MCGRAIN v. DAUGHERTY, 273 U.S. 135 (1927)
Argued Dec. 5, 1924.
Decided Jan. 17, 1927.

[273 U.S. 135, 150]  

Mr. Justice VAN DEVANTER delivered the opinion of the Court.

This is an appeal from the final order in a proceeding in habeas corpus discharging a recusant witness held in custody under process of attachment issued from the United States Senate in the course of an investigation which it was making of the administration of the Department of Justice. A full statement of the case is necessary.

The Department of Justice is one of the great executive departments established by congressional enactment, and has charge, among other things, of the initiation and prosecution of all suits, civil and criminal, which may be brought in the right and name of the United States to compel obedience or punish disobedience to its laws, to recover property obtained from it by unlawful or fraudulent means, or to safeguard its rights in other respects, and also of the assertion and protection of its interests, when it or its officers are sued by others. The Attorney General is the head of the department, and its functions are all to be exercised under his supervision and direction. 1  

Harry M. Daugherty became the Attorney General March 5, 1921, and held that office until March 28, 1924, [273 U.S. 135, 151]   when he resigned. Late in that period various charges of misfeasance and nonfeasance in the Department of Justice after he became its supervising head were brought to the attention of the Senate by individual senators and made the basis of an insistent demand that the department be investigated to the end that the practices and deficiencies which, according to the charges, were operating to prevent or impair its right administration might be definitely ascertained and that appropriate and effective measures might be taken to remedy or eliminate the evil. The Senate regarded the charges as grave and requiring legislative attention and action. Accordingly it formulated, passed, and invited the House of Representatives to pass (and that body did pass) two measures taking important litigation then in immediate contemplation out of the control of the Department of Justice and placing the same in charge of special counsel to be appointed by the President, 2 and also adopted a resolution authorizing and directing a select committee of five senators-

'to investigate circumstances and facts, and report the same to the Senate, concerning the alleged failure of Harry M. Daugherty, Attorney General of the United States, to prosecute properly violators of the Sherman Anti-Trust Act and the Clayton Act against monopolies and unlawful restraint of trade; the alleged neglect and failure of the said Harry M. Daugherty, Attorney General of the United States, to arrest and prosecute Albert B. Fall, Harry F. Sinclair, E. L. Doheny, C. R. Forbes, and their co-conspirators in defrauding the government, as well as the alleged neglect and failure of the said Attorney General to arrest and prosecute many others for violations of federal statutes, and his alleged failure [273 U.S. 135, 152]   to prosecute properly, efficiently, and promptly, and to defend, all manner of civil and criminal actions wherein the government of the United States is interested as a party plaintiff or defendant. And said committee is further directed to inquire into, investigate and report to the Senate the activities of the said Harry M. Daugherty, Attorney General, and any of his assistants in the Department of Justice which would in any manner tend to impair their efficiency or influence as representatives of the government of the United States.'

The resolution also authorized the committee to send for books and papers, to subpoena witnesses, to administer oaths, and to sit at such times and places as it might deem advisable. 3  

In the course of the investigation the committee issued and caused to be duly served on Mally S. Daugherty—who was a brother of Harry M. Daugherty and president of the Midland National Bank of Washington Court House, Ohio—a subpoena commanding him to appear before the committee for the purpose of giving testimony bearing on the subject under investigation, and to bring with him the 'deposit ledgers of the Midland National Bank since November 1, 1920; also note files and transcript of owners of every safety vault; also records of income drafts; also records of any individual account or accounts showing withdrawals of amounts of $25,000 or over during above period.' The witness failed to appear.

A little later in the course of the investigation the committee issued and caused to be duly served on the same witness another subpoena, commanding him to appear before it for the purpose of giving testimony relating to the subject under consideration; nothing being [273 U.S. 135, 153]   said in this subpoena about bringing records, books, or papers. The witness again failed to appear, and no excuse was offered by him for either failure.

The committee then made a report to the Senate stating that the subpoenas had been issued, that according to the officer's returns—copies of which accompanied the report—the witness was personally served, and that he had failed and refused to appear. 4 After a reading of the report, the Senate adopted a resolution5 following these facts and proceedings as follows:

'Whereas, the appearance and testimony of the said M. S. Daugherty is material and necessary in order that the committee may properly execute the functions imposed upon it and may obtain information necessary as a basis for such legislative and other action as the Senate may deem necessary and proper: Therefore be it

'Resolved, that the president of the Senate pro tempore issue his warrant commanding the sergeant at arms or his deputy to take into custody the body of the said M. S. Daugherty wherever found, and to bring the said M. S. Daugherty before the bar of the Senate, then and there to answer such questions pertinent to the matter under inquiry as the Senate may order the President of the Senate pro tempore to propound, and to keep the said M. S. Daugherty in custody to await the further order of the Senate.'

It will be observed from the terms of the resolution that the warrant was to be issued in furtherance of the effort be obtain the personal testimony of the witness, and, like the second subpoena, was not intended to exact from him the production of the various records, books, and papers named in the first subpoena.

