Townsend v. United States, 6928.

• Decision Date: 07 February 1938
• Docket Number: No. 6928.,6928.
• Citation: 95 F.2d 352
• Parties: TOWNSEND v. UNITED STATES.
• Court: U.S. Court of Appeals — District of Columbia Circuit

95 F.2d 352 (1938)

TOWNSEND v. UNITED STATES.^*

No. 6928.

United States Court of Appeals for the District of Columbia.

Decided February 7, 1938.

Elisha Hanson and Joseph A. Cantrel, both of Washington, D. C., for appellant.

Leslie C. Garnett, U. S. Atty., and H. L. Underwood, Asst. U. S. Atty., both of Washington, D. C.

Before GRONER, Chief Justice, and STEPHENS and MILLER, Associate Justices.

MILLER, Associate Justice.

The appellant was convicted by the verdict of a jury in the District Court under an indictment charging him with violation of section 102, Rev.St., 2 U.S.C.A. § 192, which reads as follows:

"Every person who having been summoned as a witness by the authority of either House of Congress, to give testimony or to produce papers upon any matter under inquiry before either House, or any committee of either House of Congress, willfully makes default, or who, having appeared, refuses to answer any question pertinent to the question under inquiry, shall be deemed guilty of a misdemeanor, * * *"

He appeals from the judgment of conviction.

The indictment contained two counts. The court directed a verdict of acquittal on the second count, but the jury convicted appellant under the first count, which alleged in substance: That on March 10, 1936, there was pending before the House of Representatives of the United States, proposed legislation with respect to plans for old-age pensions; that a resolution was adopted by the House providing for a select committee to investigate the subject, and authorizing the committee, among other things, to require the attendance of witnesses, to issue subpoenas, and to report to the House thereon at any time, or to transmit its report to the Speaker should the House not be in session; that the committee was appointed; proceeded to carry out its instructions; and in the performance of its duties issued a summons commanding that the appellant be summoned "to be and appear" before the committee on a certain date; that the summons was served; that the appellant did appear and testify, but that: "while the said Committee was still in session and had under inquiry the matter aforesaid, and while the summons aforesaid was still in full force and effect and while the said Francis E. Townsend was still a witness before the said Committee, the said Francis E. Townsend unlawfully, knowingly and wilfully and without leave of the Committee did depart and absent himself from the presence of the said Committee and from the room and place situate in the District of Columbia where the said Committee was functioning as aforesaid, and thereby, on the said twenty-first day of May, 1936, and within the District of Columbia, unlawfully and wilfully did make default. * * *"

The appellant assigns as error the admission in evidence of H.Res. 443, 74th Cong., authorizing the Speaker to appoint a select committee and instructing that committee: "to inquire into old-age pension plans with respect to which legislation has been submitted to the House of Representatives, and particularly that embodied in H.R.7154 in the United States Congress, with special reference to the acts and conduct of any person, partnership, group, trust, association, or corporation claiming or purporting to promote, organize, or further old-age pension legislation or schemes, and that such committee be further instructed to inquire into the history and records of the various proponents, operators, promoters or schemers now engaged in promoting such legislation or schemes and to gather and collect all facts and information relative thereto which would not only be of public interest but which would aid Congress in enacting any remedial legislation upon said subject, including any lobbying and propaganda in connection therewith, and inquire into their various methods of raising and collecting money, and to examine their books, papers, and records, and to inquire as to the disposition, holding, spending, or appropriation of such moneys so collected. That said inquiry and investigation are material and necessary to the proper performance by Congress of its legislative functions and duty relative to the legislation hereinbefore mentioned and as an aid to such legislation." (Italics supplied.)

The resolution further provided:

"And the committee shall have the right to report to the House at any time the results of its investigations and recommendations for other or additional legislation upon said bill or any other proposed legislation relative to old-age pensions.

