Ex parte Daugherty

• Decision Date: 31 May 1924
• Citation: 299 F. 620
• Parties: Ex parte DAUGHERTY.
• Court: U.S. District Court — Southern District of Ohio

299 F. 620

Ex parte DAUGHERTY.

United States District Court, S.D. Ohio, Western Division.

May 31, 1924

John P Phillips, of Chillicothe, Ohio, John Logan and Bush &amp Clyburn, all of Washington C.H., Ohio, and A. I. Vorys, L. F Sater, E. L. Pease, and W. I. Vorys, all of Columbus, Ohio for petitioner.

Benson W. Hough, U.S. Atty., of Columbus, Ohio, and Wm. T. Chantland, Asst. Atty. Gen., for respondent.

ANDREW M. J. COCHRAN, District Judge for the Eastern District of Kentucky, sitting by designation in the Southern District of Ohio, Western Division.

By the designation of myself to hear this cause, there has been thrust upon me the inescapable duty of passing upon the validity of certain action of the United States Senate. This cause involves a controversy between two individuals. It has come about by one of them restraining the other of his liberty and the latter applying to this court for discharge therefrom. The legality of the restraint depends upon the validity of such action. On April 28, 1924, Mally S Daugherty, a citizen of Ohio, residing at Washington Courthouse, in this district, and president of the Midland National Bank, engaged in business at that place, was arrested and taken into custody at the federal building in this city by John J. McGrain. McGrain, in so doing, acted under a warrant of the United States Senate, dated April 26, 1924, directed to the sergeant at arms thereof, commanding him to arrest Daugherty and bring him to its bar in pursuance to a resolution that day agreed to by it, which was set forth in full therein. The warrant bore an indorsement, signed by that official, appointing and employing McGrain to serve it. Thereupon Daugherty applied for and obtained from this court a writ of habeas corpus, directed to McGrain, commanding him to have the petitioner's body before it, with the cause of such imprisonment and detention, which has been done. The cause assigned therefor is such warrant. It is the action of the Senate in causing this warrant to be issued whose validity is involved here. Its validity depends upon the question as to whether, in taking such action, that body exceeded its powers. In disposing of this question I will first set forth the proceedings which led up to the issuance of the warrant, then interpret and appraise the decisions of the Supreme Court which are thought to be pertinent thereto, and, finally, come to close quarters with and determine it.

1. On March 1, 1924, the United States Senate adopted the following resolution:

'Resolved, that a committee of five Senators, consisting of three members of the majority and two of the minority, be authorized and directed to investigate circumstances and facts, and report the same to the Senate, concerning the alleged failure of Harry M. Daugherty, Attorney General of the United States, to prosecute properly violators of the Sherman Anti-Trust Act and the Clayton Act against monopolies and unlawful restraint of trade; the alleged neglect and failure of the said Harry M. Daugherty, Attorney General of the United States, to arrest and prosecute Albert B. Fall, Harry F. Sinclair, E. L. Doheny, C. R. Forbes, and their conspirators in defrauding the government; as well as the alleged neglect and failure of the said Attorney General to arrest and prosecute many others for violations of federal statutes, and his alleged failure to prosecute properly, efficiently, and promptly, and defend all manner of civil and criminal actions wherein the government of the United States is interested as a party plaintiff or defendant. And said committee is further directed to inquire into, investigate, and report to the Senate the activities of the said Harry M. Daugherty, Attorney General, and any of his assistants in the Department of Justice, which would in any manner tend to impair their efficiency or influence as representatives of the government of the United States. That said committee above referred to and the chairman thereof shall be elected by the Senate of the United States.

'Resolved, further, that in pursuance of the purposes of this resolution said committee or any member thereof be and hereby is authorized, during the Sixty-Eighth Congress to send for persons, books and papers, to administer oaths, and to employ stenographic assistance at a cost not to exceed 25 cents per hundred words, to report such hearings, as may be had in connection herewith, the expenses thereof to be paid out of the contingent fund of the Senate, and that the committee, or any subcommittee thereof, may sit during the sessions or recesses of the Senate.'

