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authority. The House alone may originate the proceeding, and, therefore, an inquiry into the conduct of an officer for the purpose of impeachment can not be carried forward by the Senate.And if it were objected, for example, that the newspapers of the United States were unduly criticizing members of either House of Congress because of their views upon public affairs, and it were proposed to inquire into the reasons for the opinions expressed by any newspaper on a public subject, it would be estopped, because you can not enact legislation abridging the freedom of speech or press.
Those are only illustrative cases, apparently, of the limitations of legislative inquiry. In the Kilbourn-Thomson case, for example, which is the great leading case in this country, the Senate directed an inquiry into a so-called real estate pool in the District of Columbia. Î'he firm of Jay Cooke, in which the Government had a financial interest, had gone into bankruptcy, and at attempt was made, through a referee in bankruptcy, to settle the affairs of the bankrupt. Congress having discussed the relations of the Government in the matter, authorized a committee of the Senate to inquire into the operations of this pool. A witness having appeared before it and refused to testify, they attached him for contempt and punished him and he sued the Sergeant at Arms for damages. The court in reviewing that case—and that is one of the widest reviews of the powers of either house of Congress to legislate that we have in judicial history-pointed out that the subject matter to which the inquiry of the Senate was directed was one upon which neither house of Congress was competent to legislate; and, secondly, that the question involved of the adjudication of the rights of the Government was a judicial question, and if the committee of the Senate undertook to act upon it, it would be undertaking to exercise judicial and not legislative power, and it was for that reason forbidden to engage in the inquiry.
I point these out as illustrations of the manner in which the tests have been applied to the exercise of this power. So we come to the conclusion, then, that with regard to the exercise of the power of inquiry by Congress to delve into the affairs of the citizen, to compulsorily require his attendance as a witness and the production of books, records and papers, that the limit of that power is the power of either house to competently deal with the subject matter to which the inquiry is directed.
Senator HOWELL. Assuming that there is a constitutional amendment pending and that is referred to a committee and there are hearings held—just as hearings are being held here-would the Congress have authority to inquire or investigate as to the advisability of submitting such a constitutional amendment?
Mr. EMERY. Yes, sir.
Senator HOWELL. That constitutional amendment might have to do with matters over which Congress had no authority whatever. How far may their investigation go?
Mr. EMERY. Well, it would have to be limited by the nature of the proposal and its present power, but it could go very far into the inquiry because the inquiry would be specific in its nature. It would be a pending proposal specific in its nature.
Senator WHEELER. Supposing it were not specific. Supposing that Congress simply introduced a resolution for the purpose of
proposing some constitutional amendment without specifying the particular point.
Mr. EMERY. Do you mean if it were proposed that Congress would enter upon the question of whether or not any amendments were required to the National Constitution and would, therefore, undertake to engage in general inquiries to see whether any amendments of
any kind were to be attached to the Constitution? Senator WHEELER. Exactly.
Mr. EMERY. Would they then have general powers of inquiry into anything anywhere in the country? No, sir; they would not, in my opinion. The indefinite nature of the inquiry
Senator WALSH. It seems to me that the Constitution contemplates just exactly that situation, because it contemplates the calling of a convention for revising the Constitution generally; and, consequently, Congress certainly ought to have the power to inquire whether the situation is such as to require a general convention to revise the Constitution.
Mr. EMERY. As to any specific subject ?
Senator WALSH. No; there is not any specific subject at all. The Constitution specifically provides for the calling of a convention to make another Constitution altogether different from what we have now. Can there be any doubt as to whether Congress has the right to inquire whether such a convention is necessary, and whether our system of government has so fallen down that we have to have another Constitution? Can you doubt it?
Mr. EMERY. I doubt it. However, they are entirely irrelevant to the discussion before us.
Senator WALSH. I entirely agree with you.
