MacCracken v. Jurney, 6166.
| Citation | 72 F.2d 560 |
| Decision Date | 09 July 1934 |
| Docket Number | No. 6166.,6166. |
| Parties | MacCRACKEN v. JURNEY. |
| Court | United States Courts of Appeals. United States Court of Appeals (District of Columbia) |
Frank J. Hogan and Edmund L. Jones, both of Washington, D. C., for appellant.
Leslie C. Garnett, U. S. Atty., and Harry L. Underwood, Asst. U. S. Atty., both of Washington, D. C., for appellee.
Before MARTIN, Chief Justice, and ROBB, VAN ORSDEL, HITZ, and GRONER, Associate Justices.
Appeal from an order in the Supreme Court of the District, on a petition for writ of habeas corpus filed by appellant (hereinafter designated as petitioner) and the demurrer of appellee (hereinafter designated as respondent) thereto, dismissing the petition and remanding petitioner to the custody of respondent.
Since respondent demurred to the petition, the material facts there stated must be taken as true. They are substantially as follows: During the second session of the Seventy-Second Congress the Senate of the United States on February 25, 1933, adopted Senate Resolution 349, which authorized an investigation of all existing contracts for the carriage of air and ocean mail. Petitioner is a lawyer and at various times during the past ten years had been employed as such by individuals and corporations engaged in the operations of airplanes over designated routes and otherwise, and had rendered to his clients professional services, some of which related to air mail contracts, but none of which related to ocean mail contracts.
On January 31, 1934, there was served on petitioner a subpœna duces tecum, issued by the committee of the Senate appointed under the aforesaid Senate Resolution 349, commanding petitioner to appear before the committee, "instanter, at 12:30 p. m.," and to "bring all books of account, bank pass books, canceled checks, check stubs, deposit slips, papers, memorandums, correspondence, maps, copies of telegrams relating to air-mail and ocean-mail contracts."
Under the filing system in petitioner's office in Washington, the file folders containing the correspondence and documents relating to matters in which petitioner was employed by air mail contractors, included papers relating to other matters.
In compliance with the subpœna, petitioner appeared before the committee on January 31, 1934, and advised the committee that he was ready to produce all papers called for in the subpœna, excepting only communications between himself, as attorney, and his clients; that, as petitioner understood the law, communications, whether oral or written, between attorney and client relating to the subject-matter of the attorney's employment are privileged; and that it is not within the power of the attorney to waive such privilege, which belongs exclusively to the client. Thereupon petitioner was sworn as a witness and testified, in substance, inter alia, to the names of air mail operators whom he had represented as attorney; that he had never represented any one having an ocean mail contract; and testified to the character of services rendered by him to his clients; and to the character of the communications between himself and his clients which he considered privileged.
Thereupon the chairman of the committee inquired of petitioner if he would telegraph to his clients on the subject of the committee's subpœna. Agreeing to this suggestion, petitioner prepared a telegram to each of his clients and submitted the same to the chairman of the committee, who gave his approval thereto. These telegrams petitioner sent forthwith on January 31 to each and every client who at any time, so far as petitioner's knowledge extended, had any air mail contract or contracts. These telegrams requested the clients to advise petitioner by wire if they would waive their privilege and authorize him to make communications between them, as attorney and client, available to the Senate committee. Thereupon petitioner, as promptly as practicable, produced and made available to the committee all papers of every kind and description in his possession, power, or control, in any way relating to air mail contracts, except those alleged to be embraced within his clients' privilege.
On February 1st petitioner informed the committee that he had been advised by telegraph that certain of his clients had waived the privilege attached to their communications between them and petitioner, and on that date petitioner produced to the committee all papers of those clients relating to air mail contracts. On the same day, also, petitioner addressed and sent to clients who had not responded to his request telegrams indicating the necessity of immediate reply regarding the waiver of privilege, as the committee had called upon him to give that information the next morning. On the following day (February 2, 1934) petitioner was again called before the committee under the aforesaid subpœna and testified to the receipt of waivers from all but four of his air mail clients, and that all papers of those clients who had waived their privilege were immediately available to the committee. Petitioner requested additional time to obtain waivers from the four remaining clients. This request was refused; the committee ruling that the privilege asserted by petitioner did not relieve him of the duty of producing all papers and documents required by the subpœna.
