306 F.2d 270 (D.C. Cir. 1962), 16604, Tobin v. United States

Docket Nº:16604.
Citation:306 F.2d 270
Party Name:Austin J. TOBIN, Appellant, v. UNITED STATES of America, Appellee.
Case Date:June 07, 1962
Court:United States Courts of Appeals, Court of Appeals for the District of Columbia Circuit
 
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Page 270

306 F.2d 270 (D.C. Cir. 1962)

Austin J. TOBIN, Appellant,

v.

UNITED STATES of America, Appellee.

No. 16604.

United States Court of Appeals, District of Columbia Circuit.

June 7, 1962

         Argued Feb. 6, 1962.

          Petition for Rehearing En Banc Denied July 2, 1962.

          Certiorari Denied Nov. 13, 1962.

         Mr. Thomas E. Dewey, New York City, with whom Messrs. Everett I. Willis, Lino A. Graglia and Sidney Goldstein, New York City, were on the brief, for appellant.

         Mr. William Hitz, Asst. U.S. Atty., with whom Messrs. David C. Acheson, U.S. Atty., and Nathan J. Paulson, Asst. U.S. Atty., were on the brief, for appellee. Mr. Charles T. Duncan, Principal Asst. U.S. Atty., also entered an appearance for appellee.

         Mr. Daniel M. Cohen, New York City, of the bar of the Court of Appeals of New York, pro hac vice, by special leave of court, with whom Mr. Jerome M. Alper, Washington, D.C., was on the brief,

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for State of New York, as amicus curiae, urging reversal.

         Mr. Theodore I. Botter, Trenton, N.J., of the bar of the Supreme Court of New Jersey, pro hac vice, by special leave of court, for State of New Jersey as amicus curiae. Mr. William F. Tompkins, Newark, N.J., was on the brief for State of New Jersey, as amicus curiae, urging reversal.

         Mr. J. Raymond Clark, Philadelphia, Pa., filed a brief on behalf of the New York Chamber of Commerce, as amicus curiae, urging reversal.

         Mr. Jerome M. Alper, Washington, D.C., filed a brief on behalf of the State of Delaware, as amicus curiae, urging reversal.

         Mr. Jerome M. Alper, Washington, D.C., filed a brief on behalf of the State of Alabama, and others, as amici curiae, urging reversal.

         Before WILBUR K. MILLER, Chief Judge, and DANAHER and BASTIAN, Circuit judges.

         BASTIAN, Circuit Judge.

         Austin J. Tobin, the Executive Director of the Port of New York Authority, was charged by information and convicted in the District Court of criminal contempt of Congress, under 2 U.S.C.A. § 192, for refusing to produce certain documents called for by a subpoena issued by Subcommittee No. 5 of the Committee on the Judiciary of the United States House of Representatives.

         The Port of New York Authority is a bi-state agency established in 1921 and 1922 by compacts between the States of New York and New Jersey to provide for the efficient administration of the New York harbor, which is divided geographically between the two states. Pursuant to the compact clause of the Constitution, 1 Congress consented to the compacts but expressly retained, among other matters, 'the right to alter, amend or repeal' its resolutions of approval. Over the years, the Port Authority has been remarkably successful in achieving its goals. As of 1959, it had investments of nearly one billion dollars and gross annual operating revenue in excess of one hundred million dollars.

         In February of 1960, the Judiciary Committee initiated an investigation of the Authority on an informal basis. The Authority cooperated with the Committee investigators except as to disclosing certain documents alleged to relate exclusively to the internal administration of the Authority. After this refusal events moved swiftly to a climax.

         On June 1, 1960, the Chairman of the Committee obtained from the House subpoena power in connection with matters 'involving the activities and operations of interstate compacts.' What little floor discussion there was preceding this grant of subpoena power was not very enlightening; it certainly provided no lucid analysis of what was soon to follow. On June 8, 1960, Subcommittee No. 5 of the Judiciary Committee instituted a formal inquiry into the Authority.

         Appellant conferred with the Board of Commissioners of the Authority, as well as with the Governors of both New York and New Jersey, and the consensus of their opinion was that the investigation being attempted was too broad to be valid. The Subcommittee was informed of their objections and the reasons therefor. Discounting these objections, the Subcommittee issued the subpoena in question. Appellant requested postponement of the return date of the subpoena in order to give the Governors an opportunity to meet with the Subcommittee and discuss their objections but the Subcommittee refused the postponement.

         After being denied the opportunity to appear before the Subcommittee, the Governors wrote identical letters to their respective representatives on the Board of Commissioners of the Authority, instructing

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them to direct appellant not to comply with the subpoena. The Board of Commissioners so directed appellant on June 27, 1960. Two days later, on June 29, 1960, the Subcommittee met to receive the return of the subpoena. It was against this background that appellant refused to comply with the demands of the subpoena 2 and was ruled in default by the Chairman of the Subcommittee. Thereafter, the Subcommittee recommended to the full Committee that appellant be cited by the House for contempt. This recommendation was adopted by the Judiciary Committee, two members dissenting, and subsequently by the House itself. Charged by information, appellant waived his right to jury trial and was convicted of contempt of Congress by District Judge Youngdahl. 3

         Appellant advances several arguments in support of the position that his conviction cannot stand. For present purposes, to illustrate the constitutional issues we would have to decide in order to affirm the conviction, we list but two of his arguments:

         1. That Congress does not have the power, under the compact clause of the Constitution, to 'alter, amend or repeal' its consent to an interstate compact, which was the stated purpose of the Subcommittee's investigation.

         2. That 'the subpoena issued by the Subcommittee, demanding documents relating to the internal administration of the Port Authority which the Governors of New York and New Jersey ordered appellant not to produce, (was) an unconstitutional invasion of powers reserved to the States under the Tenth Amendment to the Constitution.'

          Because of the view we take of this case, appellant's...

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