Ex parte Blair

• Decision Date: 16 October 1918
• Docket Number: M3-292 to M3-294.
• Citation: 253 F. 800
• Parties: Ex parte BLAIR. Ex parte PHILLIPS. Ex parte TEMPLETON.
• Court: U.S. District Court — Southern District of New York

253 F. 800

Ex parte BLAIR. Ex parte PHILLIPS. Ex parte TEMPLETON.

Nos. M3-292 to M3-294.

United States District Court, S.D. New York.

October 16, 1918

Martin W. Littleton, of New York City, for petitioners.

Francis G. Caffey, U.S. Atty., of New York City, S. R. Rush, Sp Asst. Atty. Gen., of Omaha, Neb., and Oliver E. Pagan, of Washington, D.C., for the United States.

HENRY D. CLAYTON, District Judge.

These three cases were argued together; each rests upon the same facts, and each presents the same questions of law.

The facts, and they are not disputed, but appear of record essential to an understanding of the questions presented, are as follows: Blair, Phillips, and Templeton, residents of the city of Detroit, in the state of Michigan, were each duly served with subpoenas at Detroit, requiring them to appear before the United States grand jury sitting in the Southern district of New York, at New York City. The subpoena to Blair, and the one to Templeton as well, was a subpoena duces tecum, requiring in the case of each of them that they produce before the grand jury certain records of the Truman H. Newberry senatorial committee described in the subpoenas.

The witnesses appeared separately before the grand jury in obedience to the process and were duly sworn. Each witness separately was then asked certain preliminary questions as to his residence, occupation, etc., and each was then asked questions touching the matter then before the grand jury, to wit, an inquiry among other things, concerning supposed violations of section 125 of the United States Criminal Code Act March 4, 1909, c. 321, 35 Stat. 1111 (Comp. St. 1916 Sec. 10295)), which relates to perjury; and the so-called federal Corrupt Practices Act (Act Cong. June 25, 1910, c 392, 36 Stat. 822), as amended by Act Aug. 19, 1911, c. 33, 37 Stat. 25, and further amended by Act Aug. 23, 1912, c. 349, 37 Stat. 360 (U.S. Comp. St. 1916, Sec. 188). This act defines political committees, requires the keeping and filing of certain financial statements, limits the amount of money that may be expended by candidates for nomination and election to the offices of Representative and Senator in Congress, forbids certain acts and promises by candidates and committees, and provides punishment for the violation of the act. The act also contains the following provision (section 8):

'Every statement herein required shall be verified by the oath or affirmation of the candidate, taken before an officer authorized to administer oaths; and the depositing of any such statement in a regular postoffice, directed to the clerk of the House of Representatives or to the secretary of the Senate, as the case may be, duly stamped and registered within the time required herein shall be deemed a sufficient filling of any such statement under any of the provisions of this act. ' Comp. St. 1916, Sec. 195.

The inquiry before the grand jury, and about which the testimony of the witnesses was sought, had to do with the verification in the Southern district of New York, and the filing of reports to the secretary of the United States Senate by Truman H. Newberry, a candidate for the Republican nomination to the office of United States Senator at the primary election held in and under the laws of the state of Michigan in August, 1918, which office is to be voted for at the general election in November, 1918. The witnesses were informed that this was the object of the grand jury investigation, that the purpose of the prosecution was not to charge them with any offense, and that, if the answers to the questions tended to incriminate or degrade the witness, the law would not require them to answer.

Each of the witnesses then refused to answer the questions asked concerning the matter under investigation on the grounds set out in a written statement read to and left with the grand jury in each case. This written statement was to the effect that the reason they did not answer the questions was because the grand jury and the court were without any jurisdiction to inquire into the manner and method of the conduct of a campaign in Michigan for a party nomination, through the means of a primary election, for United States Senator; that said federal Corrupt Practices Act as amended is unconstitutional, and that no federal court or federal grand jury in any state has the constitutional authority to conduct an inquiry under said act regarding a primary election for the nomination of a United States Senator; and that they made their statements upon advice of counsel. The witnesses were thereupon each separately asked by counsel for the United States whether they refused to testify for the reason that so to do would incriminate them, to which question each witness replied that he would make no other answer than a reference to the reasons for his refusal as set forth in the written statement read to and left with the grand jury. The witnesses Blair and Templeton also refused, for the same reasons, to produce the documents and papers called for in the subpoenas duces tecum served on them.

