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that neither Congress nor any instrumentality of it had any power of general inquiry into the affairs of the citizen, subject to the expressions hitherto made.
I pointed out the case of Interstate Commerce Commission v. Harriman, and Interstate Commerce Commission v. Ellis, and Interstate Commerce Commission v. Louisville & Nashville Railroad, all of which dealt with the exercise of these powers by instrumentalities of Congress.
And I called the attention of the committee, and I want to now call your attention especially to the case of Interstate Commerce Commission v. Louisville & Nashville Railroad, because there was involved an inquiry by a commission into an instrument of interstate coinmerce completely within the control of the Congress of the United States. The Interstate Commerce Commission there sought to compel the production of papers, which included the correspondence and various memoranda relating to the internal affairs of the railroad company, its policies, its conduct, in meeting the operation of its affairs; its relations with its employees, its counsel, and all those proceedings that necessarily relate themselves to the operation of any great business corporation, or, for that matter, any business corporation great or small. And it was denied the power of inquiry into that correspondence was denied. And yet here was an instrumentality unquestionably and completely within the control of the Congress of the United States in the exercise of the interstate commerce power.
Now, I want to call the attention of the committee to just two other lines of cases and will conclude this line of discussion: First, there is what I have said with respect to the power of the Congress to inquire in obtaining information upon which to legislate but limited by its competency to legislate upon the subject matter of the inquiry.
The cases which deal with that question in the Supreme Court of the United States are the cases of Anderson v. Dunn (6 Wheaton); Kilbourn v. Thompson (103 U. S.), and that perhaps is the leading case because it has been very constantly referred to and constantly reaffirmed in every succeeding case considered by the Supreme Court of the United States; the case In re Chapman (106 U. S.); and finally the last expression of the Supreme Court on this subject was in the case of McGrain v. Daugherty, involving the power of the Senate of the United States to compel the presence for the giving of testimony of one Mal. Daugherty, who denied its power to require his presence as a witness.
All these cases are reviewed in the Daugherty case, and it is not necessary for me to dwell upon them at length now, except to refer to what the Supreme Court said these cases lay down as a determination of the power of the Congress to conduct inquiries. And remember that in the Daugherty case the sole question before the Supreme Court and on which it was required to pass was: Was the inquiry to be conducted through the witness Daugherty, an inquiry which involved the power of Congress to legislate?
It was an inquiry into the conduct of the Attorney General's office, a subject upon which the Congress of the United States had full power to legislate. It created that office. It could destroy that office. It could modify that office. And the conduct of a public officer in the
discharge of his public duties has always been held to be a proper subject of inquiry by the Congress of the United States, or either branch of it which must deal with it legislatively or appropriate money for its maintenance and operation. So that that was the sole question involved.
Two questions had been presented to the court, one of which, the Supreme Court calls attention to, was not properly before them. The first was raised by the issuance of a subpæna to the witness, requiring the production of various records, books, and papers of the Midland National Bank. The Senate did not press that part of the inquiry, but pressed its power to require the presence of the witness Daugherty. He had not been examined, and therefore there was no question as to the relevancy of any inquiry which would be addressed to him, but merely whether or not the inquiry which the Senate was conducting was one upon which it was competent to legislate. And the court sustained the full power of the Senate to compel the presence of the witness. In doing so they said, because that was the issue:
While these cases are not decisive of the question we are considering, they definitely settle two propositions which we recognize as entirely sound and having a bearing on its solution
That is, the solution of the question before themone that 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; and, the other, that 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.
And the court then states in support of these, the cases I have hitherto brought to the attention of the committee; and to the last of these I now beg to call your attention further. This is the case of Federal Trade Commission v. American Tobacco Company (264 U. S. 298). The opinion is by Mr. Justice Holmes, with no dissent. These were reviews of petitions for writs of mandate to compel the respondent, American Tobacco Co., to answer the inquiries of the Federal Trade Commission, or produce books, records, and documents which it demanded. The Federal Trade Commission pleaded in support of its right to compel the production of these books, records, and papers a resolution of the Senate which directed the inquiry, and the power of the Federal Trade Commission in responding to the resolution of the Senate was predicated upon the sixth section of the Federal Trade Commission act, and I want the committee, if they will, to notice the general language of this statute upon which the Federal Trade Commission relied to carry out the express will of the Senate in its relation to the resolution pending before this committee. That section reads:
The commission shall have power (a) to gather information concerning, and to investigate the business, conduct, practices, and management of any corporation engaged in commerce, except banks and common carriers, and its relation to other corporations and individuals.
