Seymour v. United States

• Citation: 77 F.2d 577,99 ALR 880
• Decision Date: 22 April 1935
• Docket Number: No. 10113.,10113.
• Parties: SEYMOUR v. UNITED STATES.
• Court: United States Courts of Appeals. United States Court of Appeals (8th Circuit)

99 ALR 880, 77 F.2d 577 (1935)

SEYMOUR v. UNITED STATES.

No. 10113.

Circuit Court of Appeals, Eighth Circuit.

April 22, 1935.

William C. Dorsey, of Omaha, Neb., and Thomas S. Allen, of Lincoln, Neb., for appellant.

Charles E. Sandall, U. S. Atty., of Omaha, Neb. (Ambrose C. Epperson, Asst. U. S. Atty., of Omaha, Neb., Barlow Nye, Asst. U. S. Atty., of Lincoln, Neb., and Frederick G. Hawxby, Asst. U. S. Atty., of Omaha, Neb., on the brief), for the United States.

William E. Shuman, of North Platte, Neb., amicus curiæ.

Before STONE, SANBORN, and FARIS, Circuit Judges.

STONE, Circuit Judge.

This is an appeal from a conviction for perjury in an investigation before a subcommittee of the Senate.

On April 10, 1930, the Senate passed Resolution 215 providing a special committee to investigate campaign expenses of candidates for the United States Senate. The resolution provided that hearings might be before the committee or any subcommittee appointed by it and at such times and places ("either in the District of Columbia or elsewhere") as the committee might deem proper. The resolution provided that the chairman of the committee or any member of a subcommittee might administer oaths to witnesses. The investigations were expressly directed as to all facts concerning such campaign expenditures or promises or uses of patronage as "would not only be of public interest but which would aid the Senate in enacting any remedial legislation or in deciding any contest which might be instituted involving the right to a seat in the United States Senate."

Acting under the above resolution, Senator Nye (as a subcommittee) held a hearing at Lincoln, Neb., on July 21, 1930, for the purpose of investigating such campaign expenditures in connection with the selection of a United States Senator in Nebraska. At that hearing, appellant was sworn as a witness by Senator Nye, and testified. Certain answers given by appellant in the course of this testimony are the bases of the eight counts in this indictment, each charging perjury.

At the conclusion of the testimony, the court directed a verdict for appellant upon three counts (5, 7, and 8) and, upon motion of appellant then made, dismissed those counts. The jury found appellant guilty on each of the remaining five counts, and the court imposed one general sentence of six months' imprisonment and a fine of $100. From such judgment, this appeal is brought by appellant who presents here five claimed errors.

Adequacy of the Oath.

The first contention is that Senator Nye had no authority to administer the oath resulting in the testimony of appellant. The main argument favoring this contention is as follows: That the statute (USCA title 4, § 7) requires that "all offices attached to the seat of government shall be exercised in the District of Columbia, and not elsewhere, except as otherwise expressly provided by law"; that the Congress and its committees are within the above statutory expression "offices attached to the seat of government"; that a resolution of a single house of Congress is not a "law" as provided by the statute; that, therefore, no authority existed in the committee under Resolution 215 to act outside the District of Columbia, and hence the oath administered by Senator Nye to appellant at Lincoln was without authority.

Assuming, without examining or deciding, that the Congress and the committees of either or both houses are within the above statute, this contention is unsound because either house has the constitutional power to conduct separate investigations for proper purposes, and the Congress has no authority to limit the future exercise of that constitutional power. The power exists as "auxiliary" to its express powers, being "necessary and appropriate to make the express powers effective" (Sinclair v. United States, 279 U. S. 263, 291, 49 S. Ct. 268, 271, 73 L. Ed. 692; McGrain v. Dougherty, 273 U. S. 135, 160-176, 47 S. Ct. 319, 71 L. Ed. 580, 50 A. L. R. 1; In re Chapman, 166 U. S. 661, 671, 672, 17 S. Ct. 677, 41 L. Ed. 1154). The inability of Congress to limit the future exercise of such constitutional power is certain (Jurney v. MacCracken, 294 U. S. 125, 55 S. Ct. 375, 79 L. Ed. ___, decided Feb. 4, 1935; Reichelderfer v. Quinn, 287 U. S. 315, 318, 53 S. Ct. 177, 77 L. Ed. 331; Sinclair v. United States, 279 U. S. 263, 295, 49 S. Ct. 268, 73 L. Ed. 692; McGrain v. Daugherty, 273 U. S. 135, 172, 47 S. Ct. 319, 71 L. Ed. 580, 50 A. L. R. 1; Burton v. United States, 202 U. S. 344, 369, 26 S. Ct. 688, 50 L. Ed. 1057, 6 Ann. Cas. 362; In re Chapman, 166 U. S. 661, 671-672, 17 S. Ct. 677, 41 L. Ed. 1154, and see, for same principle applied to state Legislatures, Pierce Oil Corp. v. City of Hope, 248 U. S. 498, 501, 39 S. Ct. 172, 63 L. Ed. 381; Texas & N. O. R. R. Co. v. Miller, 221 U. S. 408, 414, 31 S. Ct. 534, 55 L. Ed. 789; Connecticut Mutual Life Ins. Co. v. Spratley, 172 U. S. 602, 621, 19 S. Ct. 308, 43 L. Ed. 569; Newton v. Mahoning County, 100 U. S. 548, 559, 25 L. Ed. 710). Resolution 215 was an appropriate method of exercising such power, and it expressly provided the methods of such exercise, one of which was that such hearings could be held outside the District of Columbia.

