Barry v. United States Cunningham, 647

• Decision Date: 27 May 1929
• Docket Number: No. 647,647
• Parties: BARRY et al. v. UNITED STATES ex rel. CUNNINGHAM
• Court: U.S. Supreme Court

279 U.S. 597

49 S.Ct. 452

73 L.Ed. 867

BARRY et al.

v UNITED STATES ex rel. CUNNINGHAM.

No. 647.

Argued April 23, 1929.

Decided May 27, 1929.

[Syllabus from pages 597-599 intentionally omitted] Mr. George W. Wickersham, of New York City, for petitioners.

[Argument of Counsel from pages 599-604 intentionally omitted] Mr. Ruby R. Vale, of Philadelphia, Pa., for respondent.

[Argument of Counsel from pages 604-609 intentionally omitted]

Page 609

Mr. Justice SUTHERLAND delivered the opinion of the Court.

The questions here presented for determination grow out of an inquiry instituted by the United States Senate in respect of the validity of the election of a United States Senator from Pennsylvania in November, 1926. The inquiry began before the election, immediately after the conclusion of the primaries, by the adoption of a resolution appointing a special committee to investigate expenditures, promises, etc., made to influence the nomination of any person as a candidate or promote the election of any person as a member of the Senate at the general election to be held in November, 1926.

After the Pennsylvania primaries, Cunningham was subpoenaed and appeared before this committee. Among other things, he testified that he was a member of an organization which supported William. S. Vare for Senator at the primary election; that he had given to the chairman of the organization $50,000 in two installments of $25,000 each prior to the holding of the primaries. He had been clerk of a court for 21 years and was then receiving a salary of $8,000 a year. He paid the money to the chairman in cash, but refused to say where he obtained it, except that he had not drawn it from a bank. He would not say how long the money had been in his possession; said he had never inherited any, but declined to answer whether he had made money in speculation. In short, he declined to give any information in respect of the sources of the money, insisting that it was his own, and the question where he had obtained it was a personal matter. He further said that he had learned the trick from a former Senator of 'saving money and putting it away and keeping it under cover'; that this Senator 'was a past master in not letting his right hand know what his left hand done,

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and he dealt absolutely in cash. The 'long green' was the issue.'

Mr. Vare was nominated and elected at the succeeding November election. The special committee thereafter submitted a partial report in respect of Cunningham's refusal to testify. In January, 1927, Vare's election having been contested by William B. Wilson upon the ground of fraud and unlawful practices in connection with the nomination and election, the Senate adopted a resolution further authorizing the special committee to take possession of ballot boxes, tally sheets, etc., and to preserve evidence in respect of the charges made by Wilson. In February, 1927, Cunningham was recalled, and, questions previously put to him having been repeated, he again refused to give the information called for, as he had done at the first hearing.

At the opening of Congress in December, 1927, the Senate adopted an additional resolution, reciting among other things, that there were numerous instances of fraud and corruption in behalf of Vare's candidacy, and that there had been expended in his behalf at the primary election a sum exceeding $785,000. Expenditure of such a large sum of money was declared to be contrary to sound public policy, and the special committee was directed to inquire into the claim of Vare to a seat in the Senate, to take evidence in respect thereto, and report to the Senate; in the meantime, it was resolved, Vare should be denied a seat in the Senate. By a subsequent resolution, the committee on privileges and elections was directed to hear and determine the contest between Vare and Wilson.

The special committee, in March, 1928, reported its proceedings, including testimony given by Cunningham, recited his refusal to give information in response to questions, as hereinbefore set forth, and recommended that he be adjudged in contempt of the committee and of the Senate. The Senate, however, did not adopt the recom-

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mendation of the committee, but, instead, passed a resolution reciting Cunningham's contumacy and instructing the President to issue his warrant commanding the sergeant-at-arms or his deputy to take the body of Cunningham into custody, and to bring him before the bar of the Senate, 'then and there or elsewhere, as it may direct, to answer such questions pertinent to the matter under inquiry as the Senate, through its said committee, or the President of the Senate, may propound, and to keep the said Thomas W. Cunningham in custody to await further order of the Senate.' The warrant was issued and executed, and thereupon Cunningham brought a habeas corpus proceeding in the federal District Court for the Eastern District of Pennsylvania.