Petitioner insisting that he could not waive the privilege attached to the communications passing between him, as an attorney, and his clients without the consent of the clients, the matter was on February 2d reported to the Senate by the chairman of the committee (Senate Report No. 254, 2d Sess. 73d Cong.). The Senate thereupon passed Senate Resolution 169, 73d Cong., 2d Sess., which directed the issuance of a warrant by the President of the Senate to take petitioner into custody and produce him before the bar of the Senate, and commanding petitioner to "bring with him the correspondence, memoranda, books, files, and records referred to and then and there to answer such questions pertinent to the matter under inquiry with reference to facts regarding correspondence, memoranda, books, and files as the Senate may propound," and to keep petitioner in custody to await the further action of the Senate. The resolution affirmed that the testimony of the petitioner and the production of correspondence, records, files, and books were material and necessary in order that the committee (select committee, elected pursuant to Senate Resolution 349, 72d Cong., 2d Sess.) might properly execute the functions imposed upon it "and obtain information necessary as a basis for such legislation as the Senate may deem necessary concerning ocean- and air-mail contracts."
Thereupon the warrant was issued and petitioner was arrested by respondent (Sergeant at Arms of the Senate) on the afternoon of February 2, 1934. The Senate not then being in session, petitioner was paroled in the custody of his counsel, to appear at the bar of the Senate in the custody of respondent at noon on February 5, 1934.
Shortly prior to the service of the warrant on February 2d, petitioner received waivers from all his remaining clients who had not responded to his telegrams. Promptly, on receiving such waivers, petitioner notified the chairman of the committee, and made available to the committee under the command of its subpœna all papers in his possession relating to air mail contracts.
One of the addressees of petitioner's telegrams of January 31, 1934, was L. H. Brittin, vice president of Northwest Airways, Inc., by which company petitioner was employed from March to November, 1933. On February 1, 1934, Brittin called at the office of the law firm of MacCracken & Lee in Washington, of which petitioner was senior partner. Subsequent to the issuance of the subpœna of the Senate committee petitioner had not seen Brittin nor had there been any communication between him and petitioner. Upon the occasion of his call he saw petitioner's partner, and advised Lee that he had received petitioner's telegram; that, as Lee knew, he, Brittin, had on occasions during the summer of 1933 been permitted as an accommodation to use Lee's office, and that while there in the summer he had dictated and had typed letters of an entirely personal nature, having no relation to air mail contracts, copies of which letters he had permitted to remain in the folder of the firm's files in which their papers relating to the business of the Northwest Airways, Inc., were contained; and that he desired to remove from the files these personal papers. Thereupon Lee handed to Brittin the folder referred to, and in the presence of Lee he removed therefrom five or six papers. Lee did not see the contents of these papers, but was advised by Brittin that they did not relate to air mail contracts and were exclusively personal to himself. Petitioner had no knowledge whatever either of Brittin's call or what had occurred during that call until after Brittin's departure. On February 3, 1934, Brittin appeared as a witness before the Senate committee, corroborated petitioner's statement, and further testified that the letters he had removed were purely personal and had "no relation whatever to the matters under consideration" by the committee, and that he had destroyed them. Petitioner testified fully before the Senate committee on February 2d concerning his lack of knowledge of the taking and destruction of papers by Brittin.
Another addressee of petitioner's telegrams of January 31st was Harris M. Hanshue, president of the Western Air Express, New York City, by which company petitioner was employed as attorney from December 1, 1929, to September 1, 1932. On February 1, 1934, Hanshue by telephone informed petitioner that before his company could make its decision on the subject of the waiver, he desired an opportunity to look over the papers contained in petitioner's files and also to examine certain personal papers, not relating...
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