Grain v. Daugherty, 28

Citation47 S.Ct. 319,273 U.S. 135,71 L.Ed. 580
Decision Date17 January 1927
Docket NumberNo. 28,28
PartiesMcGRAIN, Deputy Sergent at Arms of the United States Senate, v. DAUGHERTY
CourtUnited States Supreme Court

[Syllabus from pages 135-137 intentionally omitted] The Attorney General and Mr. George W. Wickersham, of New York City, for appellant.

[Argument of Counsel from pages 137-144 intentionally omitted] Messrs. Arthur I. Vorys, of Columbus, Ohio, and John P. Phillips, of Chillicothe, Ohio, for appellee.

[Argument of Counsel from pages 144-150 intentionally omitted]

Page 150

Mr. Justice VAN DEVANTER delivered the opinion of the Court.

This is an appeal from the final order in a proceeding in habeas corpus discharging a recusant witness held in custody under process of attachment issued from the United States Senate in the course of an investigation which it was making of the administration of the Department of Justice. A full statement of the case is necessary.

The Department of Justice is one of the great executive departments established by congressional enactment, and has charge, among other things, of the initiation and prosecution of all suits, civil and criminal, which may be brought in the right and name of the United States to compel obedience or punish disobedience to its laws, to recover property obtained from it by unlawful or fraudulent means, or to safeguard its rights in other respects, and also of the assertion and protection of its interests, when it or its officers are sued by others. The Attorney General is the head of the department, and its functions are all to be exercised under his supervision and direction.1

Harry M. Daugherty became the Attorney General March 5, 1921, and held that office until March 28, 1924,

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when he resigned. Late in that period various charges of misfeasance and nonfeasance in the Department of Justice after he became its supervising head were brought to the attention of the Senate by individual senators and made the basis of an insistent demand that the department be investigated to the end that the practices and deficiencies which, according to the charges, were operating to prevent or impair its right administration might be definitely ascertained and that appropriate and effective measures might be taken to remedy or eliminate the evil. The Senate regarded the charges as grave and requiring legislative attention and action. Accordingly it formulated, passed, and invited the House of Representatives to pass (and that body did pass) two measures taking important litigation then in immediate contemplation out of the control of the Department of Justice and placing the same in charge of special counsel to be appointed by the President, 2 and also adopted a resolution authorizing and directing a select committee of five senators—

'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 co-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

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to prosecute properly, efficiently, and promptly, and to 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.'

The resolution also authorized the committee to send for books and papers, to subpoena witnesses, to administer oaths, and to sit at such times and places as it might deem advisable.3

In the course of the investigation the committee issued and caused to be duly served on Mally S. Daugherty-who was a brother of Harry M. Daugherty and president of the Midland National Bank of Washington Court House, Ohio-a subpoena commanding him to appear before the committee for the purpose of giving testimony bearing on the subject under investigation, and to bring with him the 'deposit ledgers 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 amounts of $25,000 or over during above period.' The witness failed to appear.

A little later in the course of the investigation the committee issued and caused to be duly served on the same witness another subpoena, commanding him to appear before it for the purpose of giving testimony relating to the subject under consideration; nothing being

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said in this subpoena about bringing records, books, or papers. The witness again failed to appear, and no excuse was offered by him for either failure.

The committee then made a report to the Senate stating that the subpoenas had been issued, that according to the officer's returns-copies of which accompanied the report-the witness was personally served, and that he had failed and refused to appear.4 After a reading of the report, the Senate adopted a resolution5 following these facts and proceedings as follows:

'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 may 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, and 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.'

It will be observed from the terms of the resolution that the warrant was to be issued in furtherance of the effort be obtain the personal testimony of the witness, and, like the second subpoena, was not intended to exact from him the production of the various records, books, and papers named in the first subpoena.

The warrant was issued agreeably to the resolution and was addressed simply to the sergeant at arms. That

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officer, on receiving the warrant, indorsed thereon a direction that it be executed by John J. McGrain, already his deputy, and delivered it to him for execution.

The deputy, proceeding under the warrant, took the witness into custody at Cincinnati, Ohio, with the purpose of bringing him before the bar of the Senate as commanded, whereupon the witness petitioned the federal District Court in Cincinnati for a writ of habeas corpus. The writ was granted and the deputy made due return, setting forth the warrant and the cause of the detention. After a hearing the court held the attachment and detention unlawful and discharged the witness, the decision being put on the ground that the Senate, in directing the investigation and in ordering the attachment, exceeded its powers under the Constitution. 299 F. 620. The deputy prayed and was allowed a direct appeal to this court under section 238 of the Judicial Code (Comp. St. § 1215) as then existing.

We have given the case earnest and prolonged consideration because the principal questions involved are of unusual importance and delicacy. They are (a) whether the Senate-or the House of Representatives, both being on the same plane in this regard-has power, through its own process, to compel a private individual to appear before it or one of its committees and give testimony needed to enable it efficiently to exercise a legislative function belonging to it under the Constitution; and (b) whether it sufficiently appears that the process was being employed in this instance to obtain testimony for that purpose.

Other questions are presented, which in regular course should be taken up first.

The witness challenges the authority of the deputy to execute the warrant on two grounds-that there was no provision of law for a deputy, and that, even if there were such a provision, a deputy could not execute the

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warrant because it was addressed simply to the sergeant at arms. We are of opinion that neither ground is tenable.

The Senate adopted in 1889 and has retained ever since a standing order declaring that the sergeant at arms may appoint deputies 'to serve process or perform other duties' in his stead, that they shall be 'officers of the Senate,' and that acts done and returns made by them 'shall have like effect and be of the same validity as if performed or made by the sergeant at arms in person.'6 In actual practice the Senate has given full effect to the order, and Congress has sanctioned the practice under it by recognizing the deputies-sometimes called assistants-as officers of the Senate, by fixing their compensation, and by making appropriations to pay them.7 Thus there was ample provision of law for a deputy.

The fact that the warrant was addressed simply to the sergeant at arms is not of special significance. His authority was not to be tesed by the warrant alone. Other criteria were to be considered. The standing order and the resolution under which the warrant was...

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