United States v. Seymour, 1536.

• Decision Date: 13 May 1931
• Docket Number: No. 1536.,1536.
• Citation: 50 F.2d 930
• Parties: UNITED STATES v. SEYMOUR.
• Court: U.S. District Court — Panama Canal Zone

50 F.2d 930 (1931)

UNITED STATES v. SEYMOUR.

No. 1536.

District Court, D. Nebraska, Lincoln Division.

May 13, 1931.

Charles E. Sandall, U. S. Atty., of Omaha, Neb., and Robert Van Pelt, Asst. U. S. Atty., of Lincoln, Neb.

T. S. Allen and Robert Devoe, both of Lincoln, Neb., for defendant.

MUNGER, District Judge.

By a demurrer, which in effect is a general demurrer, the defendant challenges the sufficiency of the charge against him in the indictment. The indictment contains eight counts, similar in nature. In each it is alleged that the defendant violated section 125 of the Penal Code of the United States (18 U. S. Code § 231 18 USCA § 231) which provides: "Whoever, having taken an oath before a competent tribunal, officer, or person, in any case in which a law of the United States authorizes an oath to be administered, that he will testify, declare, depose, or certify truly, or that any written testimony, declaration, deposition, or certificate by him subscribed, is true, shall willfully and contrary to such oath state or subscribe any material matter which he does not believe to be true, is guilty of perjury, and shall be fined not more than $2,000 and imprisoned not more than five years."

The indictment sets forth the time of the alleged perjury as on July 21, 1930, and the occasion as a hearing at Lincoln, Neb., before United States Senator Gerald P. Nye. It is alleged that the Senate of the United States on April 8, 1930, had adopted a resolution as follows:

"Resolved, That a special committee consisting of five Senators, to be appointed by the Vice-President is hereby authorized and directed to investigate the campaign expenditures of the various candidates for the United States Senate, the names of the persons, firms or corporations subscribing, the amount contributed, the method of expenditure of said sums, and all facts in relation thereto, not only as to the subscriptions of money and expenditures thereof but as to the use of any other means or influence, including the promise or use of patronage, and all other facts in relation thereto 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.

"The investigation hereby provided for, in all the respects above enumerated, shall apply to candidates and contests before senatorial primaries, senatorial conventions, and the contests and campaign terminating in the general election in November, 1930.

"No Senator shall be appointed upon said committee from a State in which a Senator is to be elected in the general election in 1930.

"Said committee is hereby authorized to act upon its own initiative and upon such information as in its judgment may be reasonable or reliable. Upon complaint being made before said committee under oath by any person, persons, senatorial candidate, or political committee, setting forth allegations as to facts which under this resolution it would be the duty of said committee to investigate, the said committee shall investigate such charges as fully as though it were acting upon its own motion, unless after a hearing upon such complaint the committee shall find that the allegations in said complaint are immaterial or untrue.

"Said committee is hereby authorized in the performance of its duties to sit at such times and places, either in the District of Columbia, or elsewhere, as it deems necessary or proper. It is specifically authorized to require the attendance of witnesses by subpoena or otherwise; to require the production of books, papers, and documents; and to employ counsel, experts, clerical, and other assistants; and to employ stenographers at a cost not exceeding 25 cents per one hundred words.

"Said committee is hereby specifically authorized to act through any subcommittee authorized to be appointed by said committee. The chairman of said committee or any member of any subcommittee may administer oaths to witnesses and sign subpoenas for witnesses; and every person duly summoned before said committee, or any subcommittee thereof, who refuses or fails to obey the process of said committee or who appears and refuses to answer questions pertinent to said investigation shall be punished as prescribed by law.

"The expenses of said investigation, not exceeding in the aggregate $100,000, shall be paid from the contingent fund of the Senate on vouchers signed by the chairman of the committee or the chairman of any subcommittee.

"All hearings before said committee shall be public, and all orders or decisions of the committee shall be public.

"The committee shall make a full report to the Senate on the first day of the next session of the Congress."

It is further alleged that the vice president of the United States appointed a committee of five United States Senators pursuant to the terms of the resolution, including Senator Nye as one of the members, and that, at a meeting of the committee at which four of its members were present, action was taken as follows: "A discussion of future procedure was had. The Chairman was unanimously authorized to act as a sub-committee and to appoint sub-committees of one or more members to hold hearings as in his judgment was desirable."

