ADDRESS OF THE PRESIDENT OF THE COLORADO

ASSOCIATION

Robert S. Gast of Pueblo

[Robert S. Gast: born Pueblo, Colorado, September 27, 1879; A.B. Yale University, 1902; LL.B. Columbia University, 1905; admitted to Bar of Colorado, 1905; President Colorado Bar Association, 1923-1924; residence, Pueblo.]

THE INQUISITORIAL POWERS OF CONGRESS

The assumption by the 68th Congress of exceedingly broad inquisitorial powers, the time spent in their exercise and the general interest in these investigations prompts me to hope that an inquiry, as to whether or not these powers so freely invoked in fact exist, will not be without interest.

Of course the answer to this query must be found in the Constitution, through which alone the powers of Congress are derived. While the powers of our government are divided into three grand divisions-each in the main clearly separated and defined and while the function of Congress is essentially legislative, it is equally a truism that Congress does have certain judicial powers the right to impeach and try officers of the government, to judge the election and qualifications of its members, to compel their attendance "under such penalties as each House may provide", "to punish its members for disorderly behavior, and, with the concurrence of two-thirds, expel a member."1

A famous example of the exercise by Congress of one of these judicial powers is reported In Re Chapman, 166 U. S. 661. During a fight on a tariff bill the Senate appointed a committee to investigate charges that some of its members were yielding to corrupt influences in the consideration of this measure. Chapman, a stock broker, refused to testify as to dealings in sugar stocks by his firm for the account of any member of the Senate and was indicted, tried and convicted under a statute making it a misde

1Constitution: Art. I, Sections 3 and 5.

meanor to decline to answer a pertinent question asked of a witness by the authority of either House of Congress.2

Mr. Chief Justice Fuller distinguished the Kilbourn case which must presently be considered, emphasized the fact that the investigation had to do with the conduct of a Senator-a matter clearly within the Senate's judicial jurisdiction-and with the entire court held that the questions asked were pertinent and not an unreasonable search into Chapman's private affairs. Further, this case decides that in aid of these express powers Congress can either punish for contempt or proceed under the statute enacted to enforce the attendance of witnesses.3

Since the only judicial powers expressly conferred on Congress are those previously enumerated and since a Congressional investigation may assume a judicial character beyond their scope, the first question is as to whether or not Congress may exercise any judicial powers other than those expressly conferred, and here, at least, we are on sure ground.

When Jay Cooke & Co. failed, it developed that the United States was a creditor as a result of deposits made by the Secretary of the Navy with the London branch of that firm. Among the assets of the bankrupt was an interest in a real estate pool of which the trustee made a settlement that was unsatisfactory to the House of Representatives, which:

Resolved, that a special committee of five members of this House, to be selected by the speaker, be appointed to inquire into the matter and history of said real-estate pool and the character of said settlement, with the amount of property involved in which Jay Cooke & Co. were interested, and the amount paid or to be paid in said settlement, with power to send for persons and papers and report to this House.

This committee caused Hallett Kilbourn, seemingly a member of the pool, to be subpoenaed and on his appearance interrogated about its affairs. He refused to testify, by resolution was adjudged guilty of contempt of the House and, under its orders, arrested and imprisoned by the Sergeant-at-Arms. Thereafter, he brought an action for false imprisonment against the members of

*Revised Statutes: Sections 102-104.

In Re Falvey, 7 Wis. 630, and In Re Gunn (Kansas), 32 Pac. 470. 948, should be classified with In Re Chapman, although it has been attempted to give them a broader meaning.

the committee and the Sergeant-at-Arms.

His demurrer to the defendants' pleas was overruled and judgment entered for the defendants.

In Kilbourn vs. Thompson, 103 U. S. 168, the Supreme Court sustained this judgment as to the members of the committee because of the privilege incident "to things generally done in a session of the House by one of its members in relation to the business before it" but reversed the judgment as to the Sergeant-atArms.

Since the Constitution does not expressly vest in either House of Congress the power to punish for contempt, the opinion states. that:

The advocates of this power have, therefore, resorted to an implication of its existence, founded on two principal arguments. These are, 1st, its exercise by the House of Commons of England, from which country we, it is said, have derived our system of parliamentary law; and, 2d, the necessity of such a power to enable the two Houses of Congress to perform the duties and exercise the powers which the Constitution has conferred on them.

