Reed v. County Com'rs

• Decision Date: 12 July 1927
• Docket Number: No. 4017.,4017.
• Citation: 21 F.2d 144
• Parties: REED et al. v. COUNTY COM'RS OF DELAWARE COUNTY, PA., et al.
• Court: U.S. District Court — Western District of Pennsylvania

21 F.2d 144 (1927)

REED et al. v. COUNTY COM'RS OF DELAWARE COUNTY, PA., et al.^*

No. 4017.

District Court, E. D. Pennsylvania.

July 12, 1927.

A. B. Geary, of Chester, Pa., and Jerry C. South and William H. King, both of Washington, D. C., for petitioners.

A. J. Williams, of Media, Pa., and John E. McDonough, of Chester, Pa., opposed.

THOMPSON, District Judge.

On March 26, 1927, Jerry C. South, as the attorney and representative of a special committee of the United States Senate, claiming to act under Senate Resolutions 195 and 324 of the Sixty-Ninth Congress, brought suit by petition against the county commissioners of Delaware county, the prothonotary of Delaware county, and a justice of the peace for Delaware county, who are the custodians, under the law of Pennsylvania, of ballot boxes, ballots, return sheets, tallysheets, voters' lists, voters' check lists, ballot check lists, and registration lists, hereinafter for brevity referred to as the ballot boxes, employed and used in the said county at the general election on November 2, 1926, praying that process issue requiring the respondents to show cause why they should not deliver to him, as agent and representative, all ballot boxes used in Delaware county at the said election, to be by him delivered to the special committee of the Senate for their use in an investigation pending before them. An amended petition was subsequently filed, adding as petitioners Senators James A. Reed, Charles L. McNary, William H. King, and Robert M. La Follette, Jr., alleging that they constitute such special committee, acting under authority of the said resolutions.

Senate Resolution 195, agreed to by the Senate on May 19, 1926, authorizes the President of the Senate to appoint a special select committee to make investigation into the means used to influence the nomination of any person as a candidate for membership of the United States Senate.

"Said committee is hereby empowered to sit and act at such time or times and at such place or places as it may deem necessary, to require by subpœna or otherwise the attendance of witnesses, the production of books, papers, and documents, and to do such other acts as may be necessary in the matter of said investigation.

"The chairman of the committee or any member thereof may administer oaths to witnesses. Every person who, having been summoned as a witness by authority of said committee willfully makes default, or who, having appeared, refuses to answer any question pertinent to the investigation heretofore authorized, shall be held to the penalties provided by section 102 of the Revised Statutes of the United States.

"Said committee shall promptly report to the Senate the facts by it ascertained."

The Senators above named and Senator Goff of West Virginia were appointed members of the committee authorized under the said resolution. Subsequently Senator Goff resigned from the committee, and the four Senators above named continued to act.

After the November election in 1926 in Pennsylvania, at which William S. Vare and William P. Wilson were opposing candidates for a seat in the United States Senate, and William S. Vare was declared duly elected, Mr. Wilson presented his petition to the Senate, contesting the election of Mr. Vare, and on January 11, 1927, the Senate agreed to a resolution authorizing the select committee on investigation of expenditures in senatorial primaries and elections to take and preserve evidence in connection with the election of a Senator from Pennsylvania on November 2, 1926, being Senate Resolution 324.

"(1) To take possession in the presence of the said William S. Vare or his representative if the said William S. Vare desires to be present or to have a representative present, and preserve all ballot boxes and other containers of ballots, ballots, return sheets, voters' check lists, tally sheets, registration lists and other records, books and documents used in said senatorial election held in the state of Pennsylvania on the 2d day of November, 1926.

"(2) To take and preserve all evidence as to the various matters alleged in said petition, including any alleged fraud, irregularity, unlawful expenditure of money, and intimidation of voters or other acts or facts affecting the result of said election.

"(3) That said committee is hereby vested with all powers of procedure with respect to the subject-matter of this resolution that said committee possesses under resolution numbered 195, Sixty-Ninth Congress, first session, with respect to the subject-matter of that resolution.

"(4) That the sergeant at arms of the Senate and his deputies are directed to attend the said special committee and to execute its directions. That the said special committee may appoint subcommittees of one or more members with power and authority to act for the full committee in taking possession of evidence and in the subpœnaing of witnesses and taking testimony."