On October 10, 1918, the grand jury presented the witnesses to the court, Judge Edward E. Cushman presiding, for contumacy in having refused to answer the questions. The court, after hearing the argument of counsel for the petitioners, including the argument as to the unconstitutionality of the act, and also the argument of counsel for the United States, ordered the witnesses to go again before the grand jury and answer the questions.

On October 11, 1918, the witnesses were called again before the grand jury, and counsel for the government again propounded the questions relating to the matter then before the grand jury. The witnesses each again, for the reasons stated by them when they first appeared before the grand jury, declined to answer the questions or to produce the documents and papers called for in the subpoenas duces tecum. Thereupon the matter and the witnesses were again presented by the grand jury to the court.

The matter was heard by the court, Judge Cushman presiding, and he adjudged the witnesses in contempt for failure to answer, and remanded them to the custody of the United States marshal, to be committed to the Ludlow Street Jail until they should comply with the order of the court directing them to answer the questions asked by the grand jury.

The witnesses each now petition the court for a writ of habeas corpus, and each alleges that he is unlawfully restrained of his liberty, and without due process of law, and in violation of the rights of petitioner secured to him under the Constitution of the United States. Each petitioner alleges that he is restrained solely under the authority of the order of the court of October 11, 1918, committing the petitioner to the custody of the marshal for an alleged contempt in refusing to answer certain questions propounded to him before and in the presence of the grand jury. The petition in each case avers:

'Petitioner is restrained of his liberty solely under and by virtue of said order of commitment and not for any other cause or reason.'

Paragraph 11 of each of the petitions alleges:

'On information and belief: That the Congress of the United States has no jurisdiction to enact laws regulating, controlling, or in any manner affecting the holding of primary elections for the nominations by political parties of candidates for the office of United States Senator to be voted for at succeeding general elections to fill said office, or regulating, affecting or controlling in any manner the conduct of candidates for such nomination at said primary elections. That neither the United States grand jury nor the District Court of the United States for the Southern District of New York has any power or authority to inquire into the method or manner of holding primary elections in the state of Michigan or elsewhere, or to inquire into, indict, or try any person for an alleged violation of said act of Congress, hereinbefore described, which attempts to regulate the conduct of candidates for the nomination for the office of United States Senator at such primary elections. That said act of Congress is unconstitutional and void, so far as it relates to primary elections, and that the arrest and detention of the petitioner is without due process of law and in violation of his constitutional rights. That under the facts hereinbefore set out petitioner was not guilty of contempt in refusing to answer the questions asked him before said grand jury, and that said court had no jurisdiction or power to adjudge petitioner guilty of contempt, and said order of commitment is null and void.'

The application for the writ coming on to be heard, the United States moved to discharge and dismiss the writ of habeas corpus, and to recommit the petitioners to the custody of the marshal, for the reason and upon the ground that, under the facts and circumstances stated in the petition and shown by the record, said writ, in legal effect, is a writ of error.

Counsel for petitioners has ably and earnestly urged that the act in question is unconstitutional, in so far as it relates to the selection through primary elections of candidates for the office of United States Senator and the office of Representative in Congress, and while it may be said that the government has not made satisfactory answer to his contention, yet this case, as will be seen, does not render it necessary to pass upon that question now. As was said by Mr. Justice Peckham in Baker v. Grice, 169 U.S. 284, 292, 18 Sup.Ct. 323, 326 (42 L.Ed. 748):

'It is a matter of common occurrence-- indeed, it is almost the undeviating rule of the courts, both state and federal-- not to decide constitutional questions until the necessity

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