The resolution pending before your committee directs an inquiry into all public utility corporations engaged in the production of electric power and light, and gas, natural and artificial. It does not
except, as does the statute here, even banks, since the resolution b9fore your committee directs an inquiry into all financial institutions which are stockholders of such public utility corporations, or which exert any control over them; and of course the reverse of that is, if they can inquire into banks to determine their relations to the corporations, they may inquire into the corporations to determine their relations to the banks. And the grant of power to the proposed committee would require the production of information in terms as general as the terms that are here set forth in the sixth section of this act:
(b) To require reports and answers under oath to specific questions, furnishing the commission such information as it may require on the above subjects.
Now, the Federal Trade Commission directed the American Tobacco Co. to deliver to it all letters and documents received by it, or sent by it, to all its jobber customers between January 1, 1921, and December 31, 1921, inclusive. The company refused to do so, whereupon the Federal Trade Commission pleaded the resolution of the Senate to this action as authority for commanding the production of such documents from a single corporation. The opinion goes on
then to say:
The Senate resolution may be laid on one side, as it is not based on any alleged violation of antitrust acts, within the requirement of section 6 (d) of the act.
The complaints, as to which the commission refused definite information
That is, the complaints that there was some misconduct on the part of the American Tobacco Co. as the basis of the inquiry, but not a formal proceeding under the Federal Trade Commission act:
to the respondents, and one, at least of which we understand, has been dismissed, also may be disregarded for the moment, since the commission claims an unlimited right of access to the respondent's papers with reference to the possible existence of practices in violation of section 5.
The resolution before you is to inquire into proceedings of a purely intrastate character, intrastate utilities, for the purpose of determining whether there are any abuses in their organization. The opinion from which I am quoting continues :
The mere fact of carrying on commerce not confined within State lines, and of being organized as a corporation, do not make men's affairs public, as those of a railroad company now may be.
Anyone who respects the spirit as well as the letter of the fourth amendment would be loath to believe that Congress intended to authorize one of its subordinate agencies to sweep all our traditions into the fire.
And then the opinion refers to the cases that I have hitherto called your attention to:
And to direct fishing expeditions into private papers on the possibility that they may disclose évidence of crime.
And here that they may disclose some evidence of abuses :
We do not discuss the question whether it could do so if it tried, as nothing short of the most explicit language would induce us to attribute to Congress that intent. The interruption of business, the possible revelation of trade secrets, and the expense of compliance with that commission's possible wholesale demand would cause, are the least considerations. It is contrary to the first principles of justice to allow a search through all the respondents' records, relevant or ifrelevant, in the hope that something will turn up. The unwilling
ness of this court to sustain such a claim is shown in Harriman v. Interstate Commerce Commission (211 U. S. 407),
and as to the correspandence, even in the case of a common carrier, in U. S. v. Louisville & Nashville Railroad Company
the question is a different one where the State granting the charter gives its commission power to inspect.
The right of access given by the statute is to documentary evidence not to all documents, but to such documents as are evidence. The analogies of the law do not allow the party wanting evidence to call for all documents in order to see if they do not contain it. Some ground must be shown for supposing that the documents called for do contain it.
And then they discuss the power of the courts to produce evidence in a court proceeding, and continue:
The demand was not only general, but extended to the records and correspondence concerning business done wholly within the State.
That is precisely what is proposed in the resolution before your committee, an inquiry into business wholly within the State:
This is made a distinct ground of objection. We assume for present purposes that even some part of the presumably large mass of papers relating only to intrastate business may be so connected with charges of unfair competition in interstate matters as to be relevant,
but that possibility does not warrant a demand for the whole. For all that appears, the corporations would have been willing to produce such papers as they conceived to be relevant to the matter in hand.