In his petition for the writ of habeas corpus, Cunningham averred that he was arrested under the warrant by reason of an alleged contempt, and that, by reason of his refusal to disclose his private and individual affairs to the special committee, the Senate had illegally and without authority adjudged him to be in contempt and had issued its warrant accordingly. A return was made to the writ, denying that the Senate had adjudged Cunningham in contempt and, in substance, averring that the warrant by which he was held simply required that he be brought to the bar of the Senate to answer questions pertaining to the matter under inquiry, etc.

The District Court, to which the return was made, after a hearing and consideration of written briefs and oral arguments, entered an order discharging the writ and remanding Cunningham to the custody of the sergeant-at-arms. A written opinion was handed down by Judge Dickinson, sustaining the power of the Senate to compel the attendance of witnesses under the circumstances above set forth, and holding that the Senate had not proceeded against Cunningham for a contempt, but by its resolution had required his arrest and production at the bar of the

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Senate, simply to answer questions pertinent to the matter under inquiry. United States ex rel. Cunningham v. Barry, 25 F.(2d) 733.

Upon appeal, the Circuit Court of Appeals reversed the District Court, holding that the arrest was in reality one for contempt, but, if it should be regarded as an arrest to procure Cunningham's attendance as a witness, it was void, because a subpoena to attend at the bar of the Senate had not previously been served upon him, and that this was a necessary prerequisite to the issue of an attachment. Treating the proceeding as one for contempt, that court held that the information sought to be elicited, and which Cunningham refused to give, was not pertinent to the inquiry authorized to be made by the committee, and that Cunningham was justified in declining to answer the questions in respect thereof. Circuit Judge Woolley dissented, substantially adopting the view of the District Court. 29 F.(2d) 817.

The correct interpretation of the Senate's action is that given by the District Judge and by Judge Woolley. It is true the special committee, in its report to the Senate, recited Cunningham's contumacy and recommended that he be adjudged in contempt, but the resolution passed by the Senate makes it entirely plain that this recommendation of the committee was not followed. The Senate resolution, after a recital of Cunningham's refusal to answer certain questions, directs that he be attached and brought before the bar of the Senate, not to show cause why he should not be punished for contempt, but 'to answer such questions pertinent to the matter under inquiry as the Senate through its said committee or the President of the Senate may propound. * * *' We must accept this unequivocal language as expressing the purpose of the Senate to elicit testimony in response to questions to be propounded at the bar of the Senate, and the question whether the information sought to be elicited

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from Cunningham by the committee was pertinent to the inquiry which the committee had been directed to make may be put aside as immaterial.

It results that the following are the sole questions here for determination: (1) Whether the Senate was engaged in an inquiry which it had constitutional power to make; (2) if so, whether that body had power to bring Cuningham to its bar as a witness by means of a warrant of arrest; and (3) whether, as a necessary prerequisite to the issue of such warrant of arrest, a subpoena should first have been served and disobeyed.

First. Generally, the Senate is a legislative body, exercising in connection with the House only the power to make laws. But it has had conferred upon it by the Constitution certain powers, which are not legislative, but judicial, in character. Among these is the power to judge of the elections, returns, and qualifications of its own members. Article 1, § 5, cl. 1. 'That power carries with it authority to take such steps as may be appropriate and necessary to secure information upon which to decide concerning elections.' Reed v. County Commissioners, 277 U. S. 376, 388, 48 S. Ct. 531, 72 L. Ed. 924. Exercise of the power necessarily involves the ascertainment of facts, the attendance of witnesses, the examination of such witnesses, with the power to compel them to answer pertinent questions, to determine the facts and apply the appropriate rules of law, and, finally, to render a judgment which is beyond the authority of any other tribunal to review. In exercising this power, the Senate may, of course, devolve upon a committee of its members the authority to investigate and report; and this is the general, if not the uniform, practice. When evidence is taken by a committee, the pertinency of questions propounded must be determined by reference to the scope of the authority vested in...