. Lim. 6th ed. p. 161.

(273 U. S. 135, 71 L. ed. (Adv. 370), 47 Sup. Ct. Rep. 319.)

he was brought in he answered by challenging the power of the Senate to direct the inquiry and exact testimony to aid it in exercising its legislative function. The question of power thus presented was thoroughly discussed by several senatorsMr. Sumner of Massachusetts taking the lead in denying the power, and Mr. Fessenden of Maine in supporting it. Sectional and party lines were put aside and the question was debated and determined with special regard to principle and precedent. The vote was taken on a resolution pronouncing the witness's answer insufficient and directing that he be committed until he should signify that he was ready and willing to testify. The resolution was adopted -forty-four senators voting for it and ten against. Cong. Globe, 36th Cong. 1st Sess. pp. 1100-1109, 3006 -3007. The arguments advanced in support of the power are fairly reflected by the following excerpts from the debate:

Mr. Fessenden of Maine. "Where will you stop? Stop, I say, just at that point where we have gone far enough to accomplish the purposes for which we were created; and these purposes are defined in the Constitution. What are they? The great purpose is legislation. There are some other things, but I speak of legislation as the principal purpose. Now, what do we propose to do here? We propose to legislate upon a given state of facts, perhaps, or under a given necessity. Well, sir, proposing to legislate, we want information. We have it not ourselves. It is not to be presumed that we know everything; and if any body does presume it, it is a very great mistake, as we know by experience. We want information on certain subjects. How are we to get it? The Senator says, ask for it. I am ready to ask for it; but suppose the person whom we ask will not give it to us: what then? Have we not power to compel him to come before us? Is this power, which has been exercised by Parliament, and by all legislative bodies

down to the present day without dispute the power to inquire into subjects upon which they are disposed to legislate-lost to us? Are we not in the possession of it? Are we deprived of it simply because we hold our power here under a Constitution which defines what our duties are, and what we are called upon to do?

"Congress have appointed committees after committees, time after time, to make inquiries on subjects of legislation. Had we not power to do it? Nobody questioned our authority to do it. We have given them authority to send for persons and papers during the recess. body questioned our authority. We appoint committees during the session, with power to send for persons and papers. Have we not that authority, if necessary to legislation?

No

"Sir, with regard to myself, all I have to inquire into is: is this a legitimate and proper object, committed to me under the Constitution; and then, as to the mode of accomplishing it, I am ready to use judiciously, calmly, moderately, all the power which I believe is necessary and inherent, in order to do that which I am appointed to do; and, I take it, I violate no rights, either of the people generally or of the individual, by that course."

Mr. Crittenden of Kentucky. "I come now to a question where the co-operation of the two branches is not necessary. There are some things that the Senate may do. How? According to a mode of its own. Are we to ask the other branch of the legislature to concede by law to us the power of making such an inquiry as we are now making? Has not each branch the right to make what inquiries and investigation it thinks proper to make for its own action? Undoubtedly. You say we must have a law for it. Can we have a law? Is it not, from the very nature of the case, incidental to you as a Senate, if you, as a Senate, have the power of instituting an inquiry and of proceeding with that

« PředchozíPokračovat »