The committee called for thereby was elected. On March 24, 1924, the petitioner was summoned by subpoena to appear before such committee at its room, 105 Senate Office Building, Washington, D.C., to testify as to what he might know relative to the subject-matter under consideration by it, and to bring with him deposit ledger of the Midland National Bank since November 1, 1920; also note files and transcript of owners of every safety vault; also records of income drafts; also records of any individual account or accounts showing withdrawals of $25,000 or over during that period. Daugherty refused to comply with this summons. On April 11, 1924, two of the members of the committee, Smith W. Brookhart and Burton K. Wheeler, visited Washington Courthouse and there issued and caused to be served on Daugherty a subpoena commanding him to appear before the select committee on investigation of Department of Justice of the United States at their committee room, 12 Cherry Hotel, Washington Courthouse, to testify as to what he might know relative to the subject-matters under consideration by that committee. Daugherty also refused to comply with this summons. The committee reported these refusals of Daugherty to the Senate, and on April 26, 1924, that body adopted the following resolution: 'Whereas, the select committee of the Senate, elected pursuant to Senate Resolution 157, Sixty-Eighth Congress, first session, has submitted a report to the Senate; and

'Whereas, it appears from such report that M. S. Daugherty, as president of the Midland National Bank, Washington Courthouse, Ohio, was on March 22, 1924, duly served with a subpoena to appear forthwith before such committee in Washington, District of Columbia, and then and there to testify relative to subject-matters, and to produce specified files, records, and books, pertinent to the matter under inquiry, and was on April 11, 1924, duly served with a subpoena to appear forthwith before the committee in Washington Courthouse, Ohio, and then and there to testify relative to subject-matters pertinent to the matter under inquiry; and

'Whereas, it appears from such report that the said M. S. Daugherty has, in disobedience of such subpoenas, failed so to appear or answer, or to produce such files, records, and books; and

'Whereas, 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: Therefore be it

'Resolved, that the President of the Senate pro tempore issue his warrant, commanding the sergeant at arms or his deputy, to take into custody the body of the said M. S. Daugherty, wherever found, to bring the said M. S. Daugherty before the bar of the Senate, then and there to answer such questions pertinent to the matter under inquiry as the Senate may order the President of the Senate pro tempore to propound, and to keep the said M. S. Daugherty in custody to await the further order of the Senate.'

This is the resolution, copied in the warrant, under which the petitioner was arrested, and it was thereunder that the warrant was issued. These proceedings constitute the sole basis and justification of the warrant and arrest. By the original resolutions, those of March 1, 1924, the committee to be elected thereunder was authorized and directed to investigate and report the circumstances and facts concerning the alleged neglect and failure of Harry M. Daugherty, then Attorney General of the United States, in performing his duties as such in four particulars, and his activities and those of any of his assistants, which would in any manner tend to impair their efficiency or influence as representatives of the government of the United States. The investigation, thus authorized, concerned the alleged shortcomings of Harry M. Daugherty, as Attorney General, in the particulars named, and such of his activities as impaired his efficiency and influence in that position, which may be characterized as wrongdoings. It concerned nothing else. It was not recited who had alleged that he had been guilty of such shortcomings, nor that it had been alleged by any one that he had been guilty of such wrongdoings. It was assumed that he had, or, at least, that it was possible that he had. The investigation thus authorized was therefore a purely personal one.

The last resolution, that of April 26, 1924, though it set forth petitioner's disobedience of the two summonses of the committee, did not authorize the issuance of a warrant for contempt because of such disobedience, but of one to bring him before the bar of the Senate to answer such questions pertinent to the matter under inquiry as the Senate might order to be propounded to him. It did not call for the production of any documents, as did the first summons of the committee. It was in this resolution, adopted after such disobedience and its report to the Senate, that for the first time any intimation was given of the purpose of the investigation. It was that the Senate might obtain information ...