Senator HOWELL. Supposing there were a constitutional amendment pending providing that Congress should have authority over all of the public utilities of this country, or the electric public utilities, and it should be urged that this constitutional amendment were necessary because of abuses which had crept into the industry. Do you mean to say that Congress would not have the authority to go into and investigate as to these abuses and to determine whether it was wise to submit such an amendment?
Mr. EMERY. No, sir; I do not.
Senator HOWELL. In other words, there would be a way by introducing such an amendment whereby Congress could go into the affairs of intrastate electric lighting plants?
Mr. EMERY. It does not need any amendment to the Constitution or any proposal to do that now.
Senator HOWELL. You hold, then, that we have entire authority to go into their private affairs !
Mr. EMERY. No; I hold that with respect to the interstate business of any corporation
Senator HOWELL. I said intrastate. Mr. EMERY. I beg your pardon; I thought you said interstate. I hold that with respect to any inquiry which you conduct at the present time the inquiry must be conducted under the power that Congress has at present.
Senator HOWELL. But assuming that there is a constitutional amendment pending placing authority over all electric corporations
of this country, whether interstate or intrastate, would not Congress have the authority to investigate to determine whether such an amendment were necessary?
Mr. EMERY. Yes, sir. However, Mr. Chairman, that is not the issue before the committee. The issue before the committee is whether or not a resolution which directs an inquiry into public utility corporations and those other corporations related to or affiliated with them may be conducted under the grant of authority proposed in the pending resolution, and certainly whatever conditions or powers may surround hypothetical or future legislation, the inquiry before this committee is what is the nature of the power that may be applied to the pending resolution.
Senator WHEELER. But would not the courts assume that this resolution was for the purpose of investigating something that the Congress had a right to investigate on, even if it went so far as to investigate intrastate?
Mr. EMERY. Let me assume, Senator, that your position is entirely correct.
Senator WHEELER. Is it not correct?
Senator WHEELER. That is what they did in the Daugherty case, is it not?
Mr. EMERY. No; what they did in the Daugherty case was to say that there is no question but that the Senate of the United States has the power to legislate with respect to the office of the Attorney General of the Unite dStates. The Attorney General of the United States is under inquiry as to the conduct of his office.
Senator WHEELER. And they assumed that it was for the purpose of legislating
Mr. EMERY. Pardon me. They did not assume it. They said it was written on the face of the resolution, and the only objection that was raised was because the resolution asserted that they were not only inquiring for the purpose of legislating, but it intimated that they were inquiring for other purposes beside legislation, and that alone raised the question which Mr. Daugherty brought to court, and the court said it might have been expressed otherwise, but it did not limit their power to inquire into the premises.
The question, Mr. Chairman, as to whether or not the Congress of the United States in exercising its powers may make inquiries with respect to subjects which are so intimately related to the subject matter over which it has power as to include it, is a subject that has been passed upon many times; but, sir, the point we make with respect to this resolution is that not only does it cover matters that call for the exercise of the interstate commerce powers of Congress, and its control over commerce between States, or matters that may be related to them, but it plainly and flatly and frankly, and as clearly as the English language can express it, undertakes to inquire into matters on which there can be no dispute; they are wholly and completely intrastate in character and operation. And if there is any power of limitation left in the Constitution of the United States, the Senate of the United States, or the House, or the Congress of the United States has no power of inquiry. It is true that it can assert it and declare it, but it can not validly exercise it, and it is to the valid exercise of that power that we address this discussion. I said, Mr. Chairman, as has been said by the courts many times, that the manner in which this power has been exercised in the past by the Congress itself is a contemporary precedent on the viewpoint which either House has with respect to the nature and limits of the power which it exercises; and I call your attention to the legislative precedents for two reasons; first, because they show what Congress regarded as the character of its own power; and, secondly, because they show that within the limits of its recognized power it has been loath to exercise, say, with continuing limitations, the very great power that it possesses with respect to legitimated subject matters of inquiry that require an invasion of the privacy of the citizen.