Thereafter, on February 17, Senator Reed, chairman of the committee created under Resolution 195, and having further authority conferred upon it by Resolution 324, submitted Senate Resolution 364, which is as follows:

"Resolved, that Senate Resolutions numbered 195, 227, and 258 of the Sixty-Ninth Congress, first session, and Senate Resolution numbered 324 of the Sixty-Ninth Congress, second session, be, and they hereby are, continued in force during the interim between the Sixty-Ninth Congress and the Seventieth Congress and thereafter until the 30th day of December, 1927.

"That the special committee created pursuant to Senate Resolution numbered 195 of the Sixty-Ninth Congress, first session, is authorized in its discretion, and/or at the request of either William S. Vare or William B. Wilson, to open any or all ballot boxes and examine and tabulate any or all ballots and scrutinize all books, papers, and documents which are now in its possession, or any that shall come into its possession, concerning the general election held in the state of Pennsylvania on the 2d day of November, 1926."

The resolution was ordered to the calendar, but failed of being voted upon for adoption before the adjournment of Congress on March 4.

It is alleged in the petition that on March 19, 1927, the committee appointed Mr. South as its representative and attorney to take into his possession and seal all ballot boxes used at the said election, and to securely keep them in some convenient place in the city of Washington for the use of the special committee authorized under Resolution 324 to investigate the said election; that the respondents, upon demand, refused to deliver any part of the ballot boxes demanded.

While the proceeding was commenced by petition, and not by bill, although the petitioners are seeking an equitable remedy by mandatory injunction, no objections have been raised to the failure on the part of the petitioners to conform to the equity practice, and the informality of their pleading and of the process issued may be regarded as waived.

The several respondents answered, denying the jurisdiction of the court, denying that the petition sets forth any ground for equitable relief, and denying the authority of the committee to vest in Mr. South the right and power to demand and take into his possession the ballot boxes and other election paraphernalia specified. The answer denies the authority of the committee to act, upon the ground that the life of the committee ceased at the end of the Sixty-Ninth Congress on March 4, 1927; that the subject-matter of Resolution 324 was superseded as the result of the action of Senator Robinson of Arkansas, who, during the closing days of the session, presented Mr. Wilson's petition of contest to the Senate and requested that it be received, printed in the Record, and referred to the committee on privileges and elections, a standing committee of the Senate under its rules, whereupon the Vice President announced that "without objection the petition will be received, printed in the Record, and referred to the committee on privileges and elections."

Without objection on the part of the petitioners, the petition of James F. Woodward to intervene as a party respondent, was granted. He intervened as a citizen and taxpayer, and, upon the ground that he had a state-wide interest in the ballots cast at the November election, for the reason that his name appeared upon every ballot for the office of secretary of internal affairs and that he has been returned as elected to that office. As Mr. Woodward was inducted into office on the first Monday of May, 1927, and the period for contesting his election under the laws of Pennsylvania has expired, he has no further interest, except as a citizen and taxpayer.

Motions to dismiss on the ground of want of jurisdiction were filed by all of the respondents, setting up substantially the same grounds of objection to the proceedings as set up in the answers. The petitioners contend that the court has jurisdiction under section 24 of the Judicial Code, which reads as follows:

"Section 24. The District Courts shall have original jurisdiction as follows: * * *

"First. Of all suits of a civil nature, at common law or in equity, brought by the United States, or by any officer thereof, authorized by law to sue."

Comp. St. § 991.

It is frankly conceded that the petitioners cannot hope for the relief prayed for by mandamus. The writ of mandamus may issue as auxiliary to the exercise of jurisdiction conferred under the Constitution by Congress, but not as an exercise of original jurisdiction. See Riggs v. Johnson County, 6 Wall. 166, 18 L. Ed. 768; Lower v. United States, 91 U. S. 537, 23 L. Ed. 420. In re Massachusetts, 197 U. S. 482, 25 S. Ct. 512, 49 L. Ed. 845. Knapp v. Lake Shore & M. S. R. Co., 197 U. S. 536, 25 S. Ct. 538, 49 L. Ed. 870.

The petitioners contend, however, that the present suit is a suit in equity, and that the court has jurisdiction upon the broad ground that jurisdiction...