The warrant was issued agreeably to the resolution and was addressed simply to the sergeant at arms. That [273 U.S. 135, 154]   officer, on receiving the warrant, indorsed thereon a direction that it be executed by John J. McGrain, already his deputy, and delivered it to him for execution.

The deputy, proceeding under the warrant, took the witness into custody at Cincinnati, Ohio, with the purpose of bringing him before the bar of the Senate as commanded, whereupon the witness petitioned the federal District Court in Cincinnati for a writ of habeas corpus. The writ was granted and the deputy made due return, setting forth the warrant and the cause of the detention. After a hearing the court held the attachment and detention unlawful and discharged the witness, the decision being put on the ground that the Senate, in directing the investigation and in ordering the attachment, exceeded its powers under the Constitution. 299 F. 620. The deputy prayed and was allowed a direct appeal to this court under section 238 of the Judicial Code (Comp. St. 1215) as then existing.

We have given the case earnest and prolonged consideration because the principal questions involved are of unusual importance and delicacy. They are (a) whether the Senate—or the House of Representatives, both being on the same plane in this regard—has power, through its own process, to compel a private individual to appear before it or one of its committees and give testimony needed to enable it efficiently to exercise a legislative function belonging to it under the Constitution; and (b) whether it sufficiently appears that the process was being employed in this instance to obtain testimony for that purpose.

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The first of the principal questions, the one which the witness particularly presses on our attention, is, as before shown, whether the Senate—or the House of Representatives, both being on the same plane in this regard—has power, through its own process, to compel a private individual to appear before it or one of its committees and give testimony needed to enable it efficiently to exercise a legislative function belonging to it under the Constitution.

The Constitution provides for a Congress, consisting of a Senate and House of Representatives, and invests it with 'all legislative powers' granted to the United States, and with power 'to make all laws which shall be necessary and proper' for carrying into execution these powers and 'all other powers' vested by the Constitution in the United States or in any department or officer thereof. Article 1, 1, 8. Other provisions show that, while bills can become laws only after being considered and passed by both houses of Congress, each house is to be distinct [273 U.S. 135, 161]   from the other, to have its own officers and rules, and to exercise its legislative function independently. 14 Article 1, 2, 3, 5, 7. But there is no provision expressly investing either house with power to make investigations and exact testimony, to the end that it may exercise its legislative function advisedly and effectively. So the question arises whether this power is so far incidental to the legislative function as to be implied.

In actual legislative practice, power to secure needed information by such means has long been treated as an attribute of the power to legislate. It was so regarded in the British Parliament and in the colonial Legislatures before the American Revolution, and a like view has prevailed and been carried into effect in both houses of Congress and in most of the state Legislatures. 15  

This power was both asserted and exerted by the House of Representatives in 1792, when it appointed a select committee to inquire into the St. Clair expedition and authorized the committee to send for necessary persons, papers and records. Mr. Madison, who had taken an important part in framing the Constitution only five years before, and four of his associates in that work, were members of the House of Representatives at the time, and all voted for the inquiry. 3 Cong. Ann. 494. Other exertions of the power by the House of Representatives, as also by the Senate, are shown in the citations already made. Among those by the Senate, the inquiry ordered in 1859 respecting the raid by John Brown and his adherents on the armory and arsenal of the United States at Harper's Ferry is of special significance. The resolution [273 U.S. 135, 162]   directing the inquiry authorized the committee to send for persons and papers, to inquire into the facts pertaining to the raid and the means by which it was organized and supported, and to report what legislation, if any, was necessary to preserve the peace of the country and protect the public property. The resolution was briefly discussed and adopted without opposition. Cong. Globe, 36th Cong. 1st Sess. pp. 141, 152. Later on the committee reported that Thaddeus Hyatt, although subpoenaed to appear as a witness, had refused to do so; whereupon the Senate ordered that he be attached and brought before it to answer for his refusal. When he was brought in, he answered by challenging the power of the Senate to direct the inquiry and exact testimony to aid it is exercising its legislative function. The question of power thus presented was thoroughly discussed by several senators—Mr. Sumner of Massachusetts taking the lead in denying the power, and Mr. Fessenden of Maine in supporting it. Sectional and party lines were put aside, and the question was debated and determined with special regard to principle and precedent. The vote was taken on a resolution pronouncing the witness' answer insufficient and directing that he be committed until he should signify that he was ready and willing to testify. The resolution was adopted—44 senators voting for it and 10 against. Cong. Globe, 36th Cong. 1st. Sess. pp. 1100-1109, 3006, 3007. The arguments advanced in support of the power are fairly reflected by the following excerpts from the debate:

'Mr. Fessenden of Maine: 'Where will you stop? Stop, I say, just at that point where we have gone far enough to accomplish the purposes for which we were created; and these purposes are defined in the Constitution. What are they? The great purpose is legislation. There are some other things, but I speak of legislation as the principal purpose. Now, what do we propose to do here? We [273 U.S. 135, 163]   propose to legislate upon a given state of facts, perhaps, or under a given necessity. Well, sir, proposing to legislate, we want information. We have it not ourselves. It is not to be presumed that we know everything; and if anybody does presume it, it is a very great mistake, as we know by experience. We want information on certain subjects. How are we to get if? The Senator says, ask for it. I am ready to ask for it; but suppose the person whom we ask will not give it to us: what then? Have we not power to compel him to come before us? Is this power, which has been exercised by Parliament and by all legislative bodies down to the present day without dispute—the power to inquire into subjects upon which they are disposed to legislate—lost to us? Are we not in the possession of it? Are we deprived of it simply because we hold our power here under a Constitution which defines what our duties are, and what we are called upon to do?