Senator WHEELER. Are these cases that you are calling attention to questions of legislation, or are they precedents with reference to investigation ?
Mr. EMERY. Investigation. First of all, Mr. Chairman, at this point I wish to put into the record a statement of the investigations by Senate committees empowered to send for persons and papers, so far as I have been able to ascertain their number. It may be that my record is not complete, but it is as nearly complete as a careful inquiry could make it. It begins with the inquiry into the Seminole War, in 1818, and ends with the investigation into the price of coal in the District of Columbia in 1926.
In each of these cases the Senate authorized a committee to send for persons and papers. It will be found upon examination that with, perhaps, three exceptions, every inquiry is directed to the conduct of public officers, the expenditure of appropriations, the operation of the Government of the United States, and a general inquiry into affairs of that character. Of course, I have excluded all inquiries into the proceedings of either body with respect to its members or the integrity of its proceedings with respect to which there is no question of power here at issue.
(The list of investigations above referred to is as follows:)
Investigations by Senate committees empowered to send for persons and papers
Title of investigation
Title of investigation
1890 1892 1896 1897 1897 1901 1906 1909 1910 1913 1913
1830 1852 1857 1858 1860 1860 1861 1862 1870 1870 1872 1874 1876 1879 1879 1879 1883 1885 1886 1888 1888
Commissioner of Fish and Fisheries.
Mr. EMERY. The first time that the question of the power of investigation into private books and papers was at issue was dealing with the Bank of the United States in 1832.
Senator WALSH. Mr. Chairman, with all due respect, I want to inquire if there is any time limit?
T'he CHAIRMAN. I do not know. We are listening to this. Expressing my own opinion, I think it is relevant because it refers directly to the authority of Congress to investigate the very thing that this resolution asks to have investigated.
Senator Walsh. In my presentation of this I hurried, recognizing that the members of the committee were pressed for time.
The CHAIRMAN. That is quite true, Senator; but I think a matter of that kind has to be left partially to the discretion of the man who is making the speech.
Mr. EMERY. I am entirely subject to the wishes of the committee, of course; and if there is any argument that I make in the course of this proceeding that is not relevant to the question of power involved here, I will immediately suspend; but I trust that when so grave a question as power is involved, and many persons are here for the purpose of expressing their views, the committee will be as lenient as possible.
The CHAIRMAN. So far as I know, Senator Walsh, Mr. Emery is the last witness. If there are others, I do not know of them.
Senator WALSH. I would say, Mr. Chairman, that I have been listening a long time to this argument, and I have not yet been able to understand just what it is that the gentleman now addressing the committee contends for. I tried to present my view that the investigation falls under the power of the Congress to legislate on matters of interstate commerce, and I attempted to show that this has relation to interstate commerce. I concede that Congress can not inquire into any subject with relation to which it can not legislate. There will not be very much room for controversy or argument about that. I thought that Congress could legislate in relation to this energy that is passed from one State to another. I thought that Congress could legislate in relation to the transfer of these securities from one State to another. I also thought that it could legislate with reference to the consolidation of all of these institutions into one purchasing agent; and, therefore, that the whole subject matter came within the power to legislate with respect to interstate commerce.
The CHAIRMAN. I think the modification proposed yesterday by the Senator
Senator WALSH. But I do not understand that this witness here has proposed any modification. I understand that the whole drift of his argument is that the Senate has no power to investigate the subject at all. If that is not true I have entirely misapprehended the argument of counsel, for that is what he is contending for.
The CHAIRMAN. We can have him explain that.
Mr. EMERY. My contention is a very simple one. I regret that I can not make it plainer, Mr. Chairman. My contention is that the resolution before this committee is a grant of power by the Senate and a direction to its committee, and we hold that that grant of power is one that authorizes and empowers an investigation into the private affairs of citizens and corporations, which is beyond the power of Congress.