"That said committee or any subcommittee thereof is authorized to sit and act during the present Congress at such times and places within the United States whether or not the House is sitting, has recessed, or adjourned; to hold such hearings, to require the attendance of such witnesses and the production of such books, papers, and documents, by subpoena or otherwise, and to take such testimony as it deems necessary. Subpoenas shall be issued under the signature of the Speaker of the House of Representatives or the Chairman of said committee and shall be served by any person designated by them or either of them. 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 or any subcommittee thereof, wilfully makes default, or who, having appeared, refuses to answer any questions pertinent to the investigation heretofore authorized, shall be held to the penalties provided by section 102, chapter 7, of the Revised Statutes of the United States, second edition, 1878."

This resolution was set out in the count under which appellant was convicted. It constituted the authority under which the appellant was summoned as a witness, pursuant to the provisions of section 102, Rev. St. Appellant's objection to its admission in evidence, therefore, goes back of the resolution to the indictment itself; and challenges the authority of the committee to issue the summons, as well as the propriety of punishing a witness for contempt. This question is too well settled to be reopened at this time. McGrain v. Daugherty, 273 U.S. 135, 173-175, 47 S.Ct. 319, 328, 329, 71 L. Ed. 580, 50 A.L.R. 1.

In Kilbourn v. Thompson, 103 U.S. 168, at page 189, 26 L.Ed. 377, relied on by appellant, the court expressly declined to decide whether the power to punish for contempt exists "as one necessary to enable either House of Congress to exercise successfully their function of legislation." Moreover, the observations of the court upon the point do not support appellant's contention "that Congress has no right to make an investigation into the acts and conduct of any citizen of this country, and Congress has no right to make an inquiry into the personal history or past records of citizens of this country." What the court did say is (103 U.S. 168, at page 190, 26 L.Ed. 377): "no person can be punished for contumacy as a witness before either House, unless his testimony is required in a matter into which that House has jurisdiction to inquire, and we feel equally sure that neither of these bodies possesses the general power of making inquiry into the private affairs of the citizen." (Italics supplied.)

After pointing out that the subject of the House resolution in that case was one proper only for a judicial inquiry, the court said (103 U.S. 168, at page 195, 26 L.Ed. 377): "Was it the Congressional inquiry to be simply a fruitless investigation into the personal affairs of individuals? * * * By `fruitless' we mean that it could result in no valid legislation on the subject to which the inquiry referred." (Italics supplied.)

In McGrain v. Daugherty, supra, the court stated it to be settled law that (273 U. S. 135, at page 173, 47 S.Ct. 319, 328, 71 L. Ed. 580, 50 A.L.R. 1): "neither house is invested with `general' power to inquire into private affairs and compel disclosures, but only with such limited power of inquiry as is shown to exist when the rule of constitutional interpretation just stated is rightly applied." The rule referred to was stated as follows: "the two houses of Congress, in their separate relations, possess, not only such powers as are expressly granted to them by the Constitution, but such auxiliary powers as are necessary and appropriate to make the express powers effective." The court then held (273 U.S. 135, at page 174, 47 S.Ct. 319, 328, 71 L.Ed. 580, 50 A.L.R. 1): "that the power of inquiry — with process to enforce it — is an essential and appropriate auxiliary to the legislative function." Moreover, the court said that the presumption should be indulged that the object of the inquiry was to aid the Senate in legislating, even though the resolution did not expressly so avow, and even though the investigation might possibly disclose crime or wrongdoing on the part of the then Attorney General, whose name was expressly referred to in the resolution. In the present case appellant urges that the "Resolution shows on its face that the inquiry had no legislative purpose." A reading of the resolution reveals that this statement is erroneous; an avowal of legislative objective appears at several points in the resolution. As was said in McGrain v. Daugherty, supra, 273 U.S. 135, at page 177, 47 S.Ct. 319, 330, 71 L.Ed. 580, 50 A.L.R. 1: "Plainly the subject was one on which legislation could be had and would be materially aided by the information which the investigation was calculated to elicit."

Appellant urges that "the Committee never recommended any remedial legislation." This is clearly beside the point. The act for which appellant was indicted occurred before the hearings of the committee were concluded. Its power to conduct a hearing for legislative purposes is not to be measured by recommendations for legislation or their absence. See In re Chapman, 166 U.S. 661, 670, 17 S.Ct. 677, 41 L.Ed. 1154.

Appellant next contends that, having once appeared, he...