IN RE HEARINGS BY THE COMMITTEE ON BANKING, ETC.

• Citation: 245 F.2d 667
• Decision Date: 28 June 1957
• Docket Number: No. 11943.,11943.
• Parties: In the Matter of HEARINGS BY THE COMMITTEE ON BANKING AND CURRENCY OF THE UNITED STATES SENATE. Edward A. HINTZ, Petitioner-Appellant.
• Court: United States Courts of Appeals. United States Court of Appeals (7th Circuit)

245 F.2d 667 (1957)

In the Matter of HEARINGS BY THE COMMITTEE ON BANKING AND CURRENCY OF THE UNITED STATES SENATE.

Edward A. HINTZ, Petitioner-Appellant.

No. 11943.

United States Court of Appeals Seventh Circuit.

June 28, 1957.

John M. Leonard, Jr., Chicago, Ill., Ednyfed H. Williams, Chicago, Ill., Leonard D. Rutstein, Highland Park, Ill., of counsel, for petitioner-appellant.

Matthew Hale, Washington, D. C., for appellee.

Before DUFFY, Chief Judge, and FINNEGAN and SCHNACKENBERG, Circuit Judges.

FINNEGAN, Circuit Judge.

Acting under a committee resolution¹ adopted July 27, 1956, the Senate Committee on Banking and Currency held hearings on the Illinois banking situation,² at the United States Court House in Chicago, beginning on October 8, 1956. Endeavoring to obtain testimony from Edward A. Hintz, then and now, incarcerated in the Illinois State Penitentiary at Stateville, Joliet, Senator J. W. Fulbright, the Committee Chairman, petitioned October 4, 1956, through counsel, for issuance of a writ of habeas corpus ad testificandum to Joseph E. Ragen, Warden of the Illinois Penitentiary to bring Hintz, and other prisoners,³ before the Committee for giving testimony at its hearings. Sometime before filing that petition, Senator Fulbright wrote Governor Stratton of Illinois requesting him to arrange for the questioning of Hintz by the Senate Committee when it convened in Chicago. Responding by wire September 29, 1956, the Governor stated, in part, "* * * will be happy to cooperate and have issued permission for appearances in Chicago." An order was entered by the district judge on October 4, 1956 instructing the Clerk of Court to issue the requested writ of habeas corpus ad testificandum to Ragen as Warden "to bring * * * Edward A. Hintz * * before the Committee * * * on October 8, 1956, and every day thereafter until completion of the hearings, or until the Committee no longer requires the presence of said witnesses * * * in the offices of said Committee in the United States Court House * * * Chicago * * * as witnesses in hearings to be held by said Committee, and thereafter to be returned to the * * * penitentiary."

Hintz appeared before the Committee on October 9, 1956, having been brought to Chicago by the Warden in obedience to the writ issued under the district court's order and served on Ragen. Three days later, October 12, 1956, counsel for Hintz filed a motion to quash that writ of habeas corpus ad testificandum supported by briefs and subsequent oral arguments before the same district judge who had earlier taken affirmative action resulting in issuance of the writ. The appeal taken on Hintz's behalf to our court seeks review of the district court's order dated October 19, 1956, overruling the motion to quash the writ. From the Committee Counsel's verified motion to dismiss this appeal, we are informed that the Committee no longer required Hintz's presence.

Subsequently Senate Resolution 124, 85th Cong., 1st Sess. Report No. 232 (April 15, 1957) mandated certification of the Committee's report, concerning Hintz's refusal to answer the Senator's questions, to the U. S. Attorney for the Northern District of Illinois "to the end that * * * Edward A. Hintz may be proceeded against in the manner and form provided by law." During oral arguments of this present appeal both counsel conceded that the matter is currently pending in the U. S. Attorney's office in Chicago. See: Watkins v. U. S., 77 S.Ct. 1173.

Using the potential, and probably real, threat of contempt proceedings against him, Hintz insists this appeal can be used as a vehicle for testing the validity of the writ served on the Warden. Of course, Hintz was returned to the Illinois Penitentiary where he is presently serving a federal sentence concurrently with a sentence imposed upon him by an Illinois state court. Clearly the challenged writ is long since functus officio.

But we think there are several critical obstacles blocking our ultimate determination of questions raised by Hintz when attacking the district court's power to issue the writ. Once we limit the context within which answers on those issues are being sought it becomes clear that (1) this appeal is moot or (2) was taken from a non-final order, and (3) Hintz was neither a party litigant to the activity below and has questionable standing on appeal. We quickly add that our present view on this last item is not based upon his convict status but arises out of the fact the writ was directed to the Warden and, the problem of whether there was actually any litigation or technically a "proceeding" in the district court. However, our use of the word "moot" does not indicate we necessarily think that, at some stage, there was a justiciable controversy between Hintz and the government centering about the writ. Quite the contrary. For the writ of habeas corpus ad testificandum is a procedural device and not here invoked for the purposes of testing legality of detention. Since the desired witness was in a State penitentiary any subpoena directed to him would be unavailing. 8 Wigmore, Evidence § 2199 (3rd ed. 1940. The common law background of this method for obtaining court appearance and personal testimony of incarcerated prisoners was detailed in Ex parte Bollman, 1807, 4 Cranch 75, 8 U.S. 75, 2 L.Ed. 554; also see: Gibson v. United States, 8 Cir., 1931, 53 F.2d 721 for collected cases.

As a basis for decision mootness is unattractive when the case, as here, yields novel issues. But with our basic powers circumscribed by Article III of the Constitution we must pursue a diligent course aimed at averting adjudications in the absence of "a case or controversy." A sound grasp of what cannot or should not be attempted by Article III courts carries implications for achieving constitutional objectives ranging above some one isolated, though intriguing, abstract legal problem. Mr. Justice Gray reduced part of the relevant legal commands to this form in California v. San Pablo, etc., Railroad, 1893, 149 U.S. 308, 314, 13 S.Ct. 876, 878, 37 L.Ed. 747:

"The duty of this court, as of every judicial tribunal, is limited to determining rights of persons or of property, which are actually controverted in the particular case before it. When, in determining such rights, it becomes necessary to give an opinion upon a question of law,

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