We have considered this case on the general claim of authority put forward by the commission. The argument for the Government attaches some force to the investigations and proceedings upon which the commission had entered. The investigation and complaints seem to have been only on hearsay or suspicion; but even if they were induced by substantial evidence'under oath, the rudimentary principles of justice that we have laid down would apply We can not attribute to Congress an intent to defy the fourth amendment, or even to come so near to doing so as to raise a question of constitutional law.
Senator SACKETT. Mr. Emery, does it occur to you that there is any difference between the power of Congress given to the Federal Trade Commission and the right of Congress to give that power to a Senate investigating committee?
Mr. EMERY. Yes, sir. Of course, an instrumentality of Congress must operate within the limits of the statutory authority which Congress confers upon it. But the Congress of the United States, when operating through one of its branches or through a committee of that body, is subject to the same limitations upon general inquiries that are disclosed in the attempt of the Federal Trade Commission here, and a general inquiry into the private affairs of an individual or a corporation would be forbidden for the same reasons that are laid down here, because the charter of power which is laid down by the resolution which is before this committee, and which this committee is asked to approve and the Senate then to authorize, is a power broader than the one the exercise of which was deemed improper when undertaken by an instrumentality of the Congress.
Senator SACKETT. Does it occur to you that there is any difference between the authority you have just been citing as to a private corporation and the authority of the Congress to proceed against a class of corporations whose property is impressed into public use like public utilities?
Mr. EMERY. Yes, sir. It would if the impression of public use were national and not local in character. I conceive that so far as a public utility operating exclusively in the State of New York, or of Pennsylvania, or any other State of the American Union is concerned, that while its records, papers, and documents and operations are subject to the law of the State, to such supervision as the regulatory power may impose, yet that that corportion so far as its internal affairs are concerned, and its operations within a State are concerned, is as much a private corporation to the Congress of the United States as is any manufacturing or commercial or banking corporation engaged in business anywhere in this country. And the protection which the fourth amendment throws around its privacy as against Federal search of an unreasonable character, is just as great as the protection which is afforded to any private business corporation of any kind under the same circumstances; and not only that, but even as far as the State is concerned, Senator Sackett, it is obvious that under the rule laid down in Interstate Commerce Commission v. Louisville & Nashville Railroad Co., that there is a whole mass of records and documents even of a public service corporation which are themselves protected in a State where the constitution of the State has a provision similar to the fourth amendment, against unreasonable invasion by the public service corporation itself.
In other words, the rule of privacy seems to be this: In a judicial proceeding we all recognize the fact that before you can invade privacy of the individual as a witness, or require the production of his books and papers, it must be shown that they are relevent to the subject matter of the litigation then before the court. That is, the trespass upon privacy is vindicated only to the extent that such an invasion is necessary in order to insure the administration of justice.
Now, in the exercise of the congressional power of investigation, or that of the State, the disclosure of the individual's private affairs or of the corporation's private affairs must be such disclosure as is essential to the performance of the congressional function and within the limits upon which the Congress bases its power to investigate. Its complete and plenary authority to inquire into private affairs, is only subordinated to the public interest in order to accomplish this purpose. But that is certanly the limit of its power and authority. The test of it is whether or not it is competent to legislate on the subject matter.
For example, Senator, suppose that at the present moment with the discussion that has recently broken out in the Senate it was proposed that the Senate should inquire into the religious affiliations of the employees of the National Government. I think it would be obvious that the Senate could not conduct such an inquiry, because it could not legislate with respect to that subject, no matter what information it obtained. More than that, I think a man's religious affiliations are his private affair, and that no public body would have a right to inquire into them. But, certainly, neither House of Congress could legislate upon the subject of the religious affiliations of an employee of the United States.
Nor, for example, as this McGrain-Daugherty case plainly indicates, if the Senate were to undertake to try a public official on the charge of misconduct, and that were set up in a resolution and a committee were appointed for that purpose, it could not conduct the inquiry because it would be incapable of impeaching the officer. If the Senate undertook to inquire into the conduct of an official for the purpose of impeaching him, it is estopped because it has not the