'Congress have appointed committees after committees, time after time, to make inquiries on subjects of legislation. Had we not power to do it? Nobody questioned our authority to do it. We have given them authority to send for persons and papers during the recess. Nobody questioned our authority. We appoint committees during the session, with power to send for persons and papers. Have we not that authority, if necessary to legislation? ...

'Sir, with regard to myself, all I have to inquire into is: is this a legitimate and proper object, committed to me under the Constitution; and then, as to the mode of accomplishing it, I am ready to use judiciously, calmly, moderately, all the power which I believe is necessary and inherent, in order to do that which I am appointed to do; and, I take it, I violate no rights, either of the people generally or of the individual, by that course.'

[273 U.S. 135, 164]   'Mr. Crittenden of Kentucky: 'I come now to a question where the cooperation of the two branches is not necessary. There are some things that the Senate may do. How? According to a mode of its own. Are we to ask the other branch of the Legislature to concede by law to us the power of making such an inquiry as we are now making? Has not each branch the right to make what inquiries and investigation it thinks proper to make for its own action? Undoubtedly. You say we must have a law for it. Can we have a law? Is it not, from the very nature of the case, incidental to you as a Senate, if you, as a Senate, have the power of instituting an inquiry and of proceeding with that inquiry? I have endeavored to show that we have that power. We have a right, in consequence of it, a necessary incidental power, to summon witnesses, if witnesses are necessary. Do we require the concurrence of the other house to that? It is a power of our own. If you have a right to do the thing of your own motion, you must have all powers that are necessary to do it.

'The means of carrying into effect by law all the granted powers, is given where legislation is applicable and necessary; but there are subordinate matters, not amounting to laws; there are inquiries of the one house or the other house, which each house has a right to conduct; which each has, from the beginning, exercised the power to conduct; and each has, from the beginning, summoned witnesses. This has been the practice of the government from the beginning; and if we have a right to summon the witness, all the rest follows as a matter of course.'

The deliberate solution of the question on that occasion has been accepted and followed on other occasions by both houses of Congress, and never has been rejected or questioned by either. [273 U.S. 135, 165]   The state courts quite generally have held that the power to legislate carries with it by necessary implication ample authority to obtain information needed in the rightful exercise of that power, and to employ compulsory process for the purpose.

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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: One, 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 disclo- [273 U.S. 135, 174]   sures, but only with such limited power of inquiry as is shown to exist when the rule of constitutional interpretation just stated is rightly applied.

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What has been said requires that the final order in the district court discharging the witness from custody be reversed.

Final order reversed.

Mr. Justice STONE did not participate in the consideration or decision of the case.


[ Footnote 1 ] Rev. Stats. 346, 350, 359, 360, 361, 362, 367 (Comp. St. 515, 522, 533, 535-537, 542); Judicial Code, 185, 212 (Comp. St. 1005, 1176); 25 Stat. 858, 859, c. 382, 3, 5 (Comp. St. 8576, 8584); 26 Stat. 209, c. 647, 4 (Comp. St. 8823); 34 Stat. 816, c. 3935 (Comp. St . 534); 38 Stat. 736, c. 323, 15 (Comp. St. 8835n); United States v. San Jacinto Tin Co., 125 U.S. 273, 278 , 8 S. Ct. 850; Kern River Co. v. United States, 257 U.S. 147, 155 , 42 S. Ct. 60; Ponzi v. Fessenden, 258 U.S. 254, 262 , 42 S. Ct. 309, 22 A. L. R. 879.

[ Footnote 2 ] Cong. Rec. 68th Cong. 1st Sess. pp. 1520, 1521, 1728; c. 16, 43 Stat. 5; Cong. Rec. 68th Cong. 1st Sess. pp. 1591, 1974; 43 Stat. 15, c. 39; 43 Stat. 16, c. 42.

[ Footnote 3 ] For the full resolution and two amendments adopted shortly thereafter see Cong. Rec. 68th Cong. 1st Sess. pp. 3299, 3409, 3410, 3548, 4126.

[ Footnote 4 ] Senate Report No. 475, 68th Cong. 1st Sess.

[ Footnote 5 ] Cong. Rec. 68th Cong. 1st Sess. pp. 7215-7217.

[ Footnote 14 ] Story Const. 545 et seq.; 1 Kent's Com. p. 222.

[ Footnote 15 ] May's Parliamentary Practice (2d Ed.) pp. 80, 295, 299; Cushing's Legislative Practice, 634, 1901-1903; 3 Hinds' Precedents, 1722, 1725, 1727, 1813-1820; Cooley's Constitutional Limitations (6th Ed.) p. 161.