After a studied review of the authorities the court ruled that the first argument is fallacious because unlike our Cougress "the two Houses of Parliament were each courts of judicature originally, which, though divested by usage, and by statute, probably, of many of their judicial functions, have yet retained so much of that power as enable them, like any other court, to punish for a contempt."

The second proposition, that an implied power to punish for contempt must exist in aid of the legislative functions of Congress, the court declined to pass on because it found it possible to base its decision on another ground-a ground that greatly limits the field open to speculation. After noting that the Constitution "has blocked out with singular precision, and in bold lines, in its three primary articles, the allotment of power to the executive, the legislative, and the judicial departments of government" and "that the perfection of the system requires that the lines which separate

"The Kilbourn case expressly repudiates the implication in Anderson vs. Dunn, 6 Wheat. 204, that Congress possesses the general power to punish for contempt.

and divide these departments shall be broadly and clearly defined," the court adds:

It also remains true, as a general rule that the powers confided by the Constitution to one of these departments cannot be exercised by another. * * If what we have said of the division of the powers of the government among the three departments be sound, this is equivalent to a declaration that no judicial power is vested in the Congress or either branch of it, save in the cases specifically enumerated to which we have referred. If the investigation which the committee was directed to make was judicial in its character, and could only be properly and successfully made by a court of justice, and if it related to a matter wherein relief or redress could be had only by a judicial proceeding, we do not, after what has been said, deem it necessary to discuss the proposition that the power attempted to be exercised was one confided by the Constitution to the judicial and not to the legislative department of the government. We think it equally clear that the power asserted is judicial and not legislative.

In reaching this conclusion the court applied these not archaic tests:

What was this committee charged to do?

How

To inquire into the nature and history of the real-estate pool. indefinite! What was the real-estate pool? Is it charged with any crime or offence? If so, the courts alone can punish the members of it. Is it charged with a fraud against the government? Here, again, the courts, and they alone, can afford a remedy. Was it a corporation whose powers Congress could repeal? There is no suggestion of the kind.

Can the rights of the pool, or of its members and the rights of the debtor, and of the creditor of the debtor, be determined by the report of a committee or by an act of Congress? If they cannot, what authority has the House to enter upon this investigation into the private affairs of individuals who hold no office under the government?

As the doctrine of the Kilbourn case remains unquestioned, we can say with assurance that except in the cases specifically enumerated in the Constitution, Congress has no inquisitorial powers in any matter that is judicial in character.

If you will pardon a digression I will add that at the trial of his case Kilbourn, who had spent some 35 days in jail, obtained a verdict of $60,000 against the Sergeant-at-Arms but these damages were held excessive. The second trial resulted in a verdict of $37,500, which was reduced to $20,000 and paid by order of Congress with interest and costs.

The most recent application of the principle of the Kilbourn case was made by Judge Cochran of the Eastern District of Kentucky, sitting at Cincinnati, in an opinion filed May 31, 1924,

In the Matter of the Application of Mally S. Daugherty for a Writ of Habeas Corpus.5 In March, as you will recall, the Senate appointed a committee to investigate the then Attorney General's conduct of his office and particularly his failure to arrest and prosecute Messrs. Fall, Sinclair, Doheny and Forbes.

This committee twice subpoenaed Mally S. Daugherty to appear before the committee and to bring with him the deposit ledger of a bank of which he was the President, with its note files, transcript of owners of all safety deposit boxes, the record of income drafts and of any individual account showing withdrawals of $25,000 or more since November 1, 1920. Upon Mr. Daugherty's refusal to obey these summons and after his brother had resigned as Attorney General, the Senate adopted another resolution reciting that:

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 obtain information necessary as a basis for such legislative and other action as the Senate may deem necessary and proper;

and commanding the Sergeant-at-Arms to arrest and bring M. S. Daugherty before the bar of the Senate. In the proceedings under review his release and discharge were ordered on the theory that the investigation was a judicial one and therefore beyond the scope of the Senate's powers. In reaching this conclusion Judge Cochran stresses the point that the Senate's first resolution was devoid of any evidence of a legislative purpose and that the recital in the second resolution of a desire "to obtain information necessary as a basis for such legislation as the Senate may deem necessary and proper" was an apparent afterthought.

* * *

In completing the comparison with the Kilbourn case, the court adds:

Nor is the action of the Senate validated by the possibility that from the investigation some suggestion may come of needed legislation, any more than, in that case, the action of the House of Representatives was validated by the possibility that from that investigation some suggestion might come of needed legislation in regard to bankruptcy proceedings.

$299 Fed. 620.