It is further alleged that the committee appointed under the terms of the resolution of the United States Senate, through a subcommittee of one, composed of Senator Gerald P. Nye, proceeded to make an investigation in Nebraska with a view to making a report to the Senate upon matters referred to the committee, and that, in the course of the investigation, the defendant appeared and took an oath before Gerald P. Nye, United States Senator, a member and chairman of the committee. It is also alleged that the defendant took his oath that he would testify truly, and it is alleged that he willfully testified falsely. As to the matter of inquiry, upon which the testimony of the defendant was alleged to have been given, it is charged that the Governor of Nebraska had duly designated the 12th day of August, 1930, as the date for holding a primary election for a nomination by the political parties of candidates for public offices to be voted for at the general election in 1930, and that one of these offices was that of a United States Senator from Nebraska. The indictment states that: "Prior to the aforesaid Primary election, applications had been respectively filed in the office of the Secretary of State of Nebraska, by and on behalf of George W. Norris of McCook, Nebraska, and George W. Norris of Broken Bow, Nebraska, requesting that each of their names be placed upon the official ballot of the Republican party for the Primary election to be held on the twelfth day of August, in the year nineteen hundred thirty, as a candidate for United States Senator, and a statement in writing was filed by W. M. Stebbins of Gothenburg, Nebraska, as provided by law, accepting a written application filed by sufficient qualified voters of the State of Nebraska, requesting that said W. M. Stebbins' name be placed upon the official Primary ballot of the Republican party for the Primary election to be held the twelfth day of August, in the year nineteen hundred thirty, as aforesaid, as a candidate for the office of United States Senator from Nebraska."

In the several counts it is alleged that the defendant falsely testified, in substance, that he had had no contact with the pending senatorial campaign and had not conferred with any one about it; had heard only through the press that money was available for use in the primary senatorial campaign; had seen no evidence of availability of money in the campaign; had not spent any money in connection with it; that no money or credits had been placed at his disposal for use in it; that he had no knowledge of any contributions made for or against the candidacy of any candidate for the United States Senate; that he had had no part in encouraging the candidacy of George W. Norris of Broken Bow, Neb., with (sic) the Republican nomination for United States Senator at the primary election; that he had not taken part in any conferences relating to any political situation in Nebraska concerning the candidates for United States Senator at the primary election; and that he did not know of George W. Norris of Broken Bow, Neb., until he saw his filing in the newspapers, and had no information concerning him until he saw this filing in the newspapers. In the arguments offered upon the demurrer it was conceded that the power of the committee of the Senate to make inquiry of the defendant depended upon some constitutional grant of power, express or implied, whereby the Senate committee was authorized to make the investigation which was outlined in the Senate resolution under which Senator Nye purported to act. This constitutional limitation of such an inquiry is well established. Kilbourn v. Thompson, 103 U. S. 168, 190, 192, 26 L. Ed. 377; Interstate Commerce Commission v. Brimson, 154 U. S. 447, 478, 14 S. Ct. 1125, 38 L. Ed. 1047; In re Chapman, Petitioner, 166 U. S. 661, 668, 17 S. Ct. 677, 41 L. Ed. 1154; Ellis v. Int. Commerce Commission, 237 U. S. 434, 445, 35 S. Ct. 645, 59 L. Ed. 1036; Fed. Trade Commission v. American Tobacco Co., 264 U. S. 298, 305, 306, 44 S. Ct. 336, 68 L. Ed. 696, 32 A. L. R. 786; McGrain v. Daugherty, 273 U. S. 135, 174, 176, 178, 47 S. Ct. 319, 71 L. Ed. 580, 50 A. L. R. 1; Reed v. County Commissioners, 277 U. S. 376, 388, 48 S. Ct. 531, 72 L. Ed. 924; Sinclair v. United States, 279 U. S. 263, 291, 49 S. Ct. 268, 73 L. Ed. 692.

The inquiries made of the defendant in this case relate to his testimony concerning his knowledge and acts in connection with a campaign preceding a primary election in Nebraska, at which party candidates for United States Senator were to be selected. The Seventeenth Amendment to the United States Constitution provides...