Materiality of the Subject of Inquiry.

The second contention is that the matter relied upon to prove appellant's answers untruthful was beyond the lawful scope of the committee's power of inquiry, and, therefore, not a "material matter" within the meaning of the perjury statute (USCA title 18, § 231) which requires that the false statement must be concerning a "material matter." The supporting argument is that the power of Congress or a committee thereof to investigate depends upon and flows from the power to legislate upon the subject investigated; that Congress has no constitutional power to legislate as to primary elections for nomination of United States Senators; and that the investigation here involved was solely concerning such a primary election. It is true that regulation of such primary elections has been declared beyond the national power under clause 1, § 4 of article 1 of the Constitution, which gives Congress control over "the times, Places and Manner of holding Elections for Senators * * *" (Newberry v. United States, 256 U. S. 232, 41 S. Ct. 469, 65 L. Ed. 913), and it is true that the inquiry here was concerned wholly with a primary election; that is, it may be conceded that Congress had no power to legislate for the purpose of regulating primary elections, such as involved in this inquiry. This leaves for inquiry that part of this contention which declares that Congress or its committees cannot investigate except as to matters which may be the subject of legislation by it. If by legislation is meant enactment of statutes, the statement is unsound (Barry v. United States ex rel. Cunningham, 279 U. S. 597, 613, 49 S. Ct. 452, 73 L. Ed. 867). The actual limitation is that congressional investigation must be confined to matters subject to action by Congress or by the house conducting the investigation. Congress and the separate houses have powers outside the enactment of statutes. Clause 5 of section 2 of article 1 clothes the House of Representatives with the "sole power of impeachment"; clause 6 of section 3 of article 1 gives the Senate "sole power to try all impeachments"; clause 1 of section 5 of article 1 makes each house the judge of the elections, returns and qualifications of its own members, and gives power to compel attendance of members; clause 2 of the same section gives each house power to determine its rules of proceedings, to punish and to expel members; clause 1 of section 6 of article 1 protects freedom of attendance and of speech by members of either house; all of these powers may be and some of them must be exercised by a single house, which has no power alone to enact a statute. Where the exercise of any constitutional power of Congress or of either house is involved, investigation of matters germane to the proper and intelligent exercise thereof may be subjects of investigation by such house or committees thereof under its authority (Barry v. United States ex rel. Cunningham, 279 U. S. 597, 613, 616, 49 S. Ct. 452, 73 L. Ed. 867; Kilbourn v. Thompson, 103 U. S. 168, 190, 26 L. Ed. 377), and no concurrence nor aid is necessary from the other house or elsewhere (Reed v. County Commissioners, 277 U. S. 376, 388, 48 S. Ct. 531, 72 L. Ed. 924). The limitation of power of investigation is that it must be germane to some matter concerning which the house conducting the investigation has power to act (whether such action be enactment of statutes or something else), and not a mere inquisition into the private affairs of the citizen (Jurney v. MacCracken, 294 U. S. 125, 55 S. Ct. 375, 79 L. Ed. ___, decided Feb. 4, 1935; Sinclair v. United States, 279 U. S. 263, 291-294, 49 S. Ct. 268, 73 L. Ed. 692; McGrain v. Daugherty, 273 U. S. 135, 176-180, 47 S. Ct. 319, 71 L. Ed. 580, 50 A. L. R. 1; In re Chapman, 166 U. S. 661, 668-672, 17 S. Ct. 677, 41 L. Ed. 1154; Kilbourn v. Thompson, 103 U. S. 168, 194, 195, 26 L. Ed. 377).

Applying the above rules to the present case, it is necessary to ascertain if the investigation of this primary election was germane to the exercise of any constitutional power possessed by the Senate. The resolution states its objects to be ascertainment of facts which "would not only be of public interest but which would aid the Senate in enacting any remedial legislation or in deciding any contest which might be instituted involving the right to a seat in the United States Senate." Whatever lack of authority there may be to prosecute an investigation for the "public interest" or to aid the Senate "in enacting any remedial legislation" relating to primary elections, there can be no doubt of the power of the Senate to determine contests involving the right to seats in the Senate because it